Longobardo v. Avco Corporation ( 2023 )

Filed 7/11/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ANTHONY LONGOBARDO,
Plaintiff and Respondent, G062374
v. (Super. Ct. No. 30-2018-00970710)
AVCO CORPORATION, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Nick A.
Dourbetas, Judge. Dismissed.
Horvitz & Levy, Jason R. Litt, Curt Cutting, Scott P. Dixler; Yukevich
Cavanaugh, Todd A. Cavanaugh, and Steven D. Smelser for Defendant and Appellant.
KP Law, Aghavni Kasparian, and Zareh A. Jaltorossian for Plaintiff and
Respondent.
Defendant Avco Corporation, a manufacturer of airplane components,
appeals from denial of its summary judgment motion, which was based on the statute of
repose enacted by Congress as part of the General Aviation Revitalization Act (“GARA,”
49 U.S.C. § 40101 note). Defendant contends a denial of summary judgment in this
context constitutes an appealable collateral order under California’s collateral order
doctrine. We conclude it does not and dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Defendant is a manufacturer of airplane components. Plaintiff, a pilot, was
injured when his plane crashed after its engine failed. Plaintiff sued defendant, alleging
causes of action for strict products liability, negligence, and breach of the implied
warranty. Defendant moved for summary judgment, citing GARA’s 18-year statute of
repose. The trial court denied the motion for summary judgment, and defendant timely
appealed.
Shortly after the case reached this court, we issued an order requesting
briefing on whether the trial court’s order was appealable. Both parties filed letter briefs
addressing this issue. We subsequently conducted a hearing, giving the parties an
opportunity for oral argument.
DISCUSSION
“A reviewing court has jurisdiction over a direct appeal only when there is
(1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political
Practices Com’n (2001) 25 Cal.4th 688, 696.) An order denying a motion for summary
judgment is, as the name suggests, an order and not a judgment. “A trial court’s order is
appealable when it is made so by statute.” (Ibid.) Code of Civil Procedure section 904.1,
which lists appealable judgments and orders, does not include orders denying a motion
for summary judgment. These basic principles gave rise to the well-known, long-
established rule that “An order denying a motion for summary judgment is not
appealable.” (Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 445.)
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Meanwhile, the collateral order doctrine, as the California Supreme Court
has historically described it, allows an appeal to be taken “[w]hen a court renders an
interlocutory order collateral to the main issue, dispositive of the rights of the parties in
relation to the collateral matter, and directing payment of money or performance of an
act.” (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) A similar doctrine (with the
same name) exists in federal court. In federal cases, interlocutory orders are appealable
as collateral orders only if they “[are] conclusive, resolve important questions completely
separate from the merits, and render such important questions effectively unreviewable
on appeal from a final judgment in the underlying action.” (Estate of Kennedy v. Bell
Helicopter Textron, Inc. (9th Cir. 2002) 283 F.3d 1107, 1110 (Estate of Kennedy).)
In federal court, a split of authority exists over whether an order denying
summary judgment based on the GARA statute of repose is directly appealable under the
collateral order doctrine. In Estate of Kennedy, supra, a divided panel of the Ninth
Circuit concluded such an order was, in fact, directly appealable. The majority wrote,
“like qualified immunity accorded to government officials, the applicability of the GARA
statute of repose is an important question which is resolved completely separate from the
merits of the litigation.” (Id. at p. 1110.)
The Third Circuit disagreed in Robinson v. Hartzell Propeller, Inc. (2006)
454 F.3d 163. The court emphasized that the collateral order doctrine was a “‘narrow
exception’” to the ordinary rule that only final judgments are appealable, and that it
contained “‘stringent’ requirements.” (Id. at p. 168.)
State courts in other states, applying their own versions of the collateral
order doctrine, have also reached differing conclusions. The Pennsylvania Supreme
Court applied its own version of the collateral order doctrine, codified as Pennsylvania’s
Rule of Appellate Procedure 313(b), and held an order denying summary judgment under
GARA’s statute of repose was appealable. (Pridgen v. Parker Hannifin Corp. (2006) 588
Pa. 405.) Florida’s District Court of Appeal for the First District came to the opposite
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conclusion, applying its “certiorari” doctrine, which is similar to writ review in
California. (AVCO Corp. v. Neff (2010) 30 So.3d 597.)
At first blush, this question seems easily resolved by one of the principal
differences between California’s version of the collateral order doctrine and the federal
rule: California’s unique requirement that an appealable collateral order must direct
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payment of money or performance of an act. An order denying summary judgment does
not direct payment of money or performance of an act, and therefore cannot be
appealable under California’s collateral order doctrine.
However, as appellant points out, one recent decision has called into
question whether this element of the collateral order doctrine remains viable. In Muller v.
Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, a panel of
the Court of Appeal for the Second District, Division Eight, concluded this element was
effectively abandoned by our Supreme Court, sub silentio, in three cases: Meehan v.
