Filed 11/5/19 Gomez v. Harley-Davidson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ISAIAH GOMEZ,

Plaintiff and Appellant,

v.

HARLEY-DAVIDSON, INC., et al. ,

Defendants and Respondents.

D076425

(Super. Ct. No. 37-2015-00043311-

CU-BT-CTL)

APPEAL from an order of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Appeal dismissed.

Pestotnik and Ross H. Hyslop for Plaintiff and Appellant.

Dykema Gossett, John M. Thomas, James S. Azadian, and Ashley R. Fickel for Defendants and Respondents.

Isaiah Gomez brought suit against Mycles Cycles, Inc., Harley-Davidson Motor Company Operations, Inc. and various related entities (collectively Harley-Davidson) on behalf of a proposed class of motorcycle purchasers. Gomez eventually obtained class certification. Before trial, however, Harley-Davidson moved to decertify based on information that had come to light during discovery. The court granted the motion, but in its order, requested additional briefing on whether it would be appropriate to certify a more limited class of plaintiffs.

After supplemental briefing and an intervening, relevant decision of the California Supreme Court, the trial court issued an order certifying a smaller class of motorcycle purchasers. Thereafter, Gomez appealed the order decertifying the first class. Because the order left open the possibility of a subsequent class certification (that ultimately did occur), we hold the order is not appealable and dismiss Gomez’s appeal. We also reject his request to treat the appeal as a petition for extraordinary relief.

FACTUAL AND PROCEDURAL BACKGROUND

As stated, Gomez sued Mycles Cycles, Inc. and Harley-Davidson on behalf of a proposed class of motorcycle purchasers. The complaint asserts various claims against Mycles and Harley-Davidson, including breach of warranty, negligence, fraud, and misrepresentation. On August 10, 2018, the trial court partially denied and partially granted Gomez’s motion for class certification.

Thereafter, Harley-Davidson moved to decertify the class based on deposition testimony it obtained in discovery. On June 21, 2019, the court issued an order granting the motion, but also setting a supplemental briefing schedule on Gomez’s request during oral argument to certify a smaller “subclass.” After the supplemental briefing was filed, the California Supreme Court issued its decision in Noel v. Thrifty Payless, Inc. (July 29, 2019) 2019 WL 3403895 (Noel), which overruled authority on which the trial court had relied to decertify the class based on lack of ascertainability.

On August 16, 2019, the court issued a new order, concluding Noel did not entirely invalidate its prior order decertifying the class and certifying a smaller subclass of plaintiffs. Three days later, on August 19, 2010, Gomez filed a notice of appeal of the June 21, 2019 decertification order. On September 5, 2019, the parties entered a stipulation staying proceedings in the trial court until the resolution of the appeal. Several days later Harley-Davidson filed the instant motion to dismiss.

DISCUSSION

Harley-Davidson asserts the June 21, 2019 order is not appealable because it left open the possibility of further class certification and, indeed, that is what occurred. Gomez responds that the decertification order is appealable under the death knell doctrine, and further that he was required to appeal the decision lest he entirely forfeit his appellate rights to challenge the order. He also asserts that “there is no indication the order was ‘without prejudice,’ ” and therefore “it matter[ed] not that the order contemplated the possibility of later certifying a potential subclass.” If the order is not appealable, Gomez asks this court to treat his appeal as a petition for writ of mandate.

Generally, the one final judgment rule “prohibits review of intermediate rulings by appeal until final resolution of the case.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) Case law in California has created an exception to the one final judgment rule, known as the “death knell” doctrine, for orders that effectively dispose of class allegations in a complaint but leave for future resolution the individual claims. (See Shelley v. City of Los Angeles (1995) 36 Cal.App.4th 692, 695.) Under the death knell doctrine, “[t]he denial of certification to an entire class is an appealable order.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) As stated, Gomez contends the trial court’s order granting Harley-Davidson’s motion to decertify the class is an appealable order under the death knell doctrine. We have examined the case law applying the doctrine and have determined that it does not apply here.

The death knell doctrine was established in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 (Daar). In Daar, the Supreme Court held that an order that “determines the legal insufficiency of the complaint as a class suit and preserves for the plaintiff alone his cause of action for damages” has a ” ‘legal effect’ . . . tantamount to a dismissal of the action as to all members of the class other than plaintiff.” (Id. at p. 699, citation omitted.) “[O]rders that only limit the scope of a class or the number of claims available to it . . . do not qualify for immediate appeal under the death knell doctrine; only an order that entirely terminates class claims is appealable.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757-758 (Baycol).) Here, the decertification order explicitly contemplated additional litigation over class certification and left open the possibility of another class certification. It thus did not constitute the “death knell” to Gomez’s class claims. (Baycol, supra, at pp. 757-758; see also Green v. Obledo (1981) 29 Cal.3d 126, 149, fn. 18 [an order partially decertifying a class is nonappealable where the decertified portion of the class and the remaining class significantly overlap]; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806–807 & fn. 4 [an order that terminates some but not all class claims is not an appealable order]; Shelley v. City of Los Angeles, supra, 36 Cal.App.4th at pp. 695–697 [an order partially certifying a class ordinarily is nonappealable]; General Motors Corp. v. Superior Court (1988) 199 Cal.App.3d 247, 251–252 [same].)

Gomez’s claim that he had to appeal “or forever forfeit his ability to obtain appellate review” is also not well taken. A critical assumption underlying the death knell doctrine is that “without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination.” (Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 469-470.) An exception to the one final judgment rule, therefore, is “necessary because ‘[i]f the propriety of [a disposition terminating class claims] could not now be reviewed, it can never be reviewed[…]’ ([Daar, supra, 67 Cal.2d] at p. 699.)” (Baycol, supra, 51 Cal.4th at p. 758.)

