Opinion
F077604
07-08-2020
DAVE MEZA, Plaintiff and Appellant, v. PACIFIC BELL TELEPHONE COMPANY, Defendant and Respondent.
The Dion-Kindem Law Firm, Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. Blanchard III for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Thomas R. Kaufman; Mayer Brown and Donald M. Falk for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BCV-15-101572)
OPINION
APPEAL from an order of the Superior Court of Kern County. Stephen D. Schuett, Judge. The Dion-Kindem Law Firm, Peter R. Dion-Kindem; The Blanchard Law Group and Lonnie C. Blanchard III for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Thomas R. Kaufman; Mayer Brown and Donald M. Falk for Defendant and Respondent.
-ooOoo-
Plaintiff appeals from an order partially granting and partially denying class certification in his action against his former employer alleging wage and hour violations. Defendant moved to dismiss the appeal, asserting the order was nonappealable and the "death knell" doctrine did not make it appealable because the class claims were not effectively dismissed as a result of the order. In response, plaintiff requested that, if the order is nonappealable, we treat the appeal as a petition for writ of mandate and determine it on the merits.
The trial court certified one proposed class or subclass, so the class claims were limited, not terminated, by the trial court's order. The operative complaint also contained a representative cause of action on behalf of the same employees who made up the proposed classes, including the proposed classes that were not certified. Consequently, we conclude the death knell doctrine does not apply, and the order is not appealable. We decline to treat the appeal as a petition for writ of mandate because plaintiff has not demonstrated extraordinary circumstances that would warrant doing so. Accordingly, we grant defendant's motion and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed an action, on behalf of himself and "a class and subclasses" of premises technicians employed by defendant. The second amended complaint contained nine causes of action, seeking recovery for failure to pay various items of compensation, failure to give accurate and complete wage statements, unfair competition (Bus. & Prof. Code, § 17200 et seq.), and wrongful termination in violation of public policy; it also sought statutory penalties for Labor Code violations under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, §§ 2698-2699.6). The second amended complaint defined three classes and two subclasses, and alleged the claims of plaintiff and the classes presented common questions of law and fact, including whether defendant implemented a systematic practice by which it unlawfully failed to pay plaintiff and the class members for all hours worked in accordance with California law.
Plaintiff filed a motion for class certification, alleging defendant "failed to provide legally compliant meal [and rest] periods to its [p]remises [t]echnicians by adopting and implementing mandatory policies and practices that controlled their activities during their meal and rest periods to such a degree that such purported meal and rest periods were not 'duty free' but constituted 'hours worked.' " Plaintiff asserted defendant did not pay the class members for their noncompliant meal and rest periods, and did not pay the meal and rest period premium wages due when a compliant meal or rest period was not provided. As a result, the class members' wage statements did not accurately reflect all hours worked. Additionally, class members whose employment terminated during the class period were not paid all wages due upon termination and are owed statutory penalty wages.
Plaintiff's motion for class certification identified six classes and subclasses that he sought to have certified. The trial court granted certification of the sixth class only, finding plaintiff had not established that the claims of the other proposed classes presented common issues that could be addressed on a classwide basis. Plaintiff filed this appeal of the order denying class certification of the first five proposed classes.
After plaintiff's opening brief was filed, defendant moved to dismiss the appeal, arguing an order denying class certification is not appealable if it does not entirely dispose of the class claims. Because the trial court certified one class, and because the PAGA claim remained, defendant contended the order is not appealable. Plaintiff opposed the motion. We deferred ruling on that motion until briefing was complete and the matter was ready for consideration on the merits.
DISCUSSION
I. Nonappealable Order
As a threshold matter, we consider defendant's motion to dismiss the appeal, which is based on the contention plaintiff is appealing from a nonappealable order. "The right to appeal in California is generally governed by the 'one final judgment' rule, under which most interlocutory orders are not appealable." (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 754 (Baycol).) The rule is " 'a fundamental principle of appellate practice.' " (Id. at p. 756.) "Under the one final judgment rule, ' "an appeal may be taken only from the final judgment in an entire action." ' [Citations.] ' "The theory [behind the 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." ' " (Ibid.)
