Tuesday, July 28, 2015

For Whom the Death Knell Tolls Not

Munoz v. Chipotle Mexican Grill, No. 249505 (D2d1 Jun. 30, 2015).

Second Munoz case decided on the same day, but different Munozes.

This Munoz filed a class action alleging a slew of wage and hour claims, claims that expenses for work clothing were improperly deducted from pay, and claims under the Labor Code Private Attorney General Act. The court largely denied class cert because individual issues predominated. But the PAGA claims—which don
’t require cert because they are brought, effectively, on behalf of the state in an enforcement capacity—were unaffected. Munoz appealed.

Generally, a plaintiff can appeal an outright denial of class cert under the “death knell” doctrine. The rationale is that, with class treatment off the table, it often becomes economically unviable for an individual plaintiff to pay his attorney to continue to pursue the case to judgment. So, as a matter of policy, an interlocutory appeal is permitted. But the doctrine doesn’t permit an appeal when class cert is partially denied. So long as there’s enough of a claim to profitably prosecute, the plaintiff maintains an incentive to continue. The policy against piecemeal appeals trumps the policy supporting immediate review.

Here, class cert was denied in full. But Munoz still has his PAGA claims. He asserts them on behalf of 26,000 employees. And the PAGA penalties are $100 per employee, per pay period in which a violation continues, 25 percent of which go to the plaintiff. So there’s still plenty of economic incentive for him to forge on, even without the class. The death knell hath not tolled!

Appeal dismissed.

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