In Daar, the court was “understandably reluctant to recognize a category of orders effectively immunized by circumstance from appellate review. This risk of immunity from review arose precisely, and only, because the individual claims lived while the class claims died.” (Baycol, supra, 51 Cal.4th at p. 758, italics added.) Here, a class—albeit a limited one—lives on, eliminating the risk that the decertification order will escape review. The intermediary rulings decertifying the class and later certifying a limited class will be reviewable from the final judgment. (See Baycol, supra, 51 Cal.4th at p. 756 [” ‘ “The theory [behind the one final judgment rule] is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.” ‘ “].)

The cases cited by Gomez to support his assertion that he had to appeal the June 21, 2019 order to avoid forfeiting his appellate rights are either distinguishable or inapplicable. In Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806 (Stephen) the Court of Appeal affirmed an order denying a renewed motion for class certification brought under the auspices of Code of Civil Procedure section 1008, subdivision (b). (Stephen, supra, at p. 809.) The court concluded that the plaintiff could not use that provision to circumvent the finality of a decision six-months earlier denying class certification. Rather, the plaintiff’s failure to timely appeal from that death knell order forfeited any challenge to it. (Id. at p. 817.) Unlike the decertification order at issue here, the order in Stephen was the death knell to the litigation, and the plaintiff sat on his rights.

Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894 is also inapposite. That case considered the timeliness of a notice of appeal of a death knell order where the respondent argued that the court clerk had given notice of entry to trigger the 60-day time limit of California Rules of Court, Rule 8.104(a)(1), but plaintiff contended the documents served by the clerk did not trigger the time limit. The Supreme Court agreed with the plaintiff, reversing the decision of the Court of Appeal and remanding for the court to consider the appeal. (Alan v. American Honda Motor Co., Inc., supra, at p. 897.) The case is not relevant to the determination of whether an order decertifying a class constitutes an appealable death knell.

Gomez’s assertion that Baycol supports appealability here is also wrong. Baycol holds that where the individual plaintiff’s claims are dismissed at the time class certification is denied, the death knell doctrine does not apply. Rather, “[w]hen instead an order terminates both class and individual claims, there is no need to apply any special exception to the usual one final judgment rule to ensure appellate review of class claims. Instead, routine application of that rule suffices to ensure review while also avoiding a multiplicity of appeals.” (Baycol, supra, 51 Cal.4th at p. 754.) Baycol does not, as Gomez contends, support his argument that the June 21, 2019 order constituted the death knell to his class claims. On the contrary, as discussed, the order explicitly contemplated further litigation of class issues that ultimately resulted in certification.

Finally, we reject Gomez’s request to treat his improper appeal as a petition for writ of mandate. He argues the trial court’s statement at the August 16, 2019, hearing that Noel required the court to revisit its decertification order, shows the court’s June 21, 2019 order was wrong as a matter of law and constitutes an unusual circumstance justifying review now. Specifically, he points to four alleged errors he claims constitute unusual circumstances: (1) The court acted contrary to Noel’s holding that manageability concerns will rarely preclude class certification, (2) the court’s decertification order improperly framed predominance in the nature of ascertainability, (3) the decertification order improperly made merits-based rulings, and (4) the court improperly excluded “vast swaths” of his evidence in opposition to the motion to decertify. None of these arguments persuade us to grant extraordinary relief.

In Olson v. Cory (1983) 35 Cal.3d 390 (Olson), the California Supreme Court held it was appropriate to treat an attempted appeal from a nonappealable order as a petition for an extraordinary writ when (1) requiring the parties to wait for a final judgment might lead to unnecessary trial proceedings; (2) the briefs and record included, in substance, the necessary elements for a proceeding for a writ of mandate; (3) there was no indication the trial court would appear as a party in a writ proceeding; (4) the appealability of the order was not clear; and (5) the parties urged the court to decide the issues rather than dismiss the appeal. (Id. at pp. 400-401, italics added.) The court cautioned, however, that the power to treat an appeal from a nonappealable order as a petition for a writ of mandate should not be exercised except under unusual circumstances. (Id. at p. 401; see also Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770, fn. 16 [An attempted appeal from a nonappealable order should be treated as a writ petition only in ” ‘ “extraordinary circumstances.” ‘ “].)

In Olson, “that the issue of appealability was far from clear in advance” was an unusual circumstance justifying the Supreme Court’s decision to treat the purported appeal as a petition for a writ of mandate. (Olson, supra, 35 Cal.3d at p. 401.) Significantly, as explained, appealability here is clear. The order is not appealable. Further, the trial court revisited its decertification order, and based on Noel, changed its position and certified a limited class. Contrary to Gomez’s assertion in his opposition to the motion to dismiss, that August 16, 2019 order shows the trial court did consider Noel and revised its decision accordingly.

In addition, Gomez has not shown that an appeal after final judgment would not provide an adequate remedy at law. He argues that an appellate decision overturning the now superseded decertification order could prompt settlement or prevent the necessity of another trial should a later challenge to that order succeed. This alone is not sufficient to warrant review of the order. (See Baeza v. Superior Court (2011) 201 Cal.App.4th 1214, 1221 [” ‘A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of an extraordinary writ.’ “].) The alleged errors Gomez advances can be addressed in due course. Critically, the order he challenges is itself now outdated. In sum, Gomez has not shown the requisite extraordinary or unusual circumstances necessary for us to exercise jurisdiction.

DISPOSITION

The appeal is dismissed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

O’ROURKE, J.