The death knell doctrine is one exception to the one final judgment rule. (Baycol, supra, 51 Cal.4th at p. 757.) When a trial court order in a putative class action entirely disposes of the claims of the class members, leaving only the claims of the named plaintiff, the order effectively rings the death knell for the class claims. In that situation, the order is treated as a final judgment on the class claims and is immediately appealable. (Ibid.) Two procedural circumstances are critical to application of the death knell doctrine. (Ibid.)
First, the order was the practical equivalent of a final judgment for the class; that is, the order was, in legal effect, tantamount to a dismissal of the action as to all members of the class other than the plaintiff. (Baycol, supra, 51 Cal.4th at p. 757.) An order that terminates only some of the class claims is not appealable. (Id. at p. 758.)
Second, if the order is not treated as a de facto final judgment, any appeal would likely be foreclosed. (Baycol, supra, 51 Cal.4th at p. 757.) "This risk of immunity from review [arises] precisely, and only, because the individual claims live[] while the class claims die[]. As the United States Supreme Court has explained, '[t]he "death knell" doctrine assumes 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.' " (Id. at p. 758.)
An order entirely denying class certification is, in legal effect, a final judgment as to the class claims. It is appealable under the death knell doctrine because it brings the class claims to an end, while the individual claims are allowed to go forward; the individual plaintiff's claims, however, may be economically infeasible to pursue and may never lead to a formal final judgment. (Baycol, supra, 51 Cal.4th at pp. 759-760.) "The rationale behind permitting an appeal of what would otherwise be an intermediate order is that absent immediate review, the plaintiff would have no financial incentive to pursue his or her case to final judgment just to preserve the ability to appeal the denial of the plaintiff's class certification motion." (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 308 (Munoz).)
The death knell doctrine does not apply to orders partially certifying a class. (Munoz, supra, 238 Cal.App.4th at p. 308.) "[O]rders that only limit the scope of a class or the number of claims available to it are not similarly tantamount to dismissal and do not qualify for immediate appeal under the death knell doctrine." (Baycol, supra, 51 Cal.4th at pp. 757-758; accord, Shelley v. City of Los Angeles (1995) 36 Cal.App.4th 692, 695-696.)
The trial court's order did not deny class certification entirely. It partially certified the class, limiting the scope of the claims plaintiff could pursue on behalf of the class. Plaintiff briefly asserts "the trial court denied certification of the entirety of [c]lasses 1 through 5, which consisted of [premises technician] employees. Thus, members of these [premises technician] classes have been effectively dismissed from the complaint as to those claims. The ruling operates as a final judgment of those claims and is therefore appealable." Plaintiff has not distinguished classes 1 through 5 and their claims from class 6, which was certified, and its claims. He has not demonstrated the classes are mutually exclusive, so that denial of certification of classes 1 through 5 completely disposed of the claims of the premises technicians who were members of those classes, even though class 6 was certified with plaintiff, a premises technician, as the class representative. Plaintiff's declaration in support of the motion for class certification stated that he was employed by defendant as a premises technician, and his claims were the same as those of the other members of the classes he sought to represent, which would include class 6.
Additionally, the trial court's order did not dispose of the PAGA cause of action. PAGA "was adopted to empower aggrieved employees, acting as private attorneys general, to seek civil penalties for Labor Code violations, penalties which previously could be assessed only by state agencies." (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 336.) It "empowers or deputizes an aggrieved employee to sue for civil penalties 'on behalf of himself or herself and other current or former employees.' " (Id. at p. 337.) Any civil penalties recovered by the aggrieved employees are distributed 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws and education of employers and employees about their rights and responsibilities, and 25 percent to the aggrieved employees. (Lab. Code, § 2699, subd. (i).)
"[B]oth class claims and representative PAGA claims 'are forms of representative actions, whereby one or more plaintiffs seek recovery on behalf of nonparties. [Citation.] In both types of action[s], the potential recovery is greater if the claim is brought as a class or representative action than it would be if the plaintiff sought only individual relief. [Citations.] In both, the represented nonparties are bound by any final judgment.' [Citation.] 'The rationale underlying the death knell doctrine—" '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,' " thereby rendering the order "effectively immunized by circumstance from appellate review" [citation]—applies equally to representative PAGA claims.' " (Young v. RemX, Inc. (2016) 2 Cal.App.5th 630, 634 (Young).)
