Opinion
B200331
6-9-2008
WALL UNITS, INC., Plaintiff and Appellant, v. STATE COMPENSATION INSURANCE FUND, Defendant and Respondent.
Law Offices of Barry L. Kramer, Barry L. Kramer; Strange & Carpenter, Brian R. Strange, Gretchen Carpenter for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Fred R. Puglisi, James M. Burgess, Erica S. Alterwitz; State Compensation Insurance Fund, Charles W. Savage, Betty R. Quarles, Isabelle Lallana for Defendant and Respondent.
NOT TO BE PUBLISHED
Plaintiff Wall Units, Inc. (Wall Units) pursued a class action lawsuit against defendant State Compensation Insurance Fund (SCIF) for allegedly misreporting the loss experience in workers compensation insurance claims. Wall Units appeals the order denying its motion for class certification and the order denying its motion for reconsideration which was based on a more narrowly defined class. Contrary to the contentions by Wall Units, the trial court did not abuse its broad discretion in denying class certification, the order denying the motion for reconsideration is not appealable, and the evidentiary complaints by Wall Units are unavailing.
We thus affirm the order denying class certification and dismiss the purported appeal from the order denying reconsideration.
FACTUAL AND PROCEDURAL SUMMARY
This class action lawsuit was originally filed in 1998 and was previously before us on appeal in 2006. (See American Recycling International, Inc. v. State Compensation Insurance Fund (Apr. 27, 2006, B175596 [nonpub. opn.].) The prior appeal involved two consolidated cases (by Judge Peter Lichtman) affecting two plaintiffs, American Recycling International, Inc. (American Recycling) and Wall Units.
The underlying matter entailed allegations that SCIF had mishandled and misreported two categories of workers compensation claims—one category was "declared non-compensable" claims (Subclass A), and the other category was "administratively closed non-compensable" claims (Subclass B). At the time of the prior appeal, Wall Units was the class representative for Subclass A claims, and American Recycling was the class representative for Subclass B claims.
We held in the prior appeal that the trial court had properly sustained SCIFs demurrer without leave to amend as to American Recycling, because American Recyclings Subclass B claims relating to "administratively closed non-compensable claims" were foreclosed by the settlement in another class action (the Schaefer settlement). We thus affirmed as to American Recycling. However, we reversed the order dismissing the class allegations by Wall Units. We held that the trial court had erroneously granted summary judgment against Wall Units because, in pertinent part, there were triable issues of fact as to whether its claims were barred by the statute of limitations.
Following further proceedings in the trial court, in February of 2007, Wall Units moved for certification of a class of employer plaintiffs who had "declared non-compensable" claims that SCIF had misreported. Specifically, Wall Units defined the new proposed class for which it sought certification as follows: "All California employers who have purchased workers compensation insurance policies from [SCIF] incepting during the period from January 1, 1989 through December 31, 1993, in regard to which insurance [SCIF] has reported to the [Rating Bureau] a workers compensation claim that was `declared Non-Compensable within the meaning of the Rating Plan, but which [SCIF] did not report with loss coverage code `03."
SCIFs obligation to properly code and thus correctly report a "declared non-compensable" claim is significant because it can affect an employers workers compensation insurance premiums. As described in the California Workers Compensation Unit Statistical Plan (1983) (see Cal. Code Regs., tit. 10, § 2318.5), insurers are required periodically to calculate and submit experience modification data, i.e., unit statistical reports which are based on every claim submitted on each employers policy. The unit statistical reports can be revised for several reasons, such as clerical error, subrogation recovery, or as is pertinent here the existence of a "declared non-compensable" claim. (Cal. Code Regs., tit. 10, § 2318.5, sec. III, pt. B,, par. 1.)
