Dale S. Fischer, United States District Judge

Barbara Faye Enloe Hadsell, Dan Stormer, David Clay Washington, Tanya Sukhija-Cohen, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff.

Jonathan C. Bond, S Frank Harrell, Jesse Keenon Cox, Norman J. Watkins, Lynberg and Watkins APC, Orange, CA, for Defendants County of Orange, Anthony Montoya, Michael Johnson, Brent Lind.

Jesse Keenon Cox, Jonathan C. Bond, Norman J. Watkins, Lynberg and Watkins APC, Orange, CA, for Defendant Sherriff Sandra Hutchens.

Jesse Keenon Cox, Jonathan C. Bond, S Frank Harrell, Lynberg and Watkins APC, Orange, CA, for Defendants Brad Carrington, John Frey.

Order GRANTING Motion to Stay [120]

Dale S. Fischer, United States District Judge

Defendants move for a stay pending their interlocutory appeal of this Court's order granting in part and denying in part their motion for summary judgment. Dkt. 120 (Mot.). Plaintiff Susan Peck opposes. Dkt. 140 (Opp'n). The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 ; Local Rule 7-15. For the reasons stated below, the motion is GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

The facts in this case have been recounted in detail in the Court's order granting in part and denying in part Defendants' motion for summary judgment, dkt. 108 (Summ. J. Order), and will not be repeated in their entirety here. In summary, this case arises from a February 6, 2018 incident in which five Orange County Sheriff's Department deputies shot and killed Paul Mono while responding to a dispatch call. Id. at 3-8. Plaintiff Susan Peck, Mono's widow, has brought this civil rights action against Orange County, the deputies, and other Sheriff's Department officials.

On November 18, 2020, the Court issued an order granting in part and denying in part Defendants' motion for summary judgment. The Order granted summary judgment in favor of Defendants on Peck's failure to intervene claim, unreasonable seizure of person claim, and Peck's state law claims except her wrongful death claim. Id. at 11-27. It denied summary judgment on Peck's excessive force claim, deprivation of familial relationship claim, Monell claim, discrimination (under the Americans with Disabilities Act (ADA) and Rehabilitation Act) claims, and wrongful death claim. Id.

On December 18, 2020, Defendants filed a notice of appeal seeking interlocutory review of the Court's denial of qualified immunity. Dkt. 113. Defendants asserted qualified immunity as a defense to Peck's excessive force, failure to intervene, deprivation of familial relationship, and unreasonable seizure of person claims. Summ. J. Order at 9-18. On February 25, 2020, Defendants moved to stay this action pending their interlocutory appeal. II. DISCUSSION

Defendants argue (1) their appeal of the Court's denial of qualified immunity on Peck's section 1983 claims to the Ninth Circuit divested this Court of jurisdiction entirely and (2) alternatively, in light of the pending appeal, a stay is warranted.

A. This Court's Jurisdiction

Under 28 U.S.C. § 1291, circuit courts generally lack jurisdiction to hear interlocutory appeals from the denial of summary judgment. However, an exception applies where the movant was denied summary judgment on qualified immunity grounds. Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d 938, 944 (9th Cir. 2017) (citing Knox v. Southwest Airlines, 124 F.3d 1103, 1106 (9th Cir. 1997) ). This is because qualified immunity is an immunity from suit rather than merely an affirmative defense, and the immunity "is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 512, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ; see also Isayeva, 872 F.3d at 944-45. Accordingly, the circuit court has jurisdiction over an interlocutory appeal from a denial of summary judgment to "review a denial of qualified immunity where a defendant argues ... that the facts, even when considered in the light most favorable to the plaintiff, show no violation of a constitutional right, or no violation of a right that is clearly established in law." Isayeva, 872 F.3d at 945 (alteration in original) (quoting Ames v. King County, Wash., 846 F.3d 340, 347 (9th Cir. 2017) ).

"The filing of a notice of appeal is an event of jurisdictional significance – it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). If the appeal is not frivolous or waived, the district court "retains jurisdiction to address aspects of the case that are not the subject of the appeal." United States v. Pitner, 307 F.3d 1178, 1183 n.5 (9th Cir. 2002). This Court therefore no longer has jurisdiction over any claims subject to Defendants' appeal.

