Filed 5/16/16 Cubias v. Carl Karcher Enterprises CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


JOSE CUBIAS,                                                                 2d Civil No. B262959
                                                                          (Super. Ct. No. CORD 4537)
     Plaintiff and Appellant,                                               (Santa Barbara County)

v.

CARL KARCHER ENTERPRISES, INC.,
et al.,

     Defendants and Respondents.


                   Jose Cubias, individually, and on behalf of other salaried general managers
employed by Carl Karcher Enterprises, Inc. and CKE Restaurants, Inc. (collectively
CKE), appeals an order denying class certification of one proposed subclass and an order
decertifying another subclass. We dismiss the appeal.
                                                  BACKGROUND
                   CKE operates Carl’s and Carl’s Jr. restaurants. This is a judicial
coordination proceeding. In a consolidated class action complaint, Cubias, Ramona
Macias, and Belinda Pinto1 assert wage and hour claims against CKE.
                   Cubias alleges that between 2005 and 2009, CKE’s general managers were
misclassified as exempt from overtime pay (the misclassification claims). (Lab. Code,
§§ 510, 515.) Cubias also alleges CKE encouraged general managers to work on

1
    Three plaintiffs brought the complaint, but only Cubias appeals.
vacation days to gain a $100 increase in their labor budgets and to deduct vacation pay
for scheduled vacation days on which they actually worked (the vacation pay claims).
Cubias sought class certification. He also sought civil penalties under the Private
Attorneys General Act (PAGA) (Lab. Code, § 2699 et seq.) on behalf of himself and
other salaried general managers.
              The trial court denied certification of the misclassification claims, finding
that misclassification could not be determined based on common factual or legal issues.
The court initially granted class certification of the vacation pay claims, but decertified
that class one year later when it became unmanageable. Cubias’s PAGA claims survive
the adverse certification orders.
                                       DISCUSSION
                            "Death Knell" Doctrine Inapplicable
              The certification orders are nonappealable interlocutory orders because they
do not terminate Cubias’s representative PAGA claims. Generally, an appeal may be
taken only from final judgment in the entire action. (In re Baycol Cases I & II (2011) 51
Cal.4th 751, 756 (Baycol).) The death knell doctrine is an exception. (Id. at p. 757.) It
allows immediate appeal of an order that entirely terminates class claims while allowing
individual claims to proceed. (Id. at pp. 757, 759.) Because such an order “effectively
[rings] the death knell for the class claims,” it is “in essence a final judgment on those
claims.” (Id. at p. 757.)
              The death knell doctrine is a tightly defined and narrow concept. (Baycol,
supra, 51 Cal.4th at p. 760.) It applies only when (1) the order amounts to a de facto
final judgment for absent plaintiffs, and (2) “viable but perhaps de minimis individual
plaintiff claims” persist, creating a risk no formal judgment will ever be entered. (Id. at
p. 759.) Such an order is effectively immune from review because “‘without the
incentive of a possible group recovery the individual plaintiff may find it economically
imprudent to pursue his [or her] lawsuit to a final judgment and then seek appellate
review of an adverse class determination.’” (Id. at p. 758.)



                                              2
             Here, Cubias has a financial incentive to pursue his surviving individual
and representative PAGA claims to final judgment. (Munoz v. Chipotle Mexican Grill,
Inc. (2015) 238 Cal.App.4th 291, 311.) He may recover 25 percent of $100 for each
aggrieved employee per pay period for the initial violation and $200 for each aggrieved
employee per pay period for each subsequent violation. (Lab. Code, § 2699, subds.
(f)(2), (i).) He alleges violations for over 600 employees over a four-year timeframe. He
may be eligible to recover costs and attorney fees under PAGA. (Id., subd. (g)(1).)
                                     DISPOSITION
             The appeal is dismissed. The parties shall bear their own costs on appeal.
             NOT TO BE PUBLISHED.




                                         GILBERT, P. J.


We concur:



             YEGAN, J.



             PERREN, J.




                                            3
                              Thomas P. Anderle, Judge

                       Superior Court County of Santa Barbara

                         ______________________________


             The Graves Firm, Allen Graves, Jacqueline Treu for Plaintiff and
Appellant.
             Littler Mendelson, P.C., Fermin H. Llaguno, D. Chad Anderton for
Defendants and Respondents.




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