Harris v. Golden State Water Co. CA2/8 ( 2020 )

Filed 12/18/20 Harris v. Golden State Water Co. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
FLORENCE V. HARRIS et al., B299125
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC523131)
v.
GOLDEN STATE WATER
COMPANY et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County. Daniel J. Buckley, Judge. Appeal dismissed.
Skapik Law Group, Mark J. Skapik, Geralyn L. Skapik and
Blair J. Berkley for Plaintiffs and Appellants.
Epstein Becker & Green, Michael S. Kun and Kevin D.
Sullivan for Defendants and Respondents.
___________________________
An order denying a motion for class certification that
entirely terminates class claims is appealable. (Daar v. Yellow
Cab Co. (1967) 67 Cal.2d 695, 698–699.) An order that
terminates only some but not all class claims is not appealable.
(Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806–807.) Here,
the trial court denied the motion for class certification as to the
first six causes of action but did not rule on the motion as to the
seventh cause of action seeking relief under Business and
Professions Code section 17200. The request for class
certification as to the seventh cause of action remains unresolved.
Thus, because there is no final order and this court lacks
jurisdiction to hear the appeal, the appeal must be dismissed.
FACTS AND PROCEDURAL HISTORY
Plaintiffs Florence Harris, Maria Delgado, and Sylvia
Beltran filed a complaint against four utility companies for wage
and hour violations: Golden State Water Company provides
water services to municipalities statewide; Bear Valley Electric
Service, which is owned by Golden State, provides water services
and distributes electricity to customers in the Big Bear Lake
community; American States Water Company is the parent
company for Golden State and Bear Valley Electric and provides
water services within communities throughout the state; and
American States Utility Services, Inc., manages water,
wastewater, and utility services across the state and to military
installations.
The first amended complaint contained seven causes of
action. The plaintiffs alleged that they, and the proposed class
members within 55 different job titles, were intentionally
misclassified as exempt employees even though the conditions of
their employment, and the work they actually performed, was
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that of non-exempt employees. The first six causes of action
alleged the defendants failed to provide rest and meal breaks,
pay wages, pay overtime, and furnish timely and accurate wage
statements. The seventh cause of action alleged a violation of
California’s Unfair Competition Act under Business and
Professions Code1 section 17200.
The plaintiffs filed a motion to certify a “subclass” of
employees within 20 job titles.2 They asserted the defendants
“classify their employees as exempt or non-exempt from the
requirements of the Industrial Welfare Commission (‘IWC’) Wage
orders solely on the basis of the employees’ position grade level
(salary range) without regard to how employees actually spend
their time on the job.” In support of the motion, they argued the
defendants have admitted: the written job-position descriptions
accurately reflect actual employee duties, responsibilities, and
activities; the employees’ actual job performance conforms to
their job-position descriptions and the described duties and
responsibilities are overwhelmingly non-exempt; and, if an
employee’s performance was inconsistent with the employers’
expectations and written job requirements, the employee would
be disciplined. They argued this evidence is “conclusive” and
therefore no individualized inquiry is required. The plaintiffs
also sought class certification for their section 17200 claim in the
seventh cause of action.
1 All further undesignated statutory references are to the
Business and Professions Code.
2 The defendants complained the proposed subclass included
two job classifications that were not included in the amended
complaint.
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The defendants complained that the motion was filled with
misstatements, inaccuracies, and misrepresentations. They
argued that an employee’s “tasks cannot be determined from each
position’s job description alone; rather, in order to determine how
employees in these positions” spend their time requires an
individualized inquiry. They were specifically scornful of
plaintiffs’ expert, a former attorney with the Department of
Labor Standards and Enforcement: She could not simply review
the job titles and render an opinion because such an opinion
would be inadmissible at trial.
In reply, the plaintiffs argued the case was amendable to
class certification because there is evidence “deliberate
misclassification is defendant’s policy and practice,” and these
classifications have resulted in de facto misclassification that can
be established by job titles and job descriptions alone. Their
“theories of liability require no individualized analysis and are
conducive to class treatment.”