When a representative PAGA claim remains after the claims of the putative class are dismissed or class certification is denied, and the plaintiff does not contend there are any putative class members who are not also aggrieved employees for purposes of the PAGA claim, the order disposing of the class claims is not a de facto final judgment. (Young, supra, 2 Cal.App.5th at p. 635; Munoz, supra, 238 Cal.App.4th at pp. 310-311.) Further, "[g]iven the potential for recovery of significant civil penalties if the PAGA claims are successful, as well as attorney fees and costs, plaintiffs have ample financial incentive to pursue the remaining representative claims under the PAGA and, thereafter, pursue their appeal from the trial court's order denying class certification." (Munoz, at p. 311.) Thus, where a PAGA claim on behalf of the class remains, the death knell doctrine does not make the order denying class certification immediately appealable.
In his opposition to the motion to dismiss the appeal, plaintiff admits he "has PAGA claims based on the same theories of liability asserted as to [c]lasses 1 through 5 of the [premises technician] classes." He has not attempted to distinguish cases such as Munoz and Young, which held that the death knell doctrine did not apply and an order disposing of class claims was not immediately appealable when a representative PAGA claim on behalf of the class remained pending.
Consequently, we conclude that, because the trial court granted certification in part, and because plaintiff's representative PAGA claim remains pending, the death knell doctrine does not apply to the challenged order and it is not immediately appealable. "The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed." (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.)
II. Treating the Appeal as a Writ Petition
Plaintiff argues that, if the order is not appealable, we should not dismiss the appeal, but treat it as a petition for a writ of mandate and review the merits of his challenge to the order denying class certification. "An appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but that power should be exercised only in unusual circumstances. [Citation.] 'A petition to treat a nonappealable order as a writ should only be granted under extraordinary circumstances, " 'compelling enough to indicate the propriety of a petition for writ ... in the first instance ....' " ' " (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367.) "Generally, a writ [of mandate] will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance." (Payne v. Superior Court (1976) 17 Cal.3d 908, 925.)
"Writ relief, if it were granted at the drop of a hat, would interfere with an orderly administration of justice at the trial and appellate levels. Reviewing courts have been cautioned to guard against the tendency to take ' "... too lax a view of the 'extraordinary' nature of prerogative writs ..." ' [citation] lest they run the risk of fostering the delay of trials, vexing litigants and trial courts with multiple proceedings, and adding to the delay of judgment appeals pending in the appellate court." (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1272.) "Particularly today, 'in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation.' " (Ibid.)
Courts have found extraordinary circumstances justifying treating an appeal from an unappealable order as a petition for writ of mandate in situations in which the challenged order might otherwise have evaded review. For example, in Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, the plaintiff filed an action on behalf of himself and other holders of the defendant's credit cards, alleging the defendant improperly charged fees on their accounts. (Id. at p. 1097.) The trial court granted the defendant's motion to compel arbitration of the plaintiff's individual claims based on a provision in the credit card agreement requiring arbitration of disputes and prohibiting claims being made on a class or representative basis. (Id. at pp. 1096-1097.) The plaintiff prevailed at arbitration, recovered $29, and filed an appeal. (Id. at p. 1097.)
The death knell doctrine did not apply to the order compelling arbitration because a new class representative had been added and the matter could have continued on behalf of those not facially bound by the contractual provision barring class actions. (Szetela v. Discover Bank, supra, 97 Cal.App.4th at p. 1098.) The arbitration award to the plaintiff was not appealable, and neither party had an interest in having a final judgment entered on the award. (Ibid.) The court treated the appeal as a petition for writ of mandate. "Unless we do so, this issue [the validity of the prohibition of class treatment of small individual claims] will effectively evade appellate review, establishing the lack of an adequate remedy of law necessary for a writ." (Ibid.)
Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758 also involved an appeal from an order compelling arbitration. In a putative consumer class action alleging misrepresentation of cellular telephone rates, the trial court granted the defendants' motion to compel arbitration of the plaintiff's individual claims, based on provisions in the customer agreement requiring arbitration of disputes and precluding resolution of disputes on a classwide basis. (Id. at pp. 763-764, 766.) The court determined unusual circumstances warranted immediate review by treating the appeal as a petition for writ of mandate. (Id. at pp. 767-768.) The presence of an arbitration clause in their contracts would have foreclosed a class action by most, if not all, of the putative class members, and they, like the plaintiff, would have had little financial incentive to proceed through arbitration to a final judgment entitled to appellate review. (Id. at p. 768.) Additionally, the matter presented a purely legal issue, was fully briefed by the parties, and was relevant to other pending consumer class actions; delaying review would result in a significant waste of time and judicial resources. (Ibid.)
In Hogya v. Superior Court (1977) 75 Cal.App.3d 122, the court found a writ proceeding was an appropriate means of reviewing an order denying class certification, under the unusual circumstances of that case. (Id. at pp. 127-132.) The plaintiff alleged the defendant misrepresented the meat it sold as being of " 'choice' " quality when it was only of " 'good' " quality. (Id. at p. 125.) He asserted that, without writ review of the order, he would " 'be forced to individually bear the burdens of litigation, take the case to trial, successfully prove his case, and then finally appeal the class action issue.' " (Id. at p. 130.)
The trial court found it was not reasonably likely any member of the class could prove a claim to as much as $10 or would pursue an individual claim because of the small amount provable. (Hogya v. Superior Court, supra, 75 Cal.App.3d at pp. 130-131.) It also found the cost of litigation would likely amount to $100,000 to $200,000. (Id. at p. 131.) Thus, the expense of proceeding through trial was grossly disproportionate to the damages the plaintiff might recover in his individual capacity. Additionally, the plaintiff asserted it would be impossible for him to take the case to trial in order to test the ruling on class certification. (Ibid.) The facts regarding class certification were without essential dispute, and the only question presented for review was a legal question: whether, given the facts as found by the trial court, the governing statute required the trial court, as a matter of law, to certify the class. (Ibid.) Additionally, the issue raised was substantial and a matter of first impression and general interest. (Id. at pp. 131-132.)
In Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, a dispute over a county zoning ordinance governing the minimum lot size for development, which allegedly conflicted with state law, the trial court granted the plaintiffs' petition for a writ of mandate directing the county to set aside the denial of the plaintiffs' application for a building permit. (Id. at pp. 731-732.) The court concluded the judgment was not appealable because it did not dispose of all causes of action; because of the unusual circumstances, however, including the statewide importance of the issues, it treated the matter as a writ proceeding. (Id. at p. 732.) Both parties strongly urged that the court decide the matter on the merits. (Id. at p. 744.) Prior case law had indicated the appeal was proper. (Id. at p. 746.) Further, the merits of the issues had been briefed by the parties and addressed by a diverse group of amici curiae, seeking "clarification of the potential effect of local parcel merger requirements upon vast areas of California land." (Ibid.) Finally, the issue presented was moot as to the plaintiffs because the county had issued them a building permit after the trial court entered its judgment; the issue, however, remained "of immediate importance to the orderly planning for possible development of thousands of other ... subdivision parcels" throughout the state. (Id. at p. 746.)
In a class action brought on behalf of judges and judicial pensioners in California, the trial court concluded a statutory amendment limiting increases in judicial salaries and pension payments did not apply to those who took office before the amendment was enacted. (Olson v. Cory (1983) 35 Cal.3d 390, 395-396.) Subsequently, the trial court denied the plaintiffs' motion for summary adjudication that they were entitled to interest on their recovery. (Id. at pp. 397-398.) The plaintiffs appealed from that order. (Id. at p. 398.) The court concluded the order was not appealable but treated it as a petition for writ of mandate. (Id. at pp. 399-401.) It found the unusual circumstances necessary for treating an appeal as a writ of mandate were present. (Id. at p. 401.) "[T]he issue of appealability [of the order] was far from clear in advance." (Ibid.) By the time the appeal was considered, all issues in the case had been resolved except for the interest issue raised in the appeal. (Ibid.) That issue had been thoroughly briefed and argued; all parties strongly urged the court to decide it. (Ibid.) Under these circumstances, dismissing the appeal rather than reaching the merits by treating the appeal as a petition for a writ of mandate, would have been unnecessarily dilatory and circuitous. (Ibid.)
