Hamil v. Ethan Allen, Inc.

Filed 1/12/07  Hamil v. Ethan Allen, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge.  Appeal dismissed.

            Cynthia Hamil appeals from the trial court's order, entered at her request, striking the class allegations from her proposed class action complaint following the trial court's denial of her application of a continuance of the trial date sufficient to allow her to pursue class certification proceedings.

            As we will explain, we determine that the order striking the class allegations is not appealable, and accordingly, we dismiss the appeal.

I

FACTUAL AND PROCEDURAL BACKGROUND

            Hamil filed a proposed class action complaint against Ethan Allen, Inc. (Ethan Allen) on November  23, 2004.  Hamil alleged that the furniture retailer violated California's wage and hour laws by, among other things, requiring its design consultants to work "   'off the clock'  " when making house calls to customers, requiring employees to work overtime without proper compensation, failing to reimburse expenses, and failing to provide paid meal and rest periods.

            After twice receiving Hamil's agreement to extensions of time to answer, 

Ethan Allen answered the complaint on March  3, 2005.

            On May  9, 2005, the trial court set a trial readiness conference for October  21, 2005, and set trial to begin on November  4, 2005.  All motions were required to be filed by October  14, 2005.

            Between March and August 2005, the parties discussed possible mediation.  Hamil propounded discovery requests and gave Ethan Allen extensions of time to respond.  Ethan Allen responded to Hamil's discovery requests on July  28, 2005, but, according to Hamil, the responses were deficient.

            One day before the August  9, 2005 discovery cutoff date, Hamil filed an ex parte application requesting that the trial court continue the trial date 180 days, from November  4, 2005, to May  4, 2006, and that other dates be continued accordingly, including moving the discovery cutoff date to February  9, 2006, and moving the motion cutoff date to April  14, 2006.  Hamil explained that she had not completed discovery because she had believed that the case would be resolved through mediation, and thus instead of aggressively pursuing the matter, she had continually granted extensions for Ethan Allen to respond to discovery.  

            The trial court denied, without prejudice, the ex parte application to continue the trial date.  Three days later, the parties agreed to participate in a mediation, set for September  22, 2005.  The mediation did not resolve the case. ^[1] 

            On October  5, 2005, Hamil filed an ex parte application for the following relief:  (1)  an order shortening time for a hearing on a motion to compel, which sought, among other things, an order requiring Ethan Allen to provide names, addresses and telephone numbers of the proposed class members; (2)  an order shortening time on a motion to designate the case as complex pursuant to California Rules of Court,^[2] former rule  1800 (now rule  3.400); and (3)  an order shortening time on a motion for a case conference pursuant to former rule  1852 (now rule  3.762) to discuss class action scheduling and discovery issues.  The trial court ruled that it would not deem the case complex and set an October  21, 2005 hearing for Hamil's motion to compel.

            Before Hamil's motion to compel could be heard, she filed an ex parte application on October  18, 2005, to continue the trial date to permit time for class certification proceedings, or in the alternative, to strike the class allegations from the complaint if the trial court decided against the continuance.

            Hamil argued that " the continuance of the trial is necessary to serve the interests of the proposed class and allow plaintiff to complete the discovery motion to compel .  .  .  , gather additional evidence, bring a class certification motion, conduct a hearing, permit time for notice to the class, and conduct trial."   Hamil did not specify the length of continuance that would be necessary for her to complete class certification proceedings.

            Hamil also stated that because " the proposed class should not suffer" in the event the continuance was not granted, she was requesting " that the Court consider an alternate remedy."   Accordingly, Hamil stated that " [s]hould the court decide not to reset the trial date to allow the completion of class certification proceedings, [she] respectfully requests the court confirm its intention that the case not proceed to trial as a class action and strike the class allegations."   In her appellate briefing, she states that she asked the court to strike the class allegations because, in her view, " [t]his would render the decision an appealable order," and " establish the right to appeal."

            In response to the ex parte application, the trial court made the following rulings:  (1)  it continued the trial date from November  4, 2005, to December  16, 2005; and (2)  struck the class allegations from the complaint.^[3]  As counsel for Hamil stated at oral argument, the approximate one-month extension granted by the trial court was not, in Hamil's view, sufficient to allow for " the completion of class certification proceedings," as she had requested, and that in light of this inadequate extension, she still wanted the trial court to strike the class allegations from the complaint.^[4]  Within one month of the trial court's ruling, and while the non-class portion of her case was still pending, Hamil filed an appeal from the trial court's order striking the class allegations from the complaint.

II

DISCUSSION

            Ethan Allen argues that we should dismiss the appeal because the order striking class allegations from the complaint at Hamil's request is not an appealable order.  As we explain, we agree.

            Generally, the one final judgment rule " prohibits review of intermediate rulings by appeal until final resolution of the case."  (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.)  Case law in California has created an exception to the one final judgment rule, known as the " death knell" doctrine, for orders that effectively dispose of class allegations in a complaint but leave for future resolution the individual claims.  (See Shelley v. City of Los Angeles (1995) 36 Cal.App.4th 692, 695.)  Under the death knell doctrine, " [t]he denial of certification to an entire class is an appealable order" (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder)), and " an order sustaining without leave to amend a demurrer to the class action allegations of [plaintiff's] complaint" " is appealable to the extent that it prevents further proceedings as a class action."  (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957 & fn.  1 (Wilner).) 

            Hamil claims that the trial court's order striking the class allegations is appealable under the death knell doctrine.  We have examined the case law applying the death knell doctrine and have determined that the doctrine does not apply here. 