The court took the matter under submission and issued a
detailed ruling. Citing United Parcel Service Wage & Hour Cases
(2010) 190 Cal.App.4th 1001, 1015, the court found the plaintiffs
had not presented substantial evidence demonstrating that their
claims were amendable to common proof. It concluded that the
listing of generic job titles and descriptions, even if they reflect
actual job duties, was an “insufficient” showing. Evidence the
misclassifications were deliberate, and the inclusion of the
opinion “of a former DLSE attorney” that the job titles and job
descriptions in this case were adequate to certify a class, did not
change the calculus.
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DISCUSSION
The plaintiffs appeal from the order denying class
certification. Somewhat surprisingly, they appeal even though,
as they acknowledge in their brief, the trial court did not rule on
their concurrent request to certify a subclass under the seventh
cause of action. They suggest this court should “reverse” and
remand the matter to the trial court for resolution of that issue.
But that suggestion actually asks us to dismiss the appeal for
want of jurisdiction under the one final judgment rule.
The one final judgment rule provides, with limited
exceptions, that appellate courts have no jurisdiction to review an
interlocutory judgment or order that does not dispose of all
causes of action between the parties. (In re Baycol Cases I & II
(2011) 51 Cal.4th 751, 756; Aixtron, Inc. v. Veeco Instruments,
Inc. (2020) 52 Cal.App.5th 360, 384.) Here, the trial court’s order
does not address the motion to certify a subclass under the
seventh cause of action. Thus, the order does not dispose of all
causes of action between the parties and the appeal must be
dismissed.3
The plaintiffs attempt to avoid dismissal by arguing the
order is appealable under the “death knell” doctrine, a judicially
created exception to the one final judgment rule. That doctrine
provides that in class action cases, an order that is tantamount to
the dismissal of class claims is appealable even if the individual
claims are still viable. (In re Baycol Cases I & II, supra,
51 Cal.4th at p. 758.) The problem with that argument here is
3 The defendants do not dispute that the order fails to
address the seventh cause of action.
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that the order appealed did not terminate class claims; the
seventh cause of action remains pending.
Even if the section 17200 claim had been ruled on, it is
questionable if the order would be appealable under the death
knell doctrine in any event. The plaintiffs’ motion sought to
certify a “subclass” of 20 job titles and descriptions; and their
opening brief emphasized that the underlying motion had been to
certify a “subclass” of “20 different job positions.” We invited
letter briefs addressing whether an order denying certification of
a subclass is appealable. In response, the plaintiffs’ argued the
order effectively terminated class claims because the deadline to
file a class certification motion had passed. (Cal. Rules of Court,
rule 3.764(b).)
We first note it is difficult to address the issue without a
copy of the purported order. The plaintiffs represented it was
attached to their letter brief, but none was. Assuming a deadline
was set, there is nothing jurisdictional about it. Whether to
enforce that filing deadline rests within the sound discretion of
the trial court. (Davidson v. O’Reilly Auto Enterprises, LLC (9th
Cir. 2020) 968 F.3d 955, 963.)
It would be one thing if the plaintiffs had affirmatively
alerted the court they were effectively dismissing all other class
claims. That could have been done in numerous ways in the
motion or during argument in the trial court. But the motion to
certify emphasized numerous times that the plaintiffs were
seeking certification of a “subclass.” Even their opening brief
made that point. Advising us now that “many” of the class claims
not included in the subclass were not viable when the motion was
filed impliedly recognizes that some of those class claims remain
viable and could be pursued, if allowed in the trial court’s
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discretion. And advising us now that the “subclass” term really
was meant to tell the court below that they were seeking to
certify something less than the class as pled, seems more of an
after-thought. The death knell doctrine is strictly construed. It
serves its purpose—to prevent multiple appeals, piecemeal
disposition of claims, and the issuance of advisory opinions—only
if the order is tantamount to a final dismissal of class claims. (In
re Baycol Cases I & II, supra, 51 Cal.4th at pp. 756–757.) The
mere fact a court-imposed filing deadline has passed is not
enough, under these facts.
DISPOSITION
The appeal is dismissed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SALTER, J.
We concur:
BIGELOW, P. J. GRIMES., J.

Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
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