Peck argues her excessive force and deprivation claims – even though they are subject to a qualified immunity defense – are not themselves the subject of Defendants' appeal. Opp'n at 6. The Court disagrees. "Most courts have construed the ‘subject of the appeal’ to include the claims subject to the immunity defense. The district court thus loses jurisdiction of not only the immunity defense but also of those underlying claims." Andrade Rico v. Beard, No. 2:17-cv-1402-KJM, 2019 WL 4127206, at *2 (E.D. Cal. Aug. 30, 2019).

Peck's Monell, discrimination, and wrongful death claims, however, are not directly on appeal. Defendants argue the Court is without jurisdiction to proceed to trial even on these claims because they relate to the appeal. Mot. at 10-12. But the appeal solely addresses qualified immunity. The district court is therefore divested of jurisdiction over claims subject to a qualified immunity defense only. See, e.g., Leibel v. City of Buckeye, 382 F. Supp. 3d 909, 913 n.1 (D. Ariz. 2019) ("A district court isn't divested of jurisdiction to address aspects of the case that are not the subject of the appeal. Additionally, defense counsel acknowledged ... that he was unaware of any case law suggesting that qualified immunity-related interlocutory appeal as to § 1983 causes of action would divest a district court of jurisdiction over factually related but distinct state-law causes of action." (citation and internal quotation marks omitted)).

B. Frivolity of the Appeal

In opposing the Motion, Peck repeatedly states that Defendants' appeal is frivolous. See, e.g., Opp'n at 4. Defendants argue Peck's "attempts to shoehorn in [to the Opposition] a request that Defendants' appeal be deemed ‘frivolous,’ despite never having advanced a noticed motion that ensures Defendants' due process rights and ability to respond to such a request are protected" is improper. Dkt. 166 (Reply) at 4. Because the Court finds the appeal is not frivolous, it need not consider if Peck's argument was procedurally proper.

Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992), authorizes a district court to certify in writing that an appeal is frivolous or waived; if the court issues such a certification, the appeal does not automatically divest the district court of jurisdiction to continue the proceedings on the issues involved in the appeal. In her Opposition, Peck asserts that Defendants' appeal is frivolous because "this Court has previously determined there is a dispute as to whether Mr. Mono ever moved toward or touched a gun, let alone pointed one at anyone." Opp'n at 14.

"An appeal is frivolous if it is ‘wholly without merit.’ " United States v. Kitsap Physicians Serv., 314 F.3d 995, 1003 n.3 (9th Cir. 2002) (quoting Amwest Mortg. Corp. v. Grady, 925 F.2d 1162, 1165 (9th Cir. 1991) ); see also In re George, 322 F.3d 586, 591 (9th Cir. 2003) ("An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit."). "This means that the appeal must be ‘so baseless that it does not invoke appellate jurisdiction,’ such as when ‘the disposition is so plainly correct that nothing can be said on the other side.’ " Schering Corp. v. First DataBank, Inc., No. C 07-01142 WHA, 2007 WL 1747115, at *3 (N.D. Cal. June 18, 2007) (quoting Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989) ).

The grounds of Peck's argument are unclear. To the extent she argues there is a disputed question of fact, making qualified immunity inappropriate, the Court disagrees. There is a somewhat long and confusing history relating to the issue of whether appellate courts have jurisdiction to hear interlocutory appeals from a denial of qualified immunity when the question involves a matter of fact not a matter of law. See Tuuamalemalo v. Greene, 946 F.3d 471, 479-485 (9th Cir. 2019) (Fletcher, J., concurring). This Court need not delve deep into the issue because there are questions of fact as well as law on Peck's excessive force and deprivation of familial relationship claims. In its Summary Judgment Order, this Court noted there was a question of material fact on Peck's excessive force claim as to whether Mono brandished a weapon at officers, but it also identified numerous other – non-disputed facts – that cut against granting summary judgment. Summ. J. Order at 12-13. Whether the non-disputed facts should entitle the officers to qualified immunity is certainly appealable. Additionally, the Court does not find the appeal is wholly without merit.

