No. A130467.

KENNETH DON NELSON, Plaintiff and Appellant, v. ALASKA AIRLINES, INC., Defendant and Respondent.

Court of Appeals of California, First District, Division Two.

Filed November 30, 2011.



Plaintiff Kenneth Don Nelson appeals from an order sustaining defendant Alaska Airlines's demurrer to his first amended complaint in a putative class action dispute regarding defendant's right to charge certain passengers a "Mexican tourism tax." Plaintiff claims the court erred in ruling that his claims are preempted by federal law, discounting his construction of the subject contract, and denying his request to pursue discovery. We conclude we do not have jurisdiction to consider this appeal in the absence of a final judgment. Therefore, we dismiss the appeal without prejudice.


In June 2008, plaintiff filed a class action complaint with two causes of action, alleging breach of written contracts and money had and received in San Francisco County Superior Court. Defendant demurred to both causes of action and the trial court stayed discovery. The court subsequently sustained defendant's demurrer on the ground that the state law causes of action were preempted by the federal Airline Deregulation Act and granted plaintiff leave to amend.

Plaintiff filed a first amended complaint and requested the stay on discovery be lifted. Defendant again demurred, which the trial court again sustained, with leave to amend, on the same federal preemption ground; the court also denied plaintiff's request that the stay of discovery be lifted. Defendant's demurrer referred to plaintiff Kenneth Don Nelson only. At the demurrer hearing, plaintiff expressed doubt about filing a second amended complaint. The court stated it would enter judgment on its order sustaining defendant's demurrer in the event that plaintiff chose not to file a second amended complaint. Its subsequent order sustaining the demurrer referred to plaintiff Kenneth Don Nelson only.

At a subsequent case management conference, the court and the parties discussed that plaintiff had decided not to file a second amended complaint, and defendant had submitted a proposed judgment to the court. The court declined to issue the proposed judgment, stating:

"And I pointed out to you off the record that the proposed form of judgment that was sent to me by [defendant's counsel] does not include consideration of what happens to the inchoate class. The demurrer was obviously a demurrer directed to the named plaintiff and the only purported class representative, and so counsel, I think you have indicated that you want to get together in the coming days and consider your respective views on where, if anywhere, we should go from here with respect to the purported class, and to that end we've set another case management conference . . . ."

Apparently, the parties could not agree about what to do about the "inchoate class." Plaintiff filed a notice of appeal based on the "death knell" doctrine in class action law. A few days later, defendant moved to dismiss the class allegations. Plaintiff objected to defendant's proposed order granting defendant's motion and defendant's proposed judgment. He argued the court's order sustaining the demurrer had "disposed of all issues in this case" and had the effect of dismissing the entire class action suit, and his filing of a notice of appeal divested the court of jurisdiction to rule on defendant's motion pursuant to the "death knell" doctrine.

The court subsequently ruled that, pursuant to Code of Civil Procedure section 916, subdivision (a), plaintiff's filing of his notice of appeal divested the court of jurisdiction to rule on defendant's motion "whether or not this court's order sustaining defendant's demurrer is appealable." The court did not rule on defendant's motion, the class allegations were not dismissed, the case was put off calendar pending this appeal, and a final judgment was not entered.

The parties briefed the issues raised by plaintiff's appeal and, in doing so, briefly addressed whether this court had jurisdiction to consider the appeal. By our order filed on September 19, 2011, we requested supplemental briefing on this jurisdiction issue, given that the trial court neither entered any final judgment nor resolved the scope and content of such a judgment, including regarding the "inchoate class." We also asked the parties to address who were the parties to the appeal because, although the notice of appeal identified appellant Nelson as the individual plaintiff only, Nelson's reply brief asserts that both "Plaintiff and the Class" filed the notice of appeal and joined defendant in urging this court to consider the appeal. We also requested briefing regarding whether the order appealed from was a dismissal of both plaintiff's causes of action and his class allegations.

Both parties filed supplemental briefs.


On our own motion, we dismiss this appeal without prejudice because we do not have jurisdiction to consider plaintiff's1 appeal in the absence of a final judgment.

A. Appellate Jurisdiction

"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) An order sustaining a defendant's demurrer without leave to amend is not an appealable order. (Code Civ. Proc., § 904.1, subd. (a); I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331.) "`A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1.'" (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1395.)

