Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Los Angeles County. Daniel Solis Pratt, Judge, JCCP No. 4412.
The Law Offices of Jon Webster, Jon Webster and Alexandra Seldin for Defendants and Appellants Anthony Alvo and Daniel Fernandez.
Rockard J. DelGadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Kim Rodgers Westhoff, Deputy City Attorney, for Plaintiff and Respondent City of Los Angeles.
OPINION
McKinster, J.
This appeal presents two issues: Did the trial court abuse its discretion when it denied a petition to certify a collective action pursuant to the Fair Labor Standards Act (29 U.S.C. § 216(b))? If so, did the denial of certification offend due process? Because we conclude that the order is not appealable, however, we need not reach either issue.
FACTUAL AND PROCEDURAL HISTORY
On August 9, 2001, the City of Los Angeles (the city) filed a complaint in San Bernardino County Superior Court for breach of contract, quantum meruit and fraud against Anthony Alvo, a resident of that county, alleging that Alvo was required by the terms of a contract he signed upon his employment as a police officer with the Los Angeles Police Department (LAPD) to reimburse the city $34,000, representing a portion of the cost the city incurred in training Alvo. The contract, referred to in these proceedings as the “acknowledgment,” provides that if Alvo left the employ of the LAPD less than 60 months after he completed his training at the Los Angeles Police Academy and was hired by another law enforcement agency within one year after leaving the LAPD, he would be required to repay a prorated portion of the cost of his training at the police academy. Alvo answered the complaint, denying the allegations and asserting affirmative defenses, including the illegality of the acknowledgment. Alvo and Daniel Fernandez filed a cross-complaint and then a first amended cross-complaint, on behalf of themselves and others similarly situated. Fernandez was also a former LAPD officer who had signed the acknowledgment, and the city had threatened him with legal action. However, as of the date of filing the cross-complaint, the city had not yet filed suit against him.
The document is entitled “Acknowledgment of Los Angeles Police Department’s Intent To Seek Reimbursement Of Costs Of Basic And Lateral Training, And Agreement To Repay Pro-Rated Costs Of Training.” It is authorized by Los Angeles Administrative Code section 4.1700.
The first amended cross-complaint alleged, among other things, that the acknowledgment violates provisions of the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) which prohibit an employer from compelling an employee to refund any portion of his or her wages. (29 U.S.C. §§ 206, 215(a)(2); 29 C.F.R. § 531.35 (2007).) Title 29 United States Code section 216(b) (hereafter section 216(b)) authorizes the filing of a complaint on behalf of the plaintiff and others similarly situated. (29 U.S.C. § 216(b).) Alvo and Fernandez sought a declaration that the acknowledgment agreement violated the FLSA, restitution of all back wages and/or sums seized or recovered from those similarly situated to the named cross-complainants, and for liquidated damages according to the statute. Approximately 28 other individuals filed notices opting in to the cross-complaint.
The cross-complaint asserted additional causes of action; however, this appeal pertains solely to the cause of action for violation of the FLSA.
As it pertains to the issues in this case, section 216(b) provides as follows:
In collective actions brought pursuant to the FLSA, employees wishing to be part of the action must opt in, rather than opting out as in most class action suits. (29 U.S.C. § 216(b).)
The city filed breach of contract claims in Los Angeles County against four additional defendants. Alvo and Fernandez sought to have all of the lawsuits litigated in a coordinated proceeding in San Bernardino County. (The suit against Alvo was filed in San Bernardino County because he resides there.) The chair of the Judicial Council authorized the presiding judge of the San Bernardino Superior Court to assign a coordination judge. Judge Shahla Sabet was assigned. Judge Sabet ordered coordination of the five cases, and recommended that the cases be tried in Los Angeles County, outside the city limits of the City of Los Angeles. Judge Sabet designated this court as the court for any writ or appellate relief. Judge Sabet also ordered that seven additional “add-on” cases, which had by then been filed, be stayed until a coordination judge had been appointed and had ruled on the appropriateness of coordinating the add-on cases.