In the absence of extraordinary circumstances, courts have declined to treat an appeal from a nonappealable order as a petition for a writ of mandate. In Munoz, the court found the death knell doctrine did not make the order denying class certification of the plaintiff's wage and hour claims appealable, because her PAGA claims on behalf of the same employees remained. (Munoz, supra, 238 Cal.App.4th at p. 311.) The court declined to treat the premature appeal as a writ petition. (Id. at p. 312.) It recognized a court should only exercise its discretion to treat a purported appeal as a writ petition under unusual circumstances. Although, as in the case before us, the plaintiff would have been required to litigate her PAGA claims to judgment before being able to appeal and obtain review of the denial of class certification, the Munoz court did not perceive any unusual circumstances in the case that warranted writ review. (Ibid.) It dismissed the appeal. (Ibid.)
In Young, the plaintiff brought a putative class action alleging claims of wage and hour violations against her former employer. (Young, supra, 2 Cal.App.5th at p. 633.) The order compelling arbitration of the plaintiff's individual claims, dismissing the class claims, and bifurcating and staying the PAGA claims pending completion of the arbitration, was not appealable under the death knell doctrine. (Id. at pp. 634, 635.) The court declined to treat the appeal as a petition for writ of mandate. (Id. at p. 636.)
Orders compelling arbitration are nonappealable because they do not resolve all of the issues in the case, and to permit an appeal would delay and defeat the purposes of the arbitration statute. (Young, supra, 2 Cal.App.5th at p. 636.) Writ review " 'is available only in "unusual circumstances" or in "exceptional situations." ' " (Ibid.) It has been used to review orders compelling arbitration " 'in at least two circumstances: (1) if the matters ordered arbitrated fall clearly outside the scope of the arbitration agreement or (2) if the arbitration would appear to be unduly time consuming or expensive.' " (Ibid.) The court found neither situation applied. As to the second circumstance: "Plaintiff has provided no support for her claim that she will be subject to undue expense in the arbitration. Plaintiff has also failed to explain why the arbitration would be unduly time consuming. As writ relief is available only in extraordinary circumstances, the fact that the arbitration will take time is not sufficient." (Ibid., fn. omitted.) Consequently, the court found no extraordinary circumstances warranting writ review and dismissed the appeal. (Id. at pp. 636-637.)
In Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, a party to a probate proceeding appealed from an order in which the probate court sua sponte struck the party's counterclaim on the ground an answer cannot seek affirmative relief. (Id. at pp. 761-762.) The court concluded the order was not appealable. (Id. at pp. 766, 769.) It declined to treat the appeal as a writ petition. The appellant had made no showing it lacked an adequate remedy at law, as required for issuance of a writ. (Id. at p. 770.) It claimed only money damages, did not argue it would be unable to appeal from a final judgment, and had not attempted to present a procedurally proper pleading in the trial court. (Ibid.) The court distinguished Olson, where "all other substantive issues had been resolved, so that dismissal of the appeal on the sole remaining issue would have resulted in unnecessary delay in the final disposition of the litigation." (Katzenstein, at p. 770, fn. 16.) "Moreover, because '[t]he interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders,' we respect the '[s]trong policy reasons' that underlie the one final judgment rule." (Id. at p. 770.) The court listed the underlying policies, including "the premise that 'piecemeal disposition and multiple appeals tend to be oppressive and costly': e.g., rather than ending litigation, interlocutory appeals tend to result in a multiplicity of appeals." (Id. at p. 770, fn. 17.) The court dismissed the appeal. (Id. at p. 771.)