            The death knell doctrine was established in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 (Daar).  There, our Supreme Court held that an order that " determines the legal insufficiency of the complaint as a class suit and preserves for the plaintiff alone his cause of action for damages" has a " 'legal effect' .  .  . tantamount to a dismissal of the action as to all members of the class other than plaintiff."   (Id. at p.  698, italics added, citation omitted.)  Consistent with this description of the doctrine, case law following Daar has applied the death knell doctrine to rulings on the merits of the class action aspects of a complaint, such as rulings denying motions for class certification or rulings sustaining demurrers to class allegations.  (See, e.g., Linder, supra, 23 Cal.4th at p.  435 [denial of class certification]; Wilner, supra, 78 Cal.App.4th at p.  957 & fn.  1 [demurrer].)  We are aware of no authority, and Hamil has cited none, applying the death knell doctrine to an order striking class allegations from a complaint at the request of a plaintiff.  

            Here, there has been no " determin[ation of] the legal insufficiency of the complaint as a class suit," as expressed in Daar, supra, 67 Cal.2d at page  698.  Further, the order striking the class claims from the complaint is not an adjudication of the merits of the class allegations.  Accordingly, the death knell doctrine does not apply, and the order striking the class action allegations is not appealable.  (See Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th 10, 13 [order denying motion to amend a complaint to add class allegations did not invoke the death knell doctrine because it did not make any decision on the merits of the class claims].)^[5] 

            The order striking the class allegations from the complaint is also not appealable for an independent reason:  the order was entered at Hamil's request.  Only a party who is aggrieved by an order has standing to appeal from it (see Code Civ. Proc., §  902 [" Any party aggrieved may appeal," italics added]), and we will dismiss the appeal of a party who is not aggrieved.  (See Crook v. Contreras (2002) 95 Cal.App.4th 1194, 1201 [dismissing appeal of party not aggrieved by the challenged order].)

            " A party is not aggrieved by a consent judgment, or one which he has requested the court to decree."   (In re Estate of Gurnsey (1923) 61 Cal.App. 178, 182.)  Thus, " [i]t is an elementary and fundamental rule of appellate procedure that a judgment or order will not be disturbed on an appeal prosecuted by a party who consented to it."  (Sorensen v. Lascy (1941) 42 Cal.App.2d 606, 608; see also Delagrange v. Sacramento Sav. & Loan Assn. (1976) 65 Cal.App.3d 828, 831 [" Having consented to the judgment of dismissal, [plaintiff] may not appeal therefrom" ]; Hensley v. Hensley (1987) 190 Cal.App.3d 895 [holding that a defendant could not appeal the trial court's ruling setting aside a default judgment rather than merely modifying it because the defendant argued to the trial court that it could set aside the judgment].)  Because Hamil requested the order striking the class allegations, she is not aggrieved by it and may not appeal from it.^[6]

            Because the trial court's order striking the class allegations in the complaint at Hamil's request is not an appealable order, we are without jurisdiction to consider it, and we therefore dismiss the appeal.  (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [" The existence of an appealable judgment is a jurisdictional prerequisite to an appeal" ].)^[7]

DISPOSITION

            The appeal is dismissed.^[8]

IRION, J.

WE CONCUR:

                           HALLER, Acting P.J.

                                   McINTYRE, J.

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^[1]           We note that at oral argument counsel for Hamil confirmed that (1)  even though there was no guarantee that mediation would be successful, Hamil's trial counsel did not agree with Ethan Allen's trial counsel to propose an extension of the trial and pretrial dates in the event that the upcoming mediation failed to settle the case; and (2)  Hamil's trial counsel did not, at the trial readiness conference, object to the trial and pretrial dates on the ground that insufficient time was provided to explore possible settlement and prepare for class certification proceedings. 

^[2]           All further rule references are to the California Rules of Court.

^[3]           The appellate record does not contain a transcript of the ex parte hearing.

^[4]           Indeed, Hamil continues to argue on appeal that the trial court abused its discretion by not providing sufficient time for the completion of class certification proceedings, despite the fact that the trial court continued the trial date from November  4, 2005, to December  16, 2005.

^[5]           We note that Hamil could have filed a writ of mandamus seeking relief from the trial court's refusal to continue the trial and pretrial dates, but she did not do so.

^[6]           Hamil argues that the order striking the class allegations was not akin to a voluntary dismissal because the Rules of Court require a party seeking to dismiss class action claims to follow certain procedures that were not followed here.  (See rule  3.770 [requiring that a declaration accompany a request for dismissal of a class action which states the facts on which the party relies and whether consideration is being given for the dismissal].)  We are not convinced.  The record shows (1)  Hamil clearly asked the trial court to strike the class allegations from the complaint and (2)  the trial court granted Hamil's request.  It is irrelevant to our analysis whether the trial court was within its authority to accede to that request, when the important point is that the request was made by Hamil.  (See In re Marriage of Hinman (1992) 6 Cal.App.4th 711, 716 [" A party who participates in or consents to a judgment which otherwise would be beyond the court's authority is precluded from attacking it collaterally, absent exceptional circumstances," italics added].)

^[7]           We point out that even if the order striking the class claims was an appealable order, Hamil's appeal would fail on the ground of invited error.  " Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error."  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.)  " The 'doctrine of invited error' is an 'application of the estoppel principle  .  .  .  .'  "  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)  Here, because Hamil requested that the trial court enter an order striking the class allegations from the complaint, she invited the error and is estopped from arguing to the contrary on appeal.  (See Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1312 [plaintiffs who invited the trial court to enter judgment on remaining causes of action after adverse evidentiary ruling were estopped, under the doctrine of invited error, from contending that the trial court erred in doing so].)

^[8]           Because we dismiss the appeal for lack of jurisdiction, we do not rule on Hamil's request for judicial notice filed May  1, 2006, which relates to the merits of her appeal.