"Under the one final judgment rule, `"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 (Baycol).) "`"The theory [behind the rule] is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case."'" (Ibid.) Our Supreme Court has stated that, "[g]iven the one final judgment rule's deep common law and statutory roots and the substantial policy considerations underlying it, we are reluctant to depart from its principles and endorse broad exceptions that might entail multiple appeals absent compelling justification." (Id. at p. 757.) Thus, "`exceptions to the one final judgment rule should not be allowed unless clearly mandated.'" (Ibid.)

Nonetheless, a non-appealable order may be construed as a judgment for purposes of an appeal "when, like a formal judgment it disposes of the action and precludes further proceedings." (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093, 1098). On occasion, appellate courts have reviewed orders, such as those sustaining a demurrer without leave to amend, "based upon justifications such as the avoidance of delay, the interests of justice, and the apparent intent of the trial court to have a formal judgment filed. [Citation.] And when the trial court has sustained a demurrer to all of the complaint's causes of action, appellate courts may deem the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment." (Sisemore v. Master Financial, Inc., supra, 151 Cal.App.4th at p. 1396.)

B. The "Death Knell" Doctrine

In his opening appellate brief, plaintiff bases the appealability of his claims on the "death knell" doctrine, citing Baycol, supra, 51 Cal.4th 751, a case issued after plaintiff filed his notice of appeal. In his supplemental brief, plaintiff continues to argue that the "death knell" doctrine applies. This cannot be maintained upon a review of Baycol's discussion and holding.

The "death knell" doctrine was adopted by our Supreme Court in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695 (Daar) as an exception to the final judgment rule. The doctrine allows a party to appeal from orders dismissing class action claims even though individual claims survive such orders. (Id. at pp. 698-699.)

In Baycol, the Supreme Court specifically considered whether or not to extend the "death knell" doctrine to orders that simultaneously terminate both class and individual claims. (Baycol, supra, 51 Cal.4th at pp. 754, 760.) The court held that "the doctrine renders appealable only those orders that effectively terminate class claims but permit individual claims to continue. When instead an order terminates both class and individual claims, there is no need to apply any special exception to the usual one final judgment rule to ensure appellate review of class claims." (Id. at p. 754, italics added.) The court concluded that "the preservation of individual claims is an essential prerequisite to application of the death knell doctrine." (Ibid.)

Plaintiff argues that "under a fair construction of Baycol and the holding preceding Baycol such as Daar . . ., an appeal is proper. The strong policy of the State of California announced in those cases is that decisions demolishing class actions are not immune from review. In fact, the present situation is an unanticipated variant on the problems solved in other situations by the Baycol and Daar `death knell' doctrine." His argument is unpersuasive for several reasons.

First, it ignores our Supreme Court's mandate that the doctrine applies only when individual claims are preserved. (Baycol, supra, 51 Cal.4th at p. 754.) Here, it is undisputed that the individual claims were not preserved.

Second, plaintiff bases his argument that a variant of the "death knell" doctrine applies on the inaccurate assertion that the trial court's order sustaining defendant's demurrer disposed of the class claims. This is incorrect. Defendant's demurrer referred only to plaintiff Kenneth Don Nelson. The court's order sustaining the demurrer refers to "plaintiff" only and does not refer to the class action allegations. The court subsequently indicated that it sustained the demurrer regarding the causes of actions of the individual plaintiff and sole named class representative only, and did not made a determination about the "inchoate class." The court indicated it was premature to enter a final judgment without resolving the matter. It never did and the parties could not reach an agreement prior to plaintiff's filing of his notice of appeal, which, the court ruled, divested the court of jurisdiction to act further regardless of whether its order sustaining defendant's demurrer was appealable or not. Thus, the disposition of the class allegations remains undecided. Plantiiff fails to establish that the "death knell" doctrine as clarified in Baycol applies to these circumstances.

Third, the rationale underlying Baycol does not apply here. The Baycol court was concerned that an order sustaining a demurrer to class claims would amount "to a de facto final judgment for absent plaintiffs, under circumstances where . . . the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered." (Baycol, supra, 51 Cal.4th at p. 759.) Here, the record indicates that the court was moving towards a prompt resolution of what to do regarding the class allegations when plaintiff filed his notice of appeal, divesting the court of jurisdiction to further consider the issue. Plaintiff's filing delayed, rather than furthered, that resolution.

Fourth, plaintiff's appeal is premature because, without the lower court's resolution of what to do regarding the class allegations, the nature of the judgment being challenged on appeal is uncertain. Indeed, we do not decide by this opinion whether or not plaintiff could appeal pursuant to Baycol without entry of a final judgment in the action if the court somehow were to allow the action to proceed regarding the class allegations.