The text of the California Workers Compensation Unit Statistical Plan is not reproduced in the California Code of Regulations. As indicated in the California Code of Regulations, title 10, section 2318.5, although the text of that regulation is not printed in the code, it is available to the public at the offices of the Insurance Commissioner and the Workers Compensation Insurance Rating Bureau. The text of that regulation, however, was lodged with the trial court and is part of the record on appeal.
A claim is "declared non-compensable" if it satisfies one of three prongs of the regulatory definition. "A claim is declared non-compensable if: (1) [First prong: "take nothing claim"] There is an official ruling specifically holding that a claimant is not entitled to benefits under the Workers Compensation Laws of California, even though the claimant may have been awarded reimbursement for expenses incurred by the claimant in presenting his case. (2) [Second prong: "statute of limitations claim"] No claim was filed during the period of limitation provided by the Workers Compensation Laws of California for the filing of such claim, and the carrier therefore closes the claim. (3) [Third prong: "dismissed claim"] Where the carrier contends, prior to the valuation date, that a claimant is not entitled to benefits under the Workers Compensation Laws and the claim is officially closed because of the claimants failure to prosecute his claim." (Cal. Code Regs., tit. 10, § 2318.5, sec. III, pt. B, par. 1(b).)
Under the California Workers Compensation Experience Rating Plan (a copy of which was lodged with the trial court and is in the record on appeal), a "declared non-compensable" claim is defined in a substantially similar manner as in the above quoted regulation.
The new class definition framed by Wall Units after our prior opinion in 2006 encompassed all three prongs of the "declared non-compensable" definition. However, the only factual scenario alleged by Wall Units was one situation where SCIF failed to submit a revision for a claim that was dismissed for failure to prosecute, a claim within the third prong of the "declared non-compensable" definition. Specifically, Wall Units, which was insured by SCIF from March 28, 1989, to March 28, 1993, asserted that it was improperly denied a revision to its experience modification and premiums for the 1992 and 1993 policy years. During the 1989 policy year, an employee of Wall Units (Leon Wiley) filed a workers compensation claim arising out of an alleged injury. For unit statistical purposes, claims for 1989 policy year for Wall Units had valuation dates as of September 28, 1990, September 28, 1991, and September 28, 1992. SCIF first learned of the Wiley claim on July 16, 1991, and denied the claim on October 15, 1992. On June 15, 1993, the Workers Compensation Appeals Board (WCAB) dismissed Wileys claim for failure to prosecute.
SCIF denied that Wileys claim was a "declared non-compensable" claim, within the meaning of the applicable regulation, or that it had misreported Wileys claim. SCIFs position was based on the fact that, pursuant to the above quoted regulatory definition, a claim can only be "declared non-compensable" under the third prong if the carrier contested the claim "prior to the valuation date." (Cal. Code Regs., tit. 10, § 2318.5, sec. III, pt. B, par. 1(b)(3).) Here, the claim by Wall Units was not contested until October 15, 1992, which was after the third valuation date of September 28, 1992, the last valuation date that impacted the experience modifications and premiums for Wall Units.
On April 20, 2007, a class certification hearing ensued, and the trial court (Judge Wendell Mortimer, Jr.) took the matter under submission. On April 30, 2007, the court denied the motion by Wall Units for class certification. The court held as follows: "The class definition is over-broad and the class is not readily ascertainable. [Wall Units] has identified ten legal questions that must be answered before a class member can be identified. Further, there are three cat[e]gories of claims [which are the three prongs of `declared non-compensable claims]. Thus common questions of law or fact do not exist. Even if class members could be found, they would need to individually prove liability issues and damages. Named plaintiff is not, and cannot be, typical of all the categories, and named plaintiff has no dividend damages and cannot adequately represent the class. Certifying such a diverse class would not confer substantial benefits on the litigants and the court."
