General Motors Corp. v. Superior Court

• Citation: 244 Cal.Rptr. 776,199 Cal.App.3d 247
• Decision Date: 04 March 1988
• Docket Number: A037907,Nos. A037448,s. A037448
• Court: California Court of Appeals
• Parties: GENERAL MOTORS CORPORATION, Petitioner, v. SUPERIOR COURT of the State of California, County of Alameda, Respondent. John A. JUNGLAS and Roy W. Moyers, Real Parties in Interest. John A. JUNGLAS and Roy W. Moyers, Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents.

Page 776

244 Cal.Rptr. 776

199 Cal.App.3d 247

GENERAL MOTORS CORPORATION, Petitioner, v. SUPERIOR COURT of the State of California, County of Alameda, Respondent.

John A. JUNGLAS and Roy W. Moyers, Real Parties in Interest.

John A. JUNGLAS and Roy W. Moyers, Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents.

Nos. A037448, A037907.

Court of Appeal, First District, Division 2, California.

March 4, 1988.

Certified for Partial Publication ^*

Review Denied May 18, 1988.

McCutchen, Doyle, Brown & Enersen, J. Thomas Rosch, James B. Lewis, San Francisco, Jones, Day Reavis & Pogue, Patrick F. McCartan, Cleveland, Ohio, for petitioner/defendants and respondents General Motors Corp.

Charles I. Eisner, Robert A. Ballard, Boornazian, Jensen & Garthe, Oakland, for defendant Lew Doty Cadillac.

Ned N. Isokawa, Crosby, Heafey, Roach & May, Oakland, for defendant Rector Cadillac Co.

Ernest M. Thayer, Oakland, for real parties in interest and plaintiffs and appellants.

BENSON, Associate Justice.

In this action we are asked to determine whether the trial court abused its discretion in certifying a class of all California original purchasers of 1981 Cadillacs equipped with V8-6-4 engines. General Motors Corporation seeks review of the order certifying the class by petition for writ of mandate and/or prohibition. We issued an alternate writ of mandate and stayed all proceedings in the trial court. We are also asked to consider an appeal by the named plaintiffs and real parties in interest, John A. Junglas and Roy W. Moyers, from the same certification order. The appeal urges that the trial court abused its discretion by refusing to certify a nationwide class and by refusing to certify a class action against the two Cadillac dealers from whom they purchased 1981 Cadillacs.

We ordered the two matters consolidated. For the reasons set forth below we deny the petition for writ of mandate and/or prohibition and dismiss the appeal.

Junglas and Moyer each bought a new 1981 Cadillac automobile equipped with a V8-6-4 engine from General Motors dealers in California. The dealers are Lew Doty Cadillac and Rector Cadillac Company. Both buyers experienced difficulties with the automobiles. On April 16, 1982, they filed a class action against General Motors and the two dealers on behalf of themselves and all purchasers of 1981 Cadillacs equipped with V8-6-4 engines. The core allegations of their action were that the 1981 Cadillacs equipped with V8-6-4 engines which were designed, manufactured, distributed and marketed by General Motors were dangerous, defective and unsafe in that the engines provided sudden and unexpected surges, delays and cessations of power; that the automobiles were defective from the time they were manufactured; and that General Motors knew of the defects but suppressed the information and failed to warn plaintiffs.

On August 8, 1986, the named plaintiffs filed a motion for an order for class certification seeking certification of a national class of all purchasers of 1981 Cadillac V8-6-4 motor vehicles against General Motors and the two California dealers. ¹ The motion was continued to September 22, 1986 at General Motor's request and upon their agreement to extend the five-year limitation statute by 28 days. The motion was in fact heard by Judge McKibben on October 9, 1986. The matter was submitted and, on October 15, 1986, the court issued a minute order certifying the class on a statewide basis against General Motors only. The minute order provided plaintiffs' counsel was to prepare the order. ²

I ^**

II Appeal from Class Certification Order

We turn now to plaintiffs' appeal from the order certifying the class. Plaintiffs claim it was error to grant class certification on a statewide basis only and against General Motors only. Plaintiffs have filed, and this court has denied, a petition for writ of mandate which raised the identical issues. (A037707) Plaintiffs admit this is a precautionary appeal. They claim there is a split in authority as to when such an appeal may be taken.

Plaintiffs cite Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 464-466, 189 Cal.Rptr. 470 and Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 906-908, 142 Cal.Rptr. 527 for the proposition that an order denying class certification is an appealable order. They cite as contrary authority Rosack v. Volvo of America Corp. (1982) 131 Cal.App.3d 741, 182 Cal.Rptr. 800, cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 482, and Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 142 Cal.Rptr. 325. General Motors and plaintiffs agree that there is a split of authority and further agree that Rosack represents the better view.

Guenter, decided by division three of this court, and Morrissey, decided by division one of this court, both involved appeals after final judgment challenging orders of the trial court denying class certification and dismissing the class allegations. Both cases, relying on the holding in Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 699, 63 Cal.Rptr. 724, 433 P.2d 732, that the order was appealable when made, held the appeals untimely. In Hogya the court apparently assumed without deciding that an immediate appeal from the order dismissing the suit as a class action was not available. That court found that under the facts of the case an appeal after final judgment was not a practical remedy and that appellate intervention by way of writ of mandate was warranted because the issue raised was substantial and one of first impression. (Hogya v. Superior Court, supra, 75 Cal.App.3d at pp. 130-132, 142 Cal.Rptr. 325.) In Rosack, the court determined an order denying class certification and dismissing the class action was not an appealable order and that "[a] party seeking an earlier appellate review of an order on class certification must rely on a writ of mandate as provided in Code of Civil Procedure sections 1085 and 1086." ( Rosack v. Volvo of America Corp., supra, 131 Cal.App.3d at p. 749, 182 Cal.Rptr. 800.)

We determine plaintiffs' appeal from this intermediate order certifying a statewide class action against General Motors violates the "final judgment rule" set forth in Code of Civil Procedure section 904.1. The order certifying the class defined the class members as "each entity that was an original purchaser of a 1981 Cadillac V8-6-4 automobile within the State of California." The class numbered 21,000 entities. The class action was certified as to all causes of action against General Motors stated in the first amended complaint.

This order does not have what has come to be known as the "death knell" effect of making further proceedings in the action impractical because of denial of class action status. In Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 469-470, 98 S.Ct. 2454, 2458-59, 57 L.Ed.2d 351, the Court stated: "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." Without challenging the assumption, the Court held class certification orders were not independently appealable prior to judgment. Our Supreme Court, however, has held that where an order has the "death knell" effect of making further proceedings in the action impractical, the order is appealable. In Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, the court held that an...