Rel v. Pac. Bell Mobile Servs.

245 Cal. Rptr. 3d 490, 33 Cal. App. 5th 882
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 29, 2019
DocketA152225
StatusPublished
Cited by14 cases

This text of 245 Cal. Rptr. 3d 490 (Rel v. Pac. Bell Mobile Servs.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rel v. Pac. Bell Mobile Servs., 245 Cal. Rptr. 3d 490, 33 Cal. App. 5th 882 (Cal. Ct. App. 2019).

Opinion

BURNS, J.

*885The trial court dismissed this proposed class action lawsuit because plaintiffs failed to comply with Code of Civil Procedure section 583.310,1 which requires an action to "be brought to trial within five years after the action is commenced against the defendant." The main issue here is whether a pretrial order dismissing the class claims qualifies as a "trial" for purposes of the five-year dismissal statute. In class action lawsuits, such a pretrial order is treated as a final judgment and is therefore immediately appealable under the so-called death knell doctrine. A second issue is whether an appellate decision reversing a death knell order triggers a three-year extension under section 583.320, subdivision (a)(3). Both are issues of first impression.

*886We conclude a death knell order does not constitute a trial under the five-year dismissal statute and an appellate decision reversing such an order does not trigger the three-year extension. Accordingly, we affirm.

BACKGROUND

A.

The Death Knell Doctrine

The one final judgment rule is a fundamental rule of appellate practice: " ' "an appeal may be taken only from the final judgment in an entire action." ' " ( In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756, 122 Cal.Rptr.3d 153, 248 P.3d 681 ; § 904.1.) An exception to the one final judgment rule is the death knell doctrine, which is unique to class actions. ( Baycol Cases , at p. 757, 122 Cal.Rptr.3d 153, 248 P.3d 681.) "This doctrine provides that an order which allows a plaintiff to pursue individual claims but prevents the plaintiff from maintaining the claims as a class action, is treated as a final judgment. [Citation.] The order is immediately appealable because it 'effectively r[ings] the death knell for the class claims.' " ( Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 585-586, 146 Cal.Rptr.3d 849, citing Baycol Cases , at p. 757, 122 Cal.Rptr.3d 153, 248 P.3d 681.)

B.

Tucker II

In the case at bar, we have considered two death knell rulings in prior related appeals: Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 145 Cal.Rptr.3d 340 ( Tucker II ) and Rel v. Pacific Bell Mobile Services, 2016 WL 2756718 (May 9, 2016, A144349) (nonpub. opn.) ( Rel ). The procedural history of this case is complex-involving 15 years of litigation and several prior appeals-and we refer the reader to our prior opinions for *493details. On our own motion, we take judicial notice of Tucker II and Rel as well as the underlying appellate records. (See Evid. Code, § 452, subd. (d).) We first discuss Tucker II.

Diane Tucker initiated this action in December 2003 as a putative private attorney general under the unfair competition law ( Bus. & Prof. Code, § 17200 et seq. ) against defendants Cingular Wireless LLC and Pacific Bell Mobile Services (collectively, Cingular). Tucker challenged Cingular's marketing of "bucket plans," which essentially purported to give subscribers a specified number of minutes of mobile phone use for a monthly rate. Plaintiffs Monica Hodge and Angela Rel (collectively, Hodge) were added to the action after *887Tucker lost standing to proceed with the unfair competition claims. ( Tucker II, supra , 208 Cal.App.4th at pp. 208-209 & fns. 2, 4, 145 Cal.Rptr.3d 340.)

After several years of motions, discovery, and appellate proceedings not relevant here, Hodge filed a fifth amended complaint in 2011. Cingular demurred. The trial court sustained the demurrer to the class allegations without leave to amend, sustained the demurrer to the individual fraud claims with leave to amend, and otherwise overruled the demurrer. Hodge appealed the dismissal of the class allegations. ( Tucker II, supra, 208 Cal.App.4th at p. 209 & fn. 6, 145 Cal.Rptr.3d 340.)

In Tucker II , we held the order was appealable under the death knell doctrine. ( Tucker II, supra , 208 Cal.App.4th at p. 209 & fn. 7, 145 Cal.Rptr.3d 340.) On the merits, we reversed in part, concluding the trial court improperly dismissed the unfair competition claims seeking class-wide injunctive relief, and remanded for a determination of whether those claims were appropriate for class treatment. ( Id. at pp. 208, 221-225, 228-231, 145 Cal.Rptr.3d 340.) Our remittitur issued on December 11, 2012.

C.

Rel

The operative seventh amended complaint was filed in August 2013. According to the seventh amended complaint, Angela Rel had not been a subscriber since November 2004, and Cingular later discovered Monica Hodge voluntarily changed her rate plan in mid-2014. Cingular filed a motion to strike the class claims in the seventh amended complaint, arguing Hodge lacked standing. The trial court granted the motion, and Hodge filed a second death knell appeal.

We reversed in Rel, supra, A144349.

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Bluebook (online)
245 Cal. Rptr. 3d 490, 33 Cal. App. 5th 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rel-v-pac-bell-mobile-servs-calctapp5d-2019.