Wall Units then moved for reconsideration based on a proposed narrower class for certification. Wall Units defined its proposed narrower class as follows: "All California employers who have purchased workers compensation insurance policies from [SCIF] incepting during the period from January 1, 1989 through December 31, 1993, in regard to which insurance [SCIF] reported to the [Rating Bureau] workers compensation claims for which [SCIF] denied benefits to the applicants and which were subsequently dismissed by the Workers Compensation Appeals Board, but for which [SCIF] failed to report the claim losses with a loss coverage of `03." (Italics added.) This narrower class was intended by Wall Units to correspond to only one of the three categories of "declared non-compensable" claims that were covered by its previous motion for class certification, namely, the category that included the claim by Wall Units.
On June 8, 2007, the trial court denied the motion by Wall Units for reconsideration and for an order certifying a narrower class. The court sustained certain evidentiary objections and ruled, in pertinent part, that "[n]o new facts or law are presented as required by Code of Civil Procedure Section 1008."
Wall Units appeals from the order denying its motion for class certification and purports to appeal from the order denying its motion for reconsideration seeking to certify a narrower class.
DISCUSSION
I. Appealability of an order denying class certification, and the standard of review on appeal.
An order denying certification to an entire class in a class action lawsuit is appealable. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.)
"Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435; see Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 655.) "Our task on appeal is not to determine in the first instance whether the requested class is appropriate but rather whether the trial court has abused its discretion in denying certification." (Osborne v. Subaru of America, Inc. (1988) 198 Cal.App.3d 646, 654.)
As our Supreme Court explained, a reviewing court will "not disturb a trial court ruling on class certification which is supported by substantial evidence unless (1) improper criteria were used [citation]; or (2) erroneous legal assumptions were made [citation]." (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470.) Thus, "`[s]o long as [the trial] court applies proper criteria and its action is founded on a rational basis, its ruling must be upheld. [Citation.]" (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758, 764-765.)
"In other words, we will not substitute our judgment for that of the trial court as long as the trial court applied correct legal principles and assumptions, and did not abuse its discretion in arriving at its decision." (Reese v. Wal-Mart Stores, Inc. (1999) 73 Cal.App.4th 1225, 1229; see Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 361.)
"Accordingly, we must examine the trial courts reasons for denying class certification. `Any valid pertinent reason stated will be sufficient to uphold the order." (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 436.)
II. The trial court used proper legal criteria and assumptions in denying class certification when it focused on the absence of "common questions of law or fact."
A. General legal principles.
Pursuant to Code of Civil Procedure section 382, a class action may be brought "when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court." Thus, "[t]he party seeking certification as a class representative must establish the existence of an ascertainable class and a well-defined community of interest among the class members. [Citation.] The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]" (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470.)
The fundamental rationale for the class action statute is "the equitable doctrine of virtual representation, which "`rests upon considerations of necessity and paramount convenience, and was adopted to prevent a failure of justice." [Citations.]" (Daar v. Yellow Cab (1967) 67 Cal.2d 695, 703-704.) Nonetheless, the California Supreme Court has cautioned that "group action is also capable of injustice" (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385), and has "consistently admonished trial courts to carefully weigh respective benefits and burdens and to allow maintenance of the class action only where substantial benefits accrue both to litigants and the courts." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.)
B. Common issues of law or fact do not predominate.
Class certification is improper when "class members would have to prove individually the existence of liability and damages." (Caro v. Procter & Gamble & Co., supra, 18 Cal.App.4th at p. 669.) Class certification must be rejected "`[i]f the rights of each member of the class are dependent on facts applicable only to him." (Daar v. Yellow Cab, supra, 67 Cal.2d at p. 705.) "Class actions will not be permitted . . . where there are diverse factual issues to be resolved, even though there may be many common questions of law." (Brown v. Regents of University of California (1984) 151 Cal.App.3d 982, 988-989.)
