Can You Toll Your Own Death Knell?

Cortez v. Doty Bros. Equip. Co., No. B275255 (D2d7 Sept. 1, 2017)

This case presents but doesn’t resolve some pretty complicated questions about appealability and the death knell doctrine.

Under the death knell doctrine, an order denying class cert or compelling a case to arbitration under an arb agreement with a class action waiver can be appealable, notwithstanding the lack of a final judgment. The logic is that, by taking away the class remedy, the case often becomes financially unfeasible to litigate on an individual basis, so an appeal is merited to keep the decision from being essentially unreviewable. 

An exception has developed in employment cases where plaintiff brings a claim under the Private Attorney General Act. PAGA claims, including claims brought on a representative basis, can’t be compelled to arbitration. And since they remain viable, courts have been holding that the death knell doctrine doesn’t apply to an order that sends other class claims to arbitration but severs and stays a PAGA claim pending the arbitration result.

That’s basically what happened to plaintiff. His class claims got sent to arbitration and his PAGA claim got stayed pending the outcome. He took an appeal from order, relying on the death knell doctrine. But while the appeal was pending, the court of appeal decided a bunch of cases that solidified the PAGA exception. 

Plaintiff saw the writing on the wall. After his appeal had been pending for a year, he dismissed his PAGA claim and filed a new notice of appeal. He now argues that there’s no longer any death knell impediment and that his second notice was timely, based on the date on which the death knell obstacle was removed. 

This raises a whole raft of issues. Can a plaintiff ring the death knell his own claims? What event starts the clock running to file a notice of appeal? If the clock started with the PAGA dismissal—in which case the appeal is timely—can that appeal reach back and merit review of the arbitration order as an order subsumed into an effective final judgment under Code of Civil Procedure § 906?

But the Court here declines to wade into the mess, avoiding the question by exercising its discretion to just treat the appeal as a writ.

On the merits, the court finds that the trial court erred in finding that one of plaintiffs’ claims was within the scope of the relevant arbitration clause. But it was otherwise correct. 

Writ granted.