In his opposition to defendant's motion to dismiss the appeal, plaintiff has not asserted any extraordinary circumstances that would justify treating his appeal as a petition for writ of mandate. He has not shown his remedy by appeal is inadequate. He has not distinguished his case from Munoz, which denied the request to treat the appeal as a writ petition under similar circumstances.
Unlike the arbitration cases, plaintiff has not shown the challenged order is likely to escape review if we do not review it now as a petition for writ of mandate. He has not demonstrated he lacks an incentive to pursue his case through trial and to appeal, in the absence of the class 1 through 5 claims. His PAGA claims remain, asserted in a representative capacity on behalf of the same employees included in the classes he sought to represent. Unless a different civil penalty is specifically provided, the civil penalty for a PAGA violation "is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation." (Lab. Code, § 2699, subd. (f)(2).) Plaintiff's counsel represented, in his declaration in support of the motion for class certification, that there were approximately 6,533 premises technicians in the class, apparently in classes 1 through 5, and approximately 7,700 employees in class 6. A successful plaintiff is also entitled to an award of attorney fees. (Lab. Code, § 2699, subd. (g)(1).) Plaintiff has not shown the PAGA claims are so insubstantial that it is not financially feasible for him to pursue them to judgment or that he does not intend to pursue them.
In opposition to the motion to dismiss, plaintiff argues that, if we do not immediately review the class certification issue, plaintiff "will be forced to pursue the PAGA claims predicated on the identical theory of liability through trial," and defendant will be forced to defend against them. He speculates that defendant "will most certainly contend at trial" that the PAGA claims are unmanageable for the same reason the class claims were not certified—because individual issues predominate—and the trial court may rule that plaintiff cannot pursue them. "This means that an entire PAGA trial will have been conducted, at great expense, with an identical outcome to the [premises technician]s' substantial meal and rest period claims, a decision denying the [premises technicians] their 'day in court.' "
We will not speculate on what motions may be brought or how the trial court may rule on them at trial. Plaintiff has not cited any legal authority authorizing the trial court to complete the trial in a PAGA action, then deem it unmanageable and negate the entire trial. We note that, if the trial court dismisses or effectively dismisses the remaining class and representative PAGA claims prior to trial, then presumably the death knell doctrine will apply, making all the class and representative claims immediately appealable.
Plaintiff recognizes that he is entitled to appeal after judgment and to challenge the order partially denying class certification, which may result in a reversal that permits trial of the class 1 through 5 claims. He argues that, if the court reviews the denial of class certification now and determines it was in error, "the issue of the legality of [defendant]'s undisputed policies will only have to be tried once, in the class action context, and such decision on the merits would apply on a collateral estoppel basis to the PAGA claims based on the identical theories. Thus, only one trial would be necessary." Substantially the same could be said for trial in the reverse order: if the PAGA claims are tried first, the outcome on the issue of the alleged illegality of defendant's policies or practices would apply also to the class claims.
The remedy of appeal "will not be deemed inadequate merely because additional time and effort would be consumed by its being pursued through the ordinary course of law." (Omaha Indemnity Co. v. Superior Court, supra, 209 Cal.App.3d at p. 1269.) Plaintiff has not demonstrated any extraordinary or unusual circumstances that would make an appeal after final judgment an inadequate remedy for any error in the denial of his motion for class certification. He has not shown the order will evade review if it is not reviewed immediately by writ. Plaintiff has not shown his purported appeal presents important issues of continuing public interest or significant legal impact, that should be reviewed immediately for the benefit of interested persons statewide. He does not suggest the matter presents an issue of first impression. Plaintiff also has not shown that the only issue in dispute is a legal issue, presented by undisputed facts, or that both parties are seeking immediate resolution of that issue. Thus, plaintiff has not established any of the circumstances which, in some combination, were found to constitute extraordinary circumstances warranting writ review in the cases discussed above.
We conclude plaintiff has not demonstrated extraordinary circumstances exist in this case that warrant treating his purported appeal as a petition for writ of mandate. Accordingly, his appeal from a nonappealable order must be dismissed.
DISPOSITION
The appeal is dismissed. Defendant is entitled to its costs on appeal.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
FRANSON, J. /s/_________
PEÑA, J.