The community of interest requirement means not just the existence of common questions of law or fact, but that those common questions actually predominate. (City of San Jose v. Superior Court, supra, 12 Cal.3d at p. 459.) The need to show that common questions of law or fact predominate "`means "each member [of the class] must not be required to individually litigate numerous and substantial questions to determine his [or her] right to recover following the class judgment; and the issues which may be jointly tried, when compared with those requiring separate adjudication, must be sufficiently numerous and substantial to make the class action advantageous to the judicial process and to the litigants." [Citation.]" (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108.)
In the present case, Wall Units did not submit any issue to be tried jointly. It acknowledged in its motion for class certification that to establish liability it must prove the following: that Wall Units and class members had claims that were non-compensable; that SCIF did not report those claims with a loss coverage code "03" to have the claim removed from the experience modification; and that Wall Units and class members suffered economic damages in the form of increased premiums. As Wall Units further acknowledged during its deposition, to determine the basis of the final ruling denying each claim and thus to determine whether a claim fits within any of the three prongs of the declared non-compensatory category (i.e., claimant took nothing because it was not entitlement to benefits, claimant was barred by the statute of limitations, or claimant did not appear or failed to prosecute), each class member would have to review SCIFs claim files and the Rating Bureaus reporting records.
Accordingly, adjudicating the representative plaintiffs claim could not properly adjudicate liability jointly for the entire class because the court would need to evaluate and establish liability individually for each individual class member.
1. Common issues of law or fact do not predominate as to the third prong (i.e., the failure to prosecute dismissed claims).
SCIF argues that common issues of law or fact do not predominate because: (1) the liability standard differs for each of the three prongs of the declared non-compensable claims; (2) individual claim files for each class member must be reviewed separately as to each of the three prongs to determine if the claim fits within any of the three prongs; and (3) even identifying a non-compensable claim does not mean it was misreported or that the policyholder suffered any damage. We address these matters only in the context of the third prong, which is illustrative of the merit in SCIFs argument.
As stated in the Workers Compensation Experience Rating Plan and as acknowledged by Wall Units, a claim is "declared non-compensable" under the third prong (i.e., claimant did not appear or failed to prosecute) if the following conditions are met: (1) the carrier raised the issue of accident, notice, or causation, (2) prior to the valuation date, (3) continued to contest the claim based on any such issue, and (4) the claim was officially closed because of the claimants non-appearance or failure to prosecute his claim without a ruling on the question of accident, notice or causal relation. Thus, each claim file, as well as potentially the records from the WCAB relating to each claim, must be reviewed to make this determination, again indicating diverse factual issues to be resolved and undermining the ability to establish liability jointly for the entire class.
Moreover, the liability analysis of this third prong varies and is not a common thread even within this one category. Wall Units purports to identify 30 claims within the third prong category. However, most of these claims were not "declared non-compensable." In 10 of these claim files, there was no WCAB order "officially closing" the claims. To be "declared non-compensable" under the third prong, as explained in Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1508, Wall Units must show that the claim was not merely administratively closed, but was "officially closed" by the WCAB. Thus, Wall Units cannot consider 10 of its claim files "declared non-compensable."
In six other of its other claim files, there was a dismissal of a sort, but the claim was not dismissed for "non-appearance or failure to prosecute." In three of these six claims, the claim itself was not dismissed; rather the dismissal was only of SCIF as a party defendant. In the remaining three of the six claims, the claimants voluntarily dismissed their claims without prejudice. A voluntary dismissal and a dismissal for non-appearance or failure to prosecute are considered distinctly different. (See Cal. Code Regs., tit. 8, §§ 10582, 10780.) Thus, the factual details of the various dismissals differ, with not all claims dismissed for "non-appearance or failure to prosecute," again revealing that common issues of law or fact do not predominate.
Regarding the remaining claims in this third prong, further analysis of each claim file and the element of liability is necessary before one could conclude that these claims are non-compensable, or misreported, or led to any damages for Wall Units. For example, as noted above, if the claim was not disputed prior to the valuation date—thus, failing to satisfy one of the prerequisites for a declared non-compensable claim under the third prong—even though there was an order dismissing it for failure to prosecute, such a claim by Wall Units would be not be non-compensable.
