Monday, September 24, 2012

Second District Finds Additional Exception to Death Knell Doctrine, Inches California Law Closer to Federal Rule Permitting Successive Certification Motions: Aleman v. Airtouch Cellular

On September 20, 2012, the Second District Court of Appeal (Division 2) dismissed an appeal of a trial court order denying class certification in Aleman v. Airtouch Cellular, __ Cal.App.4th __;  2012 Cal. App. LEXIS 993 (2012), concluding that appeal was premature because the order made clear that the denial was “without prejudice”, entitling plaintiffs to bring a second motion for certification:
All named plaintiffs collectively moved for class certification. They now argue that the order denying their motion constituted a death knell. We disagree. The death knell has not yet sounded. The remaining plaintiffs' ability to pursue class certification has not been terminated. Because the denial order was without prejudice, the remaining plaintiffs are free to move for class certification again. (See Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718 [] [“The term ‘without prejudice,’ in its general adaptation, means that there is no decision of the controversy on its merits, and leaves the whole subject in litigation as much open to another application as if no suit had ever been brought.”].) The advisability of following such a course of action is left for plaintiffs and their lawyers to decide. 
Slip Opinion, at 29-31 (2012 Cal. App. LEXIS 993, 53-55).

The Court’s holding not only provides an additional exception to the “death knell” doctrine, previously discussed here and here, it also seemingly provides an exception to the “rule against successive certification motions”,  enunciated over 20 years ago in Stephen v. Enterprise Rent-A-Car, 235 Cal. App. 3d 806 (1991).  As explained in Stephen, California procedural law – unlike the Federal Rules – required an immediate appeal upon denial of certification specifically because successive motions are not permitted:
It is only in the absence of relevant state precedent that courts turn to federal law and rule 23 for guidance. []  State and federal courts parted company on the appealability issue 24 years ago in Daar v. Yellow Cab Co., supra, 67 Cal.2d 695. It follows from that split and the cases discussed above that state and federal law diverge on allowing successive motions to certify. CA(5)(5)  Like federal policy, state policy favors prompt and early class determinations. ( Massey v. Bank of America (1976) 56 Cal. App. 3d 29, 32 [] [dismissal after a nearly five-year delay].) However, to follow federal policy on renewed motions after a death-knell denial is impractical, and state policy can be administered with enough flexibility to avoid inequity. Plaintiffs lacking adequate evidence on class issues may reasonably defer moving to certify or seek a continuance to gather evidence, and trial courts should avoid ruling on the merits until satisfied that a plaintiff has had a fair opportunity to present the case for certification. Also, the right of appeal and consequent limitation on bringing renewal motions applies only to death-knell rulings, where a plaintiff has a right to immediate appellate review to correct error. Appellate courts will be sensitive to claimed abuses of discretion when reviewing such orders. 
See Stephen, 235 Cal. App. 3d at 814.

Although the Aleman Court did not discuss the rule annunciated in Stephen in its opinion, Aleman’s analysis does not necessarily conflict with Stephen’s analysis.  However, due to Stephen’s sweeping discussion of the policy underpinning the basis for the rule, I likely would err on the side of caution by filing an immediate appeal if there were any doubt as to whether the trial court actually intended to entertain a second certification motion.