Banta v. American Medical Response CA2/2 ( 2016 )

Filed 2/22/16 Banta v. American Medical Response CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
VAUGHN BANTA, B255239
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC393113)
v.
AMERICAN MEDICAL RESPONSE,
INC., et al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Elihu Berle, Judge. Dismissed.
Van Vleck Turner & Zaller, Brian F. Van Vleck for Plaintiff and Appellant.
Epstein Becker & Green, Michael S. Kun for Defendants and Respondents.
___________________________________________________
Plaintiff purports to appeal from the trial court’s refusal to certify a class as to
some—but not all—of his claims. We dismiss for lack of a final, appealable judgment.
FACTS
Vaughn Banta initiated a putative class action lawsuit against American Medical
Response, Inc. (AMR) and related entities in 2008. The operative pleading alleges that
Banta, who is employed by AMR as a paramedic, failed to receive overtime pay, meal
breaks, rest breaks, and itemized wage statements, in violation of the Labor Code. This is
allegedly a company policy affecting some 11,000 employees.
Banta sought class certification, identifying the class members as emergency
medical technicians and paramedics in Southern California. AMR opposed certification
on the grounds that Banta failed to establish his adequacy as class representative or a
“community of interest” on his claims.
At a hearing on February 25, 2014, the trial court granted class certification on
AMR’s alleged failure to pay overtime, and ordered the parties to meet and confer
regarding the notice that must be given to class members. The court denied class
certification as to the meal and rest break claims, finding insufficient evidence to
demonstrate a common issue, or that the matter would not require individualized inquiry.
DISCUSSION
The “one final judgment” rule prohibits review of intermediate ruling until a final
resolution of the case, because allowing multiple appeals in a single action is oppressive
and costly. (Griset v. Fair Political Practices Com. (2001) 25 Cal. 4th 688, 697.) The
rule “reduces the ability of litigants to harass opponents and to clog the courts through a
succession of costly and time-consuming appeals.” (Flanagan v. United States (1984)
465 U.S. 259, 264.)
In the context of class actions, an exception “renders appealable only those orders
that effectively terminate class claims but permit individual claims to continue.” (In re
Baycol Cases I & II (2011) 51 Cal. 4th 751, 754 (Baycol).) This is the “death knell”
doctrine. (Ibid.) The justification for the death knell doctrine is that (1) the order is “the
practical equivalent of a final judgment for some parties” that “‘virtually demolishe[s] the
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action as a class action’” and has the legal effect of “‘a dismissal of the action as to all
members of the class other than plaintiff,’” and (2) failing to treat the order as a de facto
final judgment would likely foreclose any appeal. (Id. at p. 757, quoting Daar v. Yellow
Cab Co. (1967) 67 Cal. 2d 695, 699.)
Critically, the Supreme Court stressed that “orders 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; only an order that
entirely terminates class claims is appealable.” (Baycol, 51 Cal.4th at pp. 757-758, italics
added. Accord, Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal. App. 4th 1440, 1448
[only an order “denying a class certification motion in its entirety, and preserving only a
claim for damages for the individual plaintiff” is appealable].)
Banta’s statement of appealability does not acknowledge that the trial court
certified a class for unpaid overtime. The minute order states, “The motion for class
certification is granted as to the issue of overtime.” This is not an appealable order. It
does not “entirely terminate[ ] class claims” under Baycol. It does not “demolish the
action as a class action.” It does not foreclose an appeal following resolution of the
overtime claims. At most, the order limits the scope of the class or the number of claims
available to it. What is lacking is “a dismissal of everyone ‘other than plaintiff.’”
(Baycol, supra, 51 Cal.4th at p. 758.)
Four days after Banta filed his notice of appeal, the parties stipulated that the trial
court’s certification of a class (and the need to send notice to class members) was “stayed
pending resolution” of the appeal. The stipulation did not create a final judgment. Either
the trial court certified a class as to the overtime claims, or it failed to enter a final order
on the issue. Either way, the class claims continue until they are resolved at trial or
dismissed “with prejudice.” (Aleman v. Airtouch Cellular (2012) 209 Cal. App. 4th 556,
584-586.) “[T]he parties’ agreement holding some causes of action in abeyance for
possible future litigation after an appeal from the trial court’s judgment on others renders
the judgment interlocutory and precludes an appeal under the one final judgment rule.”
(Kurwa v. Kislinger (2013) 57 Cal. 4th 1097, 1100.)
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Apart from seeking to proceed with a class action, Banta also proceeds on behalf
of similarly situated employees pursuant to Labor Code section 2698 et seq., the Private
Attorney Generals Act (PAGA). Banta’s statement of appealability does not
acknowledge that his PAGA claims as to each cause of action are still pending below.
A plaintiff who seeks PAGA penalties “is not doing so as an individual, but
instead as a representative of the state, and on behalf of similarly ‘aggrieved’
employees.” (Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal. App. 4th 291, 310.)
The penalties are $100 for each aggrieved employee per pay period for the initial
violation and $200 per employee for each subsequent violation. (Lab. Code, § 2699.)
“Given 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. Denial of class
certification where the PAGA claims remain in the trial court would not have the ‘legal
effect’ of a final judgment under the reasoning of Baycol and Daar.” (Munoz, at p. 311,
fns. omitted.)
For two reasons, then, this appeal must be dismissed. First, the trial court did not
deny the class certification motion in its entirety: class certification as to overtime claims
was granted, or remains viable. Second, plaintiff’s PAGA claims on behalf of similarly
aggrieved employees provide the requisite financial incentive to continue on. In the
words of this Court, “The death knell has not yet sounded.” (Aleman v. Airtouch
Cellular, supra, 209 Cal.App.4th at p. 586.) We do not perceive any “‘unusual
circumstances’” that would justify treating this unjustified appeal as an extraordinary
writ. (Munoz v. Chipotle Mexican Grill, Inc., supra, 238 Cal.App.4th at p. 312.)
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DISPOSITION
The appeal is dismissed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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