Accordingly, SCIFs liability can only be determined by analyzing the individual facts relating to each class member as reflected in each claim file. There was no evidence of any systematic conduct connecting the claim of Wall Units to the claim of any other class member. There was no direct evidence SCIF had any improper company-wide policy or engaged in any common practice which led to systematic misreporting of non-compensable claims. Wall Units, as the moving party, failed to establish with admissible evidence at the evidentiary hearing the common core facts bearing on the appropriateness of class treatment and the substantial similarity of its claim with that of every other class member. (See Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 357-358; Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 471-472.) The "community of interest" (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470) necessary for a class action is lacking.
Hence, the trial court did not abuse its broad discretion in denying class certification.
2. Individual issues predominate concerning the fact of damage and defenses.
Further establishing that common issues of law or fact do not predominate is that individual issues predominate as to the fact of damages and defenses. Wall Units argues that the documents supporting the dismissal of a claim or explaining the reason for the dismissal of a claim are irrelevant, and that the only relevant document is the document issued by the WCAB showing the dismissal of the claim. However, it is undisputed that merely identifying a non-compensable claim does not mean that it was misreported or that the policyholder suffered any damage.
As aptly noted by SCIF, even if Wall Units reviewed each of the over 40,000 claim files and other pertinent records to determine if the claims were "non-compensable," Wall Units would still have to conduct an individualized review to determine whether each claim was misreported and whether each policyholder had a right to recover or was damaged. Although speculative problems regarding the computation of damages are not necessarily fatal to class certification (see Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 617; Rosack v. Volvo of America Corp. (1982) 131 Cal.App.3d 741, 762), the question here is not the calculation of damages. Rather, the question is whether damages exist at all. There must be "a common harm or damage necessarily resulting from conduct or transactions common to all. [T]he factual situation before us [is one] where the transactions may or may not have resulted in harm." (Collins v. Safeway Stores, Inc. (1986) 187 Cal.App.3d 62, 72-73.)
For example, the Rating Bureaus records would have to be evaluated to determine if the policyholder was "experience rated" and had an experience modification. This is necessary because only policyholders who qualified for an "experience rating" and had an experience modification that affected premiums could claim to have been damaged.
Also, each claim file would need to be analyzed to determine when the claim qualified as "declared non-compensable." The timing is important because an experience modification revision would affect premiums only for the current year and the previous two years. If the claim did not qualify as a "declared non-compensable" claim within three years of the last policy year affected by the claim, then the failure to report non-compensable status would not cause any damage.
Finally, "a defendant may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and that issues presented by the defense predominate over common issues." (Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1450.) Here, SCIF asserts that individual issues of fact predominate concerning defenses such as the failure to mitigate and the bar of the statute of limitations. For example, SCIF alleges that Wall Units failed to pay its premium in a timely manner for the 1992 policy year and thus forfeited its right to receive a dividend that would have otherwise offset its premium damage claim for that year. Thus, Wall Units failed to mitigate its damages. This analysis could be required as to each putative class member.
Accordingly, individual issues predominate concerning the fact of damage and legal defenses, further supporting the trial courts exercise of discretion in denying class certification because the essential "community of interest requirement" (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470) for a class action is lacking.
C. The claim by Wall Units was not typical of all class claims.
A plaintiff seeking to maintain a class action must be a member of the class he claims to represent and must be situated similarly to the class members. (Caro v. Procter & Gamble Co., supra, 18 Cal.App.4th at p. 663.) "It is the fact that the class plaintiffs claims are typical and his representation of the class adequate which gives legitimacy to permitting him to bind class members who have notice of the action." (Trotsky v. Los Angeles Fed. Savings & Loan Assn. (1975) 48 Cal.App.3d 134, 146.)
