Thursday, February 24, 2011

Fourth District Holds That Affirmance of Order Denying Certification on Appeal Bars Subsequent Efforts to Certify Class: Safaie v. Jacuzzi Whirlpool Bath, Inc.

On February 22, 2011, the Fourth District (Division One) published its opinion in Safaie v. Jacuzzi Whirlpool Bath, Inc., __ Cal. App. 4th __(2011), holding that a trial court’s order denying certification, once affirmed on appeal, bars subsequent efforts by the plaintiff to certify a class. Importantly, the Court’s decision makes clear that once remittituer is issued the trial court no longer has any discretion to revisit the issue, even if there is a subsequent change in the law or discovery of new facts. Slip Opinion, at 11-13; 15-17.

In making this ruling, the Court highlighted two distinctions that are important to note.

First, the bar can only operate if the trial court denies certification of all claims alleged by plaintiff. Slip Opinion, at 14. Citing the procedural posture of Tobacco II as an example, the Court reasoned that “[b]ecause the first order denying class certification [in that case] pertained to only one of the claims alleged in the complaint, it did not dispose of all claims between the parties, and thus was not a final, binding appealable order.” See id. “Thus, the plaintiff was free to seek certification on other causes of action alleged in the newly amended complaint.” See id. This distinction sanctions successive certification motions, so long as they are made on a claim by claim basis. Moreover, insofar as a "death knell" order cannot result under this procedural scenario, a plaintiff presumably would not be precluded from seeking reconsideration of the prior denial itself if armed with new facts or new law.  Simply put, as the Court's analysis on this point affords plaintiff counsel a degree of control over when the trial court would be permitted to make a "death knell" certification ruling, plaintiff counsel desiring flexibility to seek reconsideration of a certification ruling (and avoid the Court's ultimate holding) may consider following the procedural path described by the Court when moving for certification. 

Second, the Court concluded that this rule did not preclude successive motions challenging an order certifying a class, in large part, because “when a court certifies a class, the order is not final and cannot be appealed because the action continues between the parties.” See id., at 13. Based on this fact, “‘the rule against successive motions does not … apply to [class action] defendants, who may make any number of motions to decertify” based on new facts elicited during discovery.’” See id., at 14. Of course, as previously discussed in a post located here, any subsequent decertification motion must actually put forward new facts or new law, as a trial court abuses its discretion by decertifying a class absent a material change in the law or the evidence. See Weinstat v. Dentsply International, Inc., 180 Cal. App. 4th 1213, 1226 (2010).

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