California
Appeals

Appealable-order denying a class certification
Walsh v. Ikon Office Solutions, Inc A113172

A. APPEALABILITY AND JURISDICTION

An order denying a class certification motion in its entirety, and preserving only a claim for damages for the individual plaintiff, "is tantamount to a dismissal of the action as to all members of the class other than plaintiff." (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 (Daar).) Thus, an order denying class certification has the legal effect ofa final judgment--from which an appeal lies--if it "virtually demolishes the action as a class action." (Ibid.; see Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 [order denying certification to an entire class is an appealable order] (Linder).) {Slip Opn. Page 7} By the same logic, an order decertifying a class would be directly appealable if it "virtually demolishes the action as a class action." (Daar, supra, at p. 699.)

An order denying certification is not directly appealable, however, if it does not dispose of the class claims in their entirety. Thus, an order of partial decertification may not be appealable. (Green v. Obledo (1981) 29 Cal.3d 126, 149, fn. 18 (Green); see Vasquez v. Superior Court (1971) 4 Cal.3d 800, 806-807 [order dismissing one class cause of action and leaving another intact must be reviewed by writ of mandate] (Vasquez).) In Green, for example, there was "significant overlap" between the portion of the class that was decertified and the rest of the class that remained in the case, such that they were not "separate and distinct." (Green, supra, at p. 149, fn. 18.) Accordingly, the order of partial decertification was not "'tantamount to a dismissal of the action as to all members of the class'" and was not immediately appealable. (Ibid.)

In the matter before us, the order of partial decertification, from which Walsh and Miller filed their notice of appeal, stated: "Plaintiffs' LDS account manager class allegations are hereby dismissed without prejudice to the claims of the individual members of the class, including the two class representatives." In IKON's view, this order decertified the class action as it pertained to the cause of action for unpaid overtime, but members of the Account Manager Subclass remained in the case as members of the business expense reimbursement subclass, which went to trial in March 2006, and as members of the DSO and deductions classes, whose claims were settled. IKON urges there was significant overlap between the Account Manager Subclass that was decertified and the subclasses that remained certified and, as in Green and Vazquez, the order did not entirely dispose of the class claims. Furthermore, IKON contends, permitting piecemeal appeals of certification orders would cause undue delay and expense.

Appellants counter that the claims presented by the Account Manager Subclass were separate and distinct (whether or not the members of the subclass had other claims as members of other subclasses), because no other subclass sought recovery for overtime compensation. The decertification order {Slip Opn. Page 8} ended the action as to all the claims of the Account Manager Subclass, even though it did not necessarily end the case in its entirety for Account Manager Subclass members who were members of another subclass.

In the end, we need not decide whether the decertification order itself was an appealable order, since Walsh and Miller not only filed a notice of appeal from that order, but also filed a notice of appeal from the final judgment. If in fact the decertification order was immediately appealable, appellants' notice of appeal from that order was timely. If the decertification order was not immediately appealable, and an appeal could be taken only from the subsequent judgment, appellants filed a protective notice of appeal from the judgment on September 5, 2006. (A modified judgment was entered in August 2006; appellants filed a timely notice of appeal from the modified judgment on October 16, 2006.) fn. 4 Therefore, whether the decertification order was immediately appealable or not, appellants have preserved their right of review and this court has jurisdiction. Because the issues raised by appellants have been fully briefed by the parties in this appeal, and the appeal from the judgment (appeal No. A115362) is only in its early stages, we proceed to address appellants' contentions at this time in the interest of judicial efficiency.