The factual posture of the claim by Wall Units is that because SCIF failed to submit a revision for one of its claims that was dismissed for failure to prosecute, Wall Units was therefore improperly denied a revision to its experience modification and thus not afforded lower premiums for the 1992 and 1993 policy years. Thus, Wall Units asserts only one claim which allegedly fits within only one of the three prongs of "declared non-compensable" claims; i.e., the third prong (a claimant who failed to appear or to prosecute its claim). Wall Units did not have a claim under either of the other two prongs (i.e., claimant took nothing because it was not entitled to benefits, or claimant was barred by the statute of limitations), and its claim thus was not typical of all of those in the initially proposed class definition.
Accordingly, the claim by Wall Units simply was not typical of all the class claims, and for that additional reason the trial court acted well within its discretion in denying the initial class certification request.
It is thus unnecessary to address other issues raised by SCIF. For example, we need not discuss whether Wall Units was an inadequate class representative because it impermissibly waived damage claims on behalf of absent members and could not meaningfully participate in the case because of a lack of adequate records. Nor need we address SCIFs arguments that the class was not readily ascertainable, and that a class action is not a superior method of adjudicating this controversy.
III. The order denying the motion for reconsideration is not appealable.
Wall Units complains that even if the trial court had been justified in denying the original motion for class certification (which it was), the trial court should have granted its motion for reconsideration based on its narrowed class definition, which purportedly satisfied the trial courts concerns. However, an order denying a motion for reconsideration (Code Civ. Proc., § 1008) is not appealable.
As the court in Reese v. Wal-Mart Stores, Inc., supra, 73 Cal.App.4th at pages 1229-1230, aptly held in the context of the denial of class action certification, an "order denying reconsideration is not appealable, and thus, the appeal therefrom is dismissed." Code of Civil Procedure section 904.1 enumerates the types of matters from which an appeal may be taken, and the denial of a motion for reconsideration is not listed. Although in Reese the plaintiff sought reconsideration of the ruling denying certification of the class as originally proposed (Reese, at pp. 1241-1242), unlike here where Wall Units proposed a narrower sub-class, the fact remains that such an order is not appealable.
We acknowledge that there is a split in authority and that some case law has held that the denial of a motion for reconsideration may be treated as an "order made after a judgment" (Code Civ. Proc., § 904.1, subd. (a)(2)) and deemed appealable, if the original order is appealable and if the motion for reconsideration is based on new and different facts. (See, e.g., Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1011.) However, the court in Blue Mountain later revisited its holding and "determined that the better ruling is that a denial of a motion for reconsideration is a nonappealable order." (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160, overruled on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1607.) Other courts have similarly ruled that an order denying a motion for reconsideration, like an order denying a new trial or denying a motion to vacate a prior judgment, is not appealable. (See, e.g., Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Reese v. Wal-Mart Stores, Inc., supra, 73 Cal.App.4th at p. 1242; Crotty v. Trader (1996) 50 Cal.App.4th 765, 768-769.) "[T]o hold otherwise would permit, in effect, two appeals for every appealable decision and promote the manipulation of the time allowed for an appeal." (Reese v. Wal-Mart Stores, Inc., supra, 73 Cal.App.4th at p. 1242.)
Even assuming the validity of the now discredited approach in Blue Mountain, Wall Units cannot satisfy the requirement of new and different facts, circumstances or law. Wall Units argues that the existence of the trial courts order denying the motion for class certification, as well as the submission of a substantially narrowed class definition in the motion for reconsideration, "in and of itself" (original italics) constituted the requisite new and different facts, circumstances or law, sufficient to satisfy Code of Civil Procedure section 1008, subdivisions (a) and (b). Wall Units cites no legal authority for this unfounded theory. Indeed, such a novel and all-encompassing view of the requirement of new and different facts, circumstances or law would swallow up the rule and render the statutory requirement meaningless.
