ORDER FOLLOWING HEARING ON MOTION TO CERTIFY

LARRY ALAN BURNS, District Judge.

The Court held a hearing today on Defendant Marco Rico's motion to certify that he was acting within the scope of his employment at the time of the events giving rise to Plaintiff's claim. As discussed at the hearing, by May 1, 2018, Rico's counsel may file a letter brief supplementing his argument with citation to an additional case. The government may file a response by May 8. Plaintiffs, if they wish, may also file a response by May 8. After the filing of any supplemental briefing, the motion will be deemed submitted on the papers.

But for the Ninth Circuit's holding in Xue Lu v. Powell, 621 F.3d 944 (9th Cir. 2010), this would be an easy issue. Binding precedent, notably Lisa M. v. Henry Mayo Newhall Memorial Hosp., 12 Ca.4th 291 (1995), appears to lead to the conclusion that Rico was not acting within the scope of his employment. But Xue Lu, which interpreted and applied Lisa M., appears to lead to the opposite conclusion.

Xue Lu has been criticized and rejected, see, e.g., Z.V. v. County of Riverside, 238 Cal.App. 4th 889, 902 (Cal. App. 4 Dist. 2015) (calling Xue Lu's holding as "not persuasive [and] not accurate either as a statement of California law or as an application of it"), though not overruled. To the extent it is applicable here, it is therefore binding on this Court. One way or another, it is likely to be decisive here.

In view of this, after the Court issues its decision on the scope of Rico's employment, the Court would be inclined to certify this issue for interlocutory appeal pursuant to 28 U.S.C. §1292(b) if any party requests it. Such a request may be included in the supplemental briefing.

IT IS SO ORDERED.