Aleman v. AirTouch: California Appellate Court Clarifies Death Knell Doctrine, Class Certification Rules
California’s Second Appellate District has clarified the proper application of the “death knell” doctrine to denials of class certification, and in the process has carved out an exception to the general rule proscribing successive class certification motions. See Aleman v. AirTouch Cellular, No. B231142, ___ Cal. App. 4th ___ (Sept. 20, 2012) (available here). The unanimous opinion, certified for publication, thus provides important guidance for practitioners navigating California’s rules pertaining to appealing denials of class certification and determining when multiple class certification motions are, and are not, permissible in California trial courts. In particular, Aleman is clear in its holding that, where class certification is denied without prejudice, the death-knell doctrine may not be invoked to allow an appeal. Aleman thus also underscores that, notwithstanding the general rule that a plaintiff may only bring one class certification motion in a California trial court, it is a permissible exercise of a trial court’s discretion to deny certification without prejudice and subsequently allow successive class certification motions.
In the underlying wage and hour class action, employees who worked at AirTouch stores and mall kiosks alleged violations concerning both split shift and reporting time pay. See slip op. at 2-3. The plaintiffs moved for class certification while issues bearing on the split shift and reporting time claims were on appeal. See slip op. at 6-7. The trial court denied the class certification motion, but did so “without prejudice” to the plaintiffs bringing a subsequent class certification motion, after the disposition of the pending appeal. Id. Additionally, the trial court provided express guidance as to the first class certification motion’s weaknesses, noting that the plaintiffs would have to reconcile potential intra-class conflicts to satisfy the adequacy requirement. See slip op. at 7.
Rather than awaiting the resolution of the appeal concerning the split shift and reporting time issues, the plaintiffs appealed the trial court’s denial of class certification, thereby giving rise to the central legal question in Aleman: Was the plaintiffs’ appeal a proper invocation of the “death-knell” doctrine? See slip op. at 29-31. The Aleman panel answered in the negative, formulating a bright-line rule that where class certification is denied without prejudice, an interlocutory appeal is not appropriate: “The death knell has not yet sounded. The remaining plaintiffs’ ability to pursue class certification has not been terminated. Because the denial order was without prejudice, the remaining plaintiffs are free to move for class certification again.” Slip op. at 30.
Therefore, it is critical for practitioners, when a California state trial court judge denies class certification “without prejudice,” to establish on the record (as in Aleman) that the trial court will in fact exercise its authority to hear a second class certification motion. See slip op. at 29 (“The court made clear that plaintiffs would be able to bring a new motion.”). A similar record in which the trial court’s intentions are unambiguous coupled with citation to Aleman should suffice to overcome a defendant’s argument based on the abundant authority holding that, in California state court, plaintiffs may move only once for class certification. See, e.g., Stephen v. Enterprise Rent-A-Car, 235 Cal. App. 3d 806 (1991) (explaining that California’s strict one-certification-motion rule necessitates applying the death-knell doctrine).