C. Stay Request

Even though the Court has determined it retains jurisdiction over the Monell, discrimination, and wrongful death claims, a stay pending appeal may nevertheless be warranted. See May v. Sheahan, 226 F.3d 876, 880 n.2 (7th Cir. 2000) ("The district court has authority to proceed forward with portions of the case not related to the claims on appeal such as claims against other defendants or claims against the public official that cannot be (or simply are not) appealed. Still, a district court might find it best to stay an entire case pending the resolution of a[n interlocutory qualified immunity] appeal.").

"District courts have inherent authority to stay proceedings before them ...." Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003), abrogated on other grounds by Ryan v. Gonzales, 568 U.S. 57, 133 S.Ct. 696, 184 L.Ed.2d 528 (2013). The power to stay is "incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). Further, every court has the power "to manage the cases on its docket and to ensure a fair and efficient adjudication of the matter at hand." Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal. 1997) (citing Gold v. Johns-Manville Sales Corp, 723 F.2d 1068, 1077 (3d Cir. 1983) ). The decision whether to stay a civil action is left to the sound discretion of the district court. Rohan, 334 F.3d at 817.

The parties put forth two different sets of factors to be considered when deciding whether to stay a case. Peck contends the court should apply the factors set out by the Supreme Court in Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) and Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). Opp'n at 11-12. Under Nken, courts examine: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." 556 U.S. at 426, 129 S.Ct. 1749 (quoting Hilton, 481 U.S. at 776, 107 S.Ct. 2113 ).

Defendants, on the other hand, argue the Court should look to Landis. Reply at 5-7. In Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005), the Ninth Circuit noted a district court "has discretionary power to stay proceedings in its own court under Landis," and explained:

Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.

Id. at 1110 (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) ).

District courts in this circuit have catalogued a divide "regarding the appropriate standard by which a district court is to exercise its discretion in whether to grant a stay pending an interlocutory appeal." United States ex rel. Atlas Copco Compressors LLC v. Rwt LLC, No. 16-00215 ACK-KJM, 2017 WL 2986586, at *11 n.11 (D. Haw. July 13, 2017) ; see also Finder v. Leprino Foods Co., No. 1:13-CV-02059-AWI-BAM, 2017 WL 1355104, at *2-3 (E.D. Cal. Jan. 20, 2017) (reviewing different lines of authority).

However, "a review of the case law suggests that district courts that have directly confronted the question have overwhelmingly concluded that the Landis test or something similar governs." Kuang v. U.S. Dep't of Defense, No. 18-cv-03698-JST, 2019 WL 1597495, at *3 (N.D. Cal. Apr. 15, 2019) (collecting cases). "Those courts have reasoned that the Nken test ‘is applicable when there is a request to stay a district court's judgment or order pending an appeal of the same case,’ while Landis applies to the decision to stay proceedings ...." Id. (quoting 23andMe, Inc. v. Ancestry.com DNA, LLC, No. 18-CV-02791-EMC, 2018 WL 5793473, at *3 (N.D. Cal. Nov. 2, 2018) ).

The Court agrees with these courts that the relevant considerations here are more akin to those the Landis test is designed to address. " Landis broadly states that the ‘power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.’ " 23andMe, 2018 WL 5793473, at *3 (quoting Landis, 299 U.S. at 254, 57 S.Ct. 163 ). These same concerns exist here where the question the Ninth Circuit will answer regarding qualified immunity will likely bear on questions that must be answered in resolving Peck's non- section 1983 claims.

By contrast, different concerns predominate when a court decides whether to stay an injunction or other order. There, the overarching question is not whether going forward with the litigation will be inefficient for the parties and the court, but rather if equity demands that the court preserve the pre-judicial-relief status quo pending the appellate court's determination of the correctness of that relief.

Kuang, 2019 WL 1597495, at *3 (internal quotation marks omitted).

For these reasons, this Court will consider Defendants' request for a stay under the Landis factors described by the Ninth Circuit in Lockyer : (1) "the possible damage which may result from the granting of a stay," (2) "the hardship or inequity which a party may suffer [if the case is allowed] to go forward," and (3) "the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay." Lockyer, 398 F.3d at 1110 (quoting CMAX, 300 F.2d at 268 ).

