Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 25-7369 In re: Pepperdine University Tuition and D.C. No. Fees COVID-19 Refund Litigation 2:20-cv-04928-DMG-JC ___________________________________ MEMORANDUM* JOSEPH PINZON; MATTHEW REZVANI, individually and on behalf of all others similarly situated, Plaintiffs - Appellees, v. PEPPERDINE UNIVERSITY, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding Argued and Submitted October 19, 2026 Pasadena, California Before: GOULD, N.R. SMITH, and JOHNSTONE, Circuit Judges. Pepperdine University (“Pepperdine”) appeals the district court’s order * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. denying reconsideration of its order granting in part and denying in part summary judgment. The district court certified its order on reconsideration for interlocutory review under 28 U.S.C. § 1292(b), finding that the question “To be enforceable under California law, must the ‘specific promise’ underlying implied-in-fact contracts between universities and students contain ‘clear and unequivocal’ language?” was a controlling question of law. As the parties are familiar with the facts, we do not recount them here. Orders granting partial summary judgment are not final and generally are not immediately appealable. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b). A denial of reconsideration of a non-appealable order is itself not appealable. See Branson v. City of Los Angeles, 912 F.2d 334, 336 (9th Cir. 1990). Section 1292(b) provides a “narrow exception to the final judgment rule.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The statute allows the district court to certify an order for interlocutory appeal when it determines: (1) that there is a controlling question of law, (2) that there is a substantial ground for difference of opinion as to that question of law, and (3) that an immediate appeal may materially advance the ultimate termination of the litigation. See In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). The Court of Appeals may, “in its 2 25-7369 discretion, permit an appeal to be taken from such order.” 28 U.S.C. § 1292(b).1 Interlocutory appeal under § 1292(b) is only appropriate “in extraordinary cases” and is “not intended merely to provide review of difficult rulings in hard cases.” U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). “To determine if a ‘substantial ground for difference of opinion’ exists under § 1292(b), courts must examine to what extent the controlling law is unclear.” Couch, 611 F.3d at 633. Section 1292(b)’s “substantial ground” requirement may be satisfied when “novel legal issues are presented, on which fair-minded jurists might reach contradictory conclusions[.]” Reese v. BP Expl. (Alaska) Inc., 643 F.3d 681, 688 (9th Cir. 2011). For example, this prong may be satisfied if “the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented.” Couch, 611 F.3d at 633 (citation modified). Here, there is not a substantial ground for difference of opinion on the certified question. The district court found a substantial ground for difference of opinion on the certified question because “there already has been much disagreement amongst 1 Although a motions panel granted Pepperdine permission to appeal under § 1292(b), Dkt. No. 3, we have an independent obligation to confirm that we have jurisdiction under § 1292(b). See ICSTI Oregon, Inc. v. Int’l Longshore & Warehouse Union, 22 F.4th 1125, 1130–31 (9th Cir. 2022). 3 25-7369 both the state and federal courts that have considered the ‘specific promise’ standard in COVID tuition refund cases.” But as Pepperdine acknowledges, the controlling California law on the specific promises required for implied contracts between universities and students is not unclear. Instead, courts have applied the standard articulated in Kashmiri v. Regents of the University of California, 67 Cal. Rptr. 3d 635 (Cal. Ct. App. 2007), differently to different facts in different cases. See, e.g., Arredondo v. Univ. of La Verne, 618 F. Supp. 3d 937, 944-45 (C.D. Cal. 2022) (applying Kashmiri to determine the parties’ reasonable expectations at the time of the contract and looking at the “totality of the circumstances” by measuring the definiteness, specificity, or explicit nature of the representation at issue); Nguyen v. Stephens Inst., 529 F. Supp. 3d 1047, 1054-55 (N.D. Cal. 2021); Abuelhawa v. Santa Clara Univ., 529 F. Supp. 3d 1059, 1065-66 (N.D. Cal. 2021); Berlanga v. Univ. of S.F., 318 Cal. Rptr. 3d 782, 789-90 (Cal. Ct. App. 2024); Grant v. Chapman Univ., 341 Cal. Rptr. 3d 563, 565-66 (Cal. Ct. App. 2026). But “[t]hat settled law might be applied differently does not establish a substantial ground for difference of opinion” as to that question of law. Couch, 611 F.3d at 633; see also id. (“[A] party’s strong disagreement with the Court’s ruling is not sufficient for there to be a substantial ground for difference.” (citation modified)). 4 25-7369 In sum, the question presented here does not meet the second requirement of § 1292(b) and interlocutory appeal is not warranted.2 We dismiss this appeal for lack of appellate jurisdiction.3 DISMISSED. 2 Because the order does not meet the second requirement under § 1292(b), we do not address the other requirements. 3 Pepperdine’s motion for judicial notice (Dkt. No. 15) is DENIED. Pinzon’s motion for judicial notice (Dkt. No. 21) is also DENIED. 5 25-7369