Reddish v. Westamerica Bank ( 2021 )

Filed 8/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
ANNIE REDDISH, et al., A161079
Plaintiffs and Respondents,
v. (Alameda County Super. Ct.
WESTAMERICA BANK, Nos. JCCP4921, RG15757606)
Defendant and Appellant.
In this class action, the trial court ordered the parties to share
equally the costs of certain depositions. We must answer a threshold
question—whether the order is appealable under the collateral order
doctrine. We conclude that it is not, and we dismiss the appeal.
BACKGROUND
The plaintiffs represent a certified class of current and former
employees of Westamerica Bank who allege that Westamerica violated
the Labor Code, including rules governing compensation for overtime,
meals, and rest breaks. In their trial plan, the plaintiffs proposed, and
Westamerica agreed, that the parties would depose 30 class members
as part of a pilot study to determine how many additional depositions
are needed for a valid random sample of the class generally. Over
Westamerica’s objection, the trial court ordered that the parties share
the deposition costs equally.
DISCUSSION
A.
Whether an order is appealable is a jurisdictional question.
(Baker v. Castaldi (2015) 235 Cal.App.4th 218, 222.) When, as here,
the order is not appealable, we must dismiss the appeal. (Ibid.)
Civil cases in California are governed by the “one final judgment”
rule, which “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.) The rule is a bedrock principle of appellate
practice, codified in Code of Civil Procedure, section 904.1.1 (In re
Baycol Cases I & II (2011) 51 Cal.4th 751, 756.) The rationale for 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. ” ’ ”
(Id. at p. 756.) Courts should not recognize exceptions to the one final
judgment rule unless “ ‘clearly mandated.’ ” (Id. at p. 757.)
Westamerica relies on a common law exception to the one final
judgment rule, the collateral order doctrine, under which some interim
orders are deemed appealable “judgments” because they are essentially
the same as a final judgment. (See Curtis v. Superior Court (2021) 62
Cal.App.5th 453, 464.) To be appealable, a collateral order must satisfy
three elements: the order must (1) finally determine (2) a matter
collateral to the litigation and (3) require the payment of money or
performance of an act. (Marsh v. Mountain Zephyr, Inc. (1996) 43
Undesignated statutory references are to the Code of Civil
1
Procedure.
Cal.App.4th 289, 297-298; Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2020), § 2:77.)
Here, the matter is not final. Whether Westamerica ultimately
pays for these depositions remains an open question. At the end of the
case, the prevailing party may recover its costs, including deposition
costs, under section 1032. (See §§ 1032, subd. (b), 1033.5, subds.
(a)(3)(A)-(C), (a)(7), (c)(4); Ling v. P.F. Chang’s China Bistro, Inc. (2016)
245 Cal.App.4th 1242, 1253-1254 [in the absence of a statute providing
otherwise, the prevailing party in a Labor Code action may recover
costs under Code of Civil Procedure section 1032]; see also id. at p. 1263
[affirming award of costs under Code of Civil Procedure section 1032 to
plaintiff who prevailed on missed meal periods claim].) Because
Westamerica’s liability for deposition costs has not been finally
determined, and any error in the interim order may prove harmless,
the issue is not ripe for appellate review. (See City of Los Angeles v.
City of San Fernando (1975) 14 Cal.3d 199, 297 [declining to review
interim allocation of referee costs that may later be recovered under §
1032], disapproved on another ground by City of Barstow v. Mojave
Water Agency (2000) 23 Cal.4th 1224, 1248.)
As Westamerica notes, other courts have permitted appeals of
interim cost orders under the collateral order doctrine. But those cases
do not consider whether a final cost allocation could make the interim
order moot. (See, e.g., San Diego Unified Port Dist. v. Douglas E.
Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1402 & fn. 1; Asbestos
Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 18,
disapproved on another ground by Kowis v. Howard (1992) 3 Cal.4th
888, 896-898; see also Serrano v. Stefan Merli Plastering Co., Inc.
(2008) 162 Cal.App.4th 1014, 1026.) We therefore decline to follow
them.
At oral argument, Westamerica suggested that some unusual
deposition-related costs may not be recoverable under section 1032
(although it was unwilling to concede the point). This simply
underscores the fact that Westamerica’s liability for these costs is
unknown at this stage. In a final cost allocation, the parties can argue
which costs should be recovered, and the court may be required to
exercise its discretion on some items. (See § 1033.5, subd. (c)(4) [“Items
not mentioned in this section . . . may be allowed or denied in the
court’s discretion.”]; Foothill-De Anza Community College Dist. v.
Emerich (2007) 158 Cal.App.4th 11, 29-30 [where cost items are not
expressly prohibited by section 1033.5, they are “recoverable in the trial
court’s discretion if ‘reasonably necessary to the conduct of the
litigation’ ”].) Because the outcome remains uncertain, the matter has
not been finally determined for purposes of the collateral order
doctrine. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967 [the policy
underlying the one final judgment rule is served when a later trial
court ruling may obviate the need for an interlocutory appeal].)
B.
We summarily reject Westamerica’s one-sentence request to treat
this appeal as a petition for an extraordinary writ. (See Wells
Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [declining to treat
a nonappealable order as a writ petition absent extraordinary
circumstances].)
DISPOSITION
Westamerica’s appeal is dismissed.
_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A161079
Alameda County Superior Court Case Nos. JCCP4921, RG15757606,
The Honorable Brad Seligman
Lawyers for Justice, PC, Edwin Aiwazian, Arby Aiwazian, Joanna
Ghosh and Charles T. Sweeny; Schneider Wallace Cottrell Konecky
LLP, Carolyn Hunt Cottrell and David C. Leimbach, for Plaintiffs and
Respondents.
Arent Fox LLP, Paul R. Lynd and Lynn R. Fiorentino, for Defendant
and Appellant.