Class Rep Who Never Had Standing Cannot Use Discovery To Find Substitute Who Does
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On Calendar Today: Alan v. American Honda Motor

The Supreme Court is again in session this morning and another case potentially of interest to wage and hour attorneys is set for oral argument on the 9:00 a.m. calendar: Alan v. American Honda Motor Co. Inc., S137238, B165756; 131 Cal.App.4th 886; Superior Court of Los Angeles County; BC195461. The order granting review framed the issue as follows:

Petition for review after the Court of Appeal dismissed an appeal in a civil action. The court limited review to the following issue: Did the Statement of Decision and Minute Order dated January 2, 2003, trigger the 60-day period within which to notice an appeal under California Rules of Court, rule 8.104 (formerly rule 2(a)(1))?

The Statement of Decision and Minute Order pertained to the denial of a class certification motion, which makes the case of some interest to wage and hour class action attorneys. The relevant facts are as follows:

On January 2, 2003, the trial court clerk mailed to plaintiff a file-stamped copy of an appealable order and a minute order showing the date it was mailed, thus triggering the 60-day time period set forth in Cal. R. Ct. 2(a)(1). Plaintiff filed his notice of appeal on March 6, 2003, which was 63 days after the court clerk mailed to the parties the appealable order. The Court of Appeal held that plaintiff's notice of appeal was not timely filed, rejecting plaintiff's argument that the trial court's ruling did not comply with Rule 2 because it consisted of two documents as opposed to one. The Court of Appeal found that Rule 2(a)(1) (now Rule 8.104) expressly contemplated the practice of a clerk mailing two documents, a file-stamped copy of the appealable order or judgment and a document showing the date it was mailed, but in any event, the minute order, which showed the date it was mailed, expressly incorporated the statement of decision and stated that the statement of decision constituted the trial court's ruling. The appeal was dismissed. That dismissal, on those grounds, is under review.

The plaintiff also argued that the court order denying class certification was only a partial denial of certification, and therefore not a "death knell" and not immediately appealable, because the plaintiff also asserted pre-Proposition 64 unfair competition claims. Thus, plaintiff filed a cautionary appeal, asking that the court exercise its discretion to consider the premature appeal as a petition for a writ of mandate. This argument was also rejected and apparently is not subject to debate this morning.


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