No appeal of certification denial while other claims are pending

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Decisions

December 4, 2012

No appeal of certification denial while other claims are pending 

An order denying class certification of several claims while others are stayed pending state supreme court review in another case does not sound the “death knell” that allows appeal from an interlocutory order, a California appellate court held.

Jose Moreno and Otto Pascual were employees of landscaping company Golden State. They filed a class action on behalf of 1,000 employees, alleging eight wage-and-hour claims. The trial court stayed several allegations involving rest and meal breaks pending state high court review of similar issues in a different case, leaving only the plaintiffs’ claims that they were unpaid for time spent traveling to and from work and time spent working off the clock. The court then denied certification of the unpaid-time claims, finding common questions did not predominate. The court also denied the plaintiffs’ subsequent motion to certify subclasses for each allegation. The plaintiffs appealed, which the defendants argued was premature because the certification order was not a final judgment.

Dismissing the appeal, the appellate court noted that the “one final judgment” rule prohibiting appeals until final resolution is a fundamental principle of appellate practice. One limited exception, which the court said must be used sparingly, is the “death knell” doctrine, which treats an intermediate order in a class action as a final judgment when it is “tantamount to a dismissal of the action as to all members of the class other than plaintiff.” An order denying certification is a final judgment if it “virtually demolishes” the class action.

The court said the death-knell doctrine is tightly defined and narrowly applied and is predicated on the assumption that the named plaintiff will lack incentive to pursue claims to final judgment absent group recovery. Thus, orders that only limit the scope of a class or the number of claims available are not tantamount to dismissal because they do not dispose of their claims or incentives entirely.

The order denying certification of the plaintiffs’ unpaid-time allegations did not resolve the pending claims for meal and rest periods, which involve a putative class that may significantly overlap with the unpaid-time classes, the court noted. Because these claims are pending, the plaintiffs still have incentive to press on until they obtain a final judgment, the court reasoned.

Further, the plaintiffs are also pursuing an unpaid-time claim under the state’s Labor Code Private Attorneys General Act. Although that is not a class action and does not require certification, it must be brought as a representative action that includes other employees. The plaintiffs are still seeking civil penalties under the act, and thus putative class members also retain a stake in the lawsuit, the court said.

Accordingly, the plaintiffs cannot appeal the certification denial until after a final judgment has been reached, the court concluded.

Citation: Moreno v. J. Redfern, Inc., No. A133046 (Cal. App. Nov. 30, 2012).


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