Plaintiff also argues that he had no choice but to file his appeal when he did because the appellate court's ruling in Baycol was still pending before the California Supreme Court and, given that ruling, "[p]laintiff and the [c]lass ran the unacceptable risk that the Supreme Court would affirm at some time in the future the decision of the Court of Appeal . . . and lose all appellate rights." This argument does not withstand scrutiny either. In Baycol, the trial court sustained the defendant's demurrer without leave to amend in April, notice of entry of judgment was served in October of that same year, and the plaintiff filed his notice of appeal two months later in December. (Baycol, supra, 51 Cal.4th at p. 755.) The appellate court reversed dismissal of one of the plaintiff's individual claims, but declined to consider the merits of the appeal of the class claims dismissal by the trial court, dismissing them instead. (Ibid.) Relying on cases that have held "death knell" orders terminating class claims are immediately appealable, the appellate court ruled that the appeal of these class claims via the December notice of appeal, almost eight months after the court's entry of its "death knell" order, was untimely. (Ibid.) This is not relevant to the present case, however, because the court's order sustaining defendant's demurrer did not dismiss the class allegations, and no final judgment was subsequently entered. Under such circumstances, neither the individual plaintiff nor the class was in danger of losing any appellate claim prior to the entry of judgment, even under the reasoning of the appellate court in Baycol.

C. Liberal Construction of the Notice of Appeal

In their initial briefing, both defendant and plaintiff ask us to "liberally construe [the] notice of appeal from the order sustaining the demurrer . . . to be from the subsequent judgment of dismissal," based on Groves v. Peterson (2002) 100 Cal.App.4th 659, 666, footnote 2, for the sake of judicial efficiency. Plaintiff also argues that we "treat the order as appealable, despite the absence of a judgment of dismissal" by "`deem[ing] the order to incorporate a judgment of dismissal, since all that is left to make the order appealable is the formality of the entry of a dismissal order or judgment.'" (Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1.)

In its supplemental brief, defendant, acknowledging that the "death knell" doctrine asserted by plaintiff does not apply here, "submits that this court can and should treat the Order appealed from as including dismissal and Judgment, so as to promote efficiency and preserve judicial resources." It identifies several cases in which courts chose to do so. (See Sisemore v. Master Financial Inc., supra, 151 Cal.App.4th 1386; Hinman v. Department of Personnel Admin. (1985) 167 Cal.App.3d 516, 520; Kruss v. Booth (2010) 185 Cal.App.4th 699, 712; Melton v. Boustred, supra, 183 Cal.App.4th 521.) It also relies on the mandate contained in California Rules of Court, rule 8.100(a)(2), which provides that "[t]he notice of appeal must be liberally construed," and asks in the alternative, as does plaintiff, that we treat the appeal as a petition for extraordinary writ. Defendant further argues, without citation to authority, that we should consider the appeal to prevent unnecessary and duplicative pleading and consumption of time.

All of these arguments are unpersuasive. They ignore that defendant's demurrer, and the court's order sustaining defendant's demurrer, made no mention of the class allegations; the court subsequently made clear its view that it was premature to issue a final judgment without resolving how to deal with the "inchoate class"; and nothing further was resolved prior to plaintiff filing his notice of appeal. None of the cases cited dealt with such circumstances. We conclude that the court's order sustaining defendant's demurrer did not dispose of all issues and the terms of any final judgment remain uncertain; therefore, its entry was not a mere formality. We cannot liberally construe the notice of appeal in order to obtain jurisdiction in the face of this incompleteness and uncertainty, since we have neither an appealable order nor an appealable judgment to review. (Griset v. Fair Political Practices Com., supra, 25 Cal.4th at p. 696.)

D. Extraordinary Writ

Finally, both parties suggest that, if we find plaintiff prematurely filed his appeal, we treat his filing as a petition for extraordinary writ and decide the issues raised. "`A petition to treat a nonappealable order as a writ should only be granted under extraordinary circumstances, "`compelling enough to indicate the propriety of a petition for writ . . . in the first instance . . . .'" (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1367.) Plaintiff has not satisfied these criteria.


The appeal is dismissed without prejudice.

Kline, P.J. and Richman, J., concurs.


1. As we have indicated, we asked for supplemental briefing regarding who were the parties appealing and whether we had jurisdiction to address plaintiff's class allegations. Because we conclude the appeal must be dismissed for lack of appellate jurisdiction, we do not further address these issues. We refer to "plaintiff" Kenneth Don Nelson as the appellant consistent with the notice of appeal.


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