First, a stay of all claims would substantially simplify issues, proof, and questions of law. In the instant case, the Monell claim against the County and its sheriff is based entirely on a ratification theory of liability. A local government may be held liable under section 1983 when "an official with final policy-making authority ratified a subordinate's unconstitutional decision or action and the basis for it." Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (emphasis added). Thus, if the Court does not stay the Monell claim, the Court and jury would eventually have to evaluate the individual deputies' conduct, even though that same conduct is the subject of the interlocutory appeal. Unless the Court stays litigation on the Monell claim, the trial may be rendered moot by the Ninth Circuit's ruling on appeal.

For example, in Monfils v. Taylor, 165 F.3d 511, 519 (7th Cir. 1998), the Seventh Circuit had to decide the issue of qualified immunity after a jury had already found that an individual defendant had violated the plaintiff's constitutional rights under section 1983. As a result, the Seventh Circuit was placed in the "unique situation ... of having to determine whether the individual claim against [the individual defendant] must be tried – which would really be a second trial of the issue." Id. The Seventh Circuit later cited this case as an example of why "a district court might find it best to stay an entire case pending the resolution of a [qualified immunity] appeal." See May, 226 F.3d at 880 n.2.

While Peck's other claims – her discrimination claims and wrongful death claim – are not as intertwined with the section 1983 claims as her Monell claim is, there is still overlap. Previously, Defendants argued summary judgment was appropriate on the discrimination claims because Mono posed a direct threat to the health and safety of the officers, which the court found "tracks the reasonableness considerations in a Fourth Amendment use of force analysis." Summ. J. Order at 25; see Vos v. City of Newport Beach, 892 F.3d 1024, 1037 (9th Cir. 2018) (recognizing that a "reasonableness determination" as to use of force "inform[s] an accommodation analysis").

Peck's wrongful death claim is a state law counterpart of a federal excessive force claim and implicates the same reasonableness considerations as a Fourth Amendment excessive force analysis. See Moore v. City of Berkeley, No. C14-00669, 2016 WL 6024530, at *7 (N.D. Cal. Oct. 14, 2016) ("In California, state law claims for wrongful death and battery at the hands of the police rise and fall with federal Section 1983 claims."), vacated in part 2018 WL 1456628 (N.D. Cal. Mar. 23, 2018) ; Donaldson v. United States, No. 15-CV-908 JLS, 2018 WL 1089986, at *13 (S.D. Cal. Feb. 26, 2018) ("[C]laims of excessive force under California law are analyzed under the same standard of objective reasonableness used in Fourth Amendment claims."). The overlap in issues favors a stay.

The Court also finds a balancing of the parties' interests weighs in favor of a stay. First, a stay will serve the purpose of qualified immunity – to avoid trial and the burdens of pretrial matters. Behrens v. Pelletier, 516 U.S. 299, 308, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). Second, a stay will not dramatically postpone the timeline of this case. The parties' appellate briefs are due in the next few months. Dkt. 120-1 ¶ 4. While a jury trial was originally supposed to take place in April 2021, the Court notified the parties that a trial will not proceed then due to the COVID-19 pandemic and requested the parties choose an alternative date no earlier than September 13, 2021. Dkt. 169. Finally, because fact and expert discovery are already closed, Peck's discovery rights will not be frustrated by a stay.

In short, a stay of the claims against Defendants is in the interest of "economy of time and effort for [the Court], for counsel, and for litigants," Landis, 299 U.S. at 254, 57 S.Ct. 163, and also would "ensure a fair and efficient adjudication of the matter at hand," Rivers, 980 F. Supp. at 1360. For these reasons, the Court exercises its discretion and STAYS the entire case.

III. CONCLUSION

The Court no longer has jurisdiction over Peck's section 1983 claims. The Court STAYS Peck's remaining claims until resolution of Defendants' qualified immunity appeal. This does not, of course, impact the ability of the "Non-shooting Deputy Defendants" to appeal the Court's recently entered denial of their motion for summary judgment. See Dkt. 170.

The trial and pretrial conference dates are vacated. The parties are ordered to file a joint status report every 120 days and to notify the Court within 10 days of receipt of a decision from the Ninth Circuit Court of Appeals.

IT IS SO ORDERED.