Hopps (1955) 45 Cal.2d 213, Southern Pacific Co. v. Oppenheimer (1960) 54 Cal.2d 784,
and Takehara v. H.C. Muddox Co. (1972) 8 Cal.3d 168. The court explained away later
express Supreme Court restatements of the “payment of money or performance of an act”
element in In re Marriage of Skelley, supra, Bauguess v. Paine (1978) 22 Cal.3d 626, and
I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327 as reflecting only an “apparent
inconsistency” with the earlier cases. The Muller court also found it significant that the
federal collateral order doctrine differed from California’s on this point, and that the
federal rule “has functioned in the federal courts without these limitations since its
inception in 1949.” (Muller, supra, at p. 903.)
In subsequent cases, California courts describing the collateral order
doctrine have largely continued to recite all three elements, often without acknowledging
the split in authority or taking a side. (See, e.g., Sanchez v. Westlake Services, LLC
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Pennsylvania’s collateral order doctrine also omits this element. (Pridgen,
supra, 588 Pa. at p. 411.)
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(2022) 73 Cal.App.5th 1100, 1107–1108; Dr. V Productions, Inc. v. Rey (2021) 68
Cal.App.5th 793, 798; Reddish v. Westamerica Bank (2021) 68 Cal.App.5th 275, 278;
Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 464; Hanna v. Mercedes-Benz USA,
LLC (2019) 36 Cal.App.5th 493, 506; Apex LLC v. Korusfood.com (2013) 222
Cal.App.4th 1010, 1015–1016; Krikorian Premiere Theatres, LLC v. Westminster
Central, LLC (2011) 193 Cal.App.4th 1075, 1084–1085.)
As an additional complication, California’s summary judgment statute
already provides for appellate review of denials of motions for summary judgment, but
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only through the writ review process. (Code Civ. Proc., § 437c, subd. (m)(1).)
Appellant has not provided us with a single published California case in which an order
denying summary judgment, on any topic, was held to be an appealable collateral order.
Nor could we find one.
We also note that California appellate courts routinely use the writ process
to handle denials of summary judgment based on other statutes of repose, which would
presumably implicate similar policy concerns. (See, e.g., Hensel Phelps Construction
Co. v. Superior Court (2020) 44 Cal.App.5th 595; Inco Development Corp. v. Superior
Court (2005) 131 Cal.App.4th 1014.)
We conclude an order denying a summary judgment motion based on the
GARA statute of repose is not appealable because it does not direct the payment of
money or performance of an act. In so doing, we depart from the Muller court. In our
view, the Supreme Court has set forth a rule governing the application of the collateral
order doctrine, expressly and repeatedly. Those decisions bind us unless and until the
Supreme Court or the Legislature overturns them. To the extent prior Supreme Court
decisions appear inconsistent, we conclude those cases create only limited exceptions to
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Defendant also filed a writ petition challenging the trial court’s denial of
defendant’s summary judgment motion, which a different panel of this court denied.
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the general rule. And none of those previous cases involved a summary judgment motion
or any analogous procedure.
Moreover, we disagree with the Muller court that the existence of a
differing federal collateral order doctrine demonstrates that our rule should be the same.
California’s system of appealability, including its statutory writ procedure, is distinct
from the federal appealability rules in many ways. One such difference is the more
limited availability of civil writ relief in federal court. (Compare Goelz et al., Practice
Guide: Federal Ninth Circuit Civil Appellate Practice (The Rutter Group 2023) ¶ 13:155
[orders denying summary judgment almost never reviewable by writ] with Code Civ.
Proc., § 437c, subd. (m)(1) [expressly authorizing writ review of orders denying
summary judgment] and Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2022) ¶ 15:106 [noting availability of writ relief from orders denying
summary judgment and collecting many recent published examples].) California’s more
generous writ review process allows it to adopt a narrower collateral order doctrine.
Last, we fear that extending the collateral order doctrine to apply to an
imprecisely defined class of orders denying summary judgment motions could lead to
confusion. Deeming an interlocutory order immediately appealable is a double-edged
sword. On the one hand, the aggrieved party gains a right to immediate appellate review.
On the other, if that right is not timely exercised, the order becomes unreviewable on
appeal from the final judgment. We anticipate that, were we to hold this order
appealable, it might come as a shock to lawyers and litigants in other GARA cases whose
appellate rights we thereby effectively extinguished, and a matter of grave concern to
lawyers and litigants in cases involving similar statutes of limitation or repose. Even if
an appeal is taken, in many cases the appellate process will result only in delay in
resolution of the case. (See Hewlett-Packard Co. v. Oracle Corp. (2015) 239
Cal.App.4th 1174, 1184–1186 [examining delaying effect of immediate appellate right
from orders on anti-SLAPP motion].)
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As demonstrated by cases like Inco Development Corp. v. Superior Court
(2005) 131 Cal.App.4th 1014 and Hensel Phelps Construction Co. v. Superior Court
(2020) 44 Cal.App.5th 595, in which the court of appeal published opinions arising from
writ petitions challenging orders denying summary judgment motions based on statutes
of repose, the existing writ procedure provides meaningful review for litigants like
defendant. We are skeptical that abandoning this approach would do more good than
harm. Fortunately, California law does not compel us to do so.
DISPOSITION
The appeal is dismissed.
Plaintiff shall recover his costs on appeal.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
MOTOIKE, J.
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