Section 404.2 of the Code of Civil Procedure provides that the coordination motion judge shall select the reviewing court having appellate jurisdiction if the actions to be coordinated are within the jurisdiction of more than one appellate court. In contrast, the coordination motion judge merely recommends to the chair of the Judicial Council a particular superior court for trial of the coordination proceedings. (Cal. Rules of Court, rule 3.530(a).)
Judge Daniel Solis Pratt, sitting in Norwalk, was assigned as the coordination judge. Judge Pratt ordered what was by then a total of 34 cases coordinated. However, litigation would proceed only on the original five cases. The remaining cases, and any additional cases filed thereafter, would be stayed pending resolution of the five original cases.
Thereafter, Alvo and Fernandez filed a petition to certify the case as a collective action pursuant to section 216(b). Judge Pratt denied the motion. Judge Pratt acknowledged that this order effectively eliminated all cross-complainants except Alvo and Fernandez.
Alvo and Fernandez (hereafter defendants) filed a timely notice of appeal from the order denying certification.
THE ORDER DENYING CERTIFICATION AS A COLLECTIVE ACTION IS NOT APPEALABLE
An order denying certification of a class in a class action suit may be appealed immediately under California’s so-called “death knell” doctrine. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699.) Denial of certification of a class is “tantamount to a dismissal of the action as to all members of the class other than plaintiff” and, as to those class members, “‘prevents further proceedings as effectually as would any formal judgment.’ [Citations].” (Ibid.) Moreover, because many class action suits involve claims which are too small to warrant individual litigation, denial of class certification may operate to deprive class members of any remedy. (See Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 469.) Therefore, denial of certification effectively sounds the death knell for the claims of many class members and is considered a final judgment. (Daar v. Yellow Cab Co., supra, at p. 699.) In contrast, an order denying coordination is not appealable because it does not preclude either action from proceeding; rather, each action will proceed in the court in which it is pending. (Lautrup, Inc. v. Trans-West Discount Corp. (1976) 64 Cal.App.3d 316, 317-318.)
The United States Supreme Court rejected the death knell doctrine in federal class action suits, holding, that, “[a]n order refusing to certify, or decertifying, a class does not of its own force terminate the entire litigation because the plaintiff is free to proceed on his individual claim.” (Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 467.)
Here, because the trial court referred to the proposed collective action as “akin” to a class action, defendants contend that the order denying certification is immediately appealable. We disagree. Whether an order constitutes a final judgment depends upon the legal effect of the order. (Daar v. Yellow Cab Co., supra, 67 Cal.2d at pp. 698-699.) Defendants contend that denial of the proposed collective action in this case “terminated the trial court proceedings” for all of the individuals who had attempted to opt in as cross-complainants. This is simply not true. As defendants acknowledge, all but two of the individuals who attempted to opt in as cross-complainants have since been sued by the City of Los Angeles for breach of contract under the acknowledgment. All of those complaints have been ordered coordinated with the original action. Those individuals may also file cross-complaints if they believe they are entitled to affirmative relief, as opposed to relying on the FLSA as a defense. As to the two other individuals who had not been sued by the city as of the date of filing the briefs in this case, they may file actions for declaratory relief and move for coordination of their cases with the original action, or wait until they are sued by the city. Thus, denial of certification does not deprive any of these individuals of a remedy, and it therefore cannot be said to sound a death knell to their litigation.
We take judicial notice of the complaints filed by the city against these individuals, as requested by defendants. (Evid. Code, § 452, subd. (d).)
We recognize that defendants argued in the trial court that cross-complaints for some individuals may be time-barred unless they are allowed to join in the original cross-complaint. They have not presented any facts or legal authority in support of this contention, however.
DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
We concur: Ramirez, P.J., Gaut, J.
“Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. . . .”