DeSiqueira v. Toyota Motor Ins. Servs., Inc.
| Decision Date | 14 January 2013 |
| Docket Number | B237534 |
| Parties | WEBER DeSIQUEIRA, Plaintiff and Appellant, v. TOYOTA MOTOR INSURANCE SERVICES, INC., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC413643)
APPEAL from a judgment of the Superior Court of Los Angeles County. Luis A. Lavin, Judge. Dismissed.
Hodges and Associates, A Clifton Hodges; Kostas Law Firm, James S. Kostas for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Sascha Henry, Peter S. Hecker, Anna S. McLean, Lai L. Yip for Defendant and Respondent.
Weber DeSiqueira appeals from a trial court order staying his lawsuit and ordering contractual arbitration. The order compelling arbitration is not appealable. Further, it was not the "death knell" of DeSiqueira's case because it is neither impossible nor impracticable for him to proceed with his individual claims. Finally, there are no exceptional circumstances warranting treatment of the appeal as a writ of mandate. Accordingly, we dismiss the appeal for lack of jurisdiction.
DeSiqueira purchased a Toyota that has a new vehicle warranty covering repairs and defects for three years or 36,000 miles, whichever occurs first. He also purchased a "Toyota Extra Care Vehicle Service Agreement" (the Contract), an extended service contract administered by respondent Toyota Motor Insurance Services, Inc. (Toyota). DeSiqueira paid $1,145 for seven years of service or 75,000 miles, whichever occurs first. The warranty and the Contract run concurrently, so long as the warranty is in effect.
The Contract contains an arbitration clause subjecting any claims arising from the Contract to arbitration under the Federal Arbitration Act, including claims in contract, tort, pursuant to statute, regulation, ordinance, or in equity. The Contract prohibits class actions and class arbitrations.
DeSiqueira filed this class action lawsuit in 2009, alleging that the Contract covers the same items as the warranty, in violation of state law. The trial court sustained Toyota's demurrers without leave to amend and gave judgment to Toyota. On appeal, we wrote that DeSiqueira did not state a claim because "It is undisputed that Toyota's service contract covers costs not covered by the manufacturer's warranty." At DeSiqueira's request, we authorized an amendment to allege that Toyota's misrepresentations or false advertising induced him to enter the Contract.
After remittitur issued in 2011, Toyota sent plaintiff a letter demanding arbitration, relying on a recent Supreme Court decision, AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ , which addresses class action waiver clauses. DeSiqueira did not respond to the arbitration demand. Instead, he filed an amended pleading asserting class claims for unfair competition and deceptive representations made in connection with the sale of services. (Bus. & Prof. Code, §§ 17200, 17500; Civ. Code, § 1750, et seq.) DeSiqueira alleges that Toyota's marketing and advertising causes service contract purchasers to think they are receiving seven years/75,000 miles of repair coverage beyond the warranty when in fact they receive only a few years more than the warranty.
Toyota moved to compel arbitration. DeSiqueira asked the trial court to find the arbitration clause unconscionable or unenforceable. The court found that DeSiqueira agreed to arbitrate when he entered the Contract, and the arbitration clause encompasses all of his claims. The court ordered DeSiqueira to submit to arbitration, and stayed his lawsuit pending completion of the arbitration. DeSiqueira appeals.
Toyota challenges appellate jurisdiction because DeSiqueira has appealed from an intermediate order compelling arbitration. Under the "one final judgment" rule, an order compelling arbitration is not appealable. (State Farm Fire & Casualty v. Hardin (1989) 211 Cal.App.3d 501, 506.) An appeal is permissible when judgment is entered following arbitration. (Ibid.; Code Civ. Proc., § 1294, subd. (d).)
DeSiqueira contends that the "death knell" doctrine applies here. He reasons that the trial court effectively terminated his class claims, making that portion of the order immediately appealable. Toyota counters that the death knell doctrine only applies when it is impossible or impracticable for plaintiff's case to proceed as an individual action, and DeSiqueira made no showing that he cannot proceed with individual arbitration.
The death knell doctrine applies when "an order terminates class claims, but individual claims persist." (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 762.) It requires (1) a de facto final judgment for absent class members and (2) circumstances indicating that "any appeal likely would be foreclosed" because no final judgment is aptto be entered on plaintiff's individual claims. (Id. at p. 757-759.) The Supreme Court has "repeatedly reaffirmed that an order that denies class certification or otherwise extinguishes class claims in their entirety is appealable, but only in cases in which individual claims survived." (Id. at pp. 761-762.)
The trial court stayed—but did not dismiss—DeSiqueira's class claims. If the court stays class litigation while ordering the plaintiff to arbitrate, the order is not appealable because it is not tantamount to dismissal and does not terminate the class claims. (Elijahjuan v. Superior Court (2012) 210 Cal.App.4th 15, 19.) Nevertheless, the parties agree that the order in this case amounts to a dismissal DeSiqueira's class claims, leaving only his individual claims.
There remains the question whether the second part of Baycol is satisfied. That question measures the probability that "any appeal likely would be foreclosed" because of a risk that no final judgment will be entered on DeSiqueira's individual claims. The death knell doctrine only applies "when it is unlikely the case will proceed as an individual action."
"Here, [appellant] fails to explain or demonstrate how the trial court's order makes it impossible or impracticable for [him] to proceed with the action at all." (Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1123.) On the contrary, DeSiqueira suggests that his possible recovery of $1,145 "coupled with the right to recover attorney's fees and costs," increases the likelihood he will proceed with...
To continue reading
Request your trial