Wall Units correctly notes that successive motions concerning class certification are possible, citing Occidental Land, Inc. v. Superior Court (1976) 18 Cal.3d 355, 360. However, that case did not address the issue of appealability. Also, in that case the matter came before the appellate court not on a direct appeal, but by a petition for writ of mandate filed by the defendant after the denial of its motion to decertify the class. The propriety of a petition for a writ of mandate on class certification has no bearing on the nonappealability of an order denying a motion for reconsideration.
Nor is there any merit to the reliance by Wall Units on the "death knell" doctrine. The "death knell" doctrine, which has been adopted by the California Supreme Court (Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 699), permits the appellate court to review an order denying a motion to certify a class when it is unlikely the case will proceed as an individual action. (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1098.)
An order denying the right to proceed on class action allegations is appealable because "the order is tantamount to a dismissal of the action as to all members of the class other than plaintiff." (Daar v. Yellow Cab Co, supra, 67 Cal.2d at p. 699.) The order is "`in legal effect a final judgment from which an appeal lies." (Shelley v. City of Los Angeles (1995) 36 Cal.App.4th 692, 695.) "The `death knell doctrine assumes that without the incentive of a possible group recovery the individual plaintiff may find it economically imprudent to pursue his lawsuit to a final judgment and then seek appellate review of an adverse class determination." (Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 469-470 [rejecting the "death knell" doctrine].)
Here, the reliance by Wall Units on the "death knell" doctrine as to the order denying reconsideration is misplaced. Wall Units did pursue its lawsuit to final judgment and then did appeal the underlying order denying class certification. There simply was no "death knell" effect because it did obtain review of the underlying judgment. To permit an appeal from the subsequent order denying reconsideration, even when the order effectively denies certification of a newly defined alternative class or a subclass, would result in impermissibly creating multiple final judgments. We also note that the inability of a party to appeal an order denying a motion for reconsideration does not preclude the possibility of review by way of a petition for a writ of mandate.
Finally, contrary to the assumption by Wall Units, even certifying a narrower class limited to the third prong of the non-compensable definition, as urged in its motion for reconsideration, would not cure all the problems cited by the court when it denied class certification. For example, the problems stated by the trial court that "common questions of law or fact" do not predominate and that class members "would need to individually prove liability issues and damages" remain even with the narrower class definition proposed in the motion for reconsideration. Thus, the "community of interest requirement" (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d at p. 470) necessary for a class action is still lacking.
Accordingly, the order denying the motion for reconsideration is not appealable and, in any event, Wall Units would find its contention unavailing.
IV. Claim of evidentiary error.
Wall Units complains that the trial courts order denying class certification struck eight paragraphs in a supporting declaration provided by Wall Units. As indicated in the clerks minute order, the trial court did so "for the reasons stated," reasons apparently stated elsewhere which are not discussed or even mentioned by Wall Units. The trial court also struck a supplemental declaration on the stated grounds that the declaration lacked personal knowledge, was speculative, and had not been timely submitted with the moving papers, in violation of California Rules of Court, rule 3.764(c)(3).
Wall Units contends that the trial court should have continued the matter to allow admissible evidence to be obtained or held an evidentiary hearing on the disputed facts affecting certification of the class. It also urges that "[t]o the extent that the excluded evidence would have influenced the outcome of the hearing, this was error."
However, Wall Units ignores the fact that on April 20, 2007, two months after its motion for class certification, there was a class certification hearing, and a class certification hearing is deemed an evidentiary hearing. (See Hamwi v. Citinational-Buckeye Inv. Co., supra, 72 Cal.App.3d at pp. 471-472.) Also, because Wall Units did not request a continuance, it cannot be heard to complain about it now for the first time on appeal. (See Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) Finally, Wall Units makes no effort on appeal to argue specifically how the excluded evidence would result in a more favorable outcome, and thus has failed to establish any prejudice.
DISPOSITION
The order denying class certification is affirmed. The purported appeal from the order denying reconsideration is dismissed. SCIF is entitled to costs on appeal..
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.