Filed 11/8/19
                            CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION ONE


 EMIELOU WILLIAMS,
          Plaintiff and Appellant,
                                                     A155479
 v.
 IMPAX LABORATORIES, INC.,                           (Alameda County
                                                     Super. Ct. No. RG17870167)
          Defendant and Respondent.


        Plaintiff Emielou Williams filed a class complaint against her former employer,
Impax Laboratories, Inc., alleging violations of Labor Code provisions governing wages
and hours. The trial court granted Impax’s motion to strike the class allegations, ruling
that Williams was not an adequate class representative. The court granted her leave to
amend the complaint to add another named plaintiff, but instead of doing so she filed an
amended complaint reiterating the stricken class allegations. Relying on its prior order,
the court again struck those allegations.
        Williams now appeals from the second order, claiming the trial court erred by
concluding she is not an adequate class representative. She also claims the order must be
reversed because the court thwarted her from pursuing discovery of the class list, which
she needed to name another class representative. We agree with Impax, however, that the
order is not appealable under the death knell doctrine. This doctrine authorizes an
interlocutory appeal of the first, but only the first, order in a case that extinguishes all of a
plaintiff’s class claims. As a result, we do not address the merits of Williams’s
contentions and instead dismiss the appeal.




                                               1
                                         I.
                               FACTUAL AND PROCEDURAL
                                    BACKGROUND
       Williams stopped working for Impax in December 2013. Almost four years later,
in August 2017, she filed her original complaint, which alleged one cause of action under
the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.). This cause of
action identified nine types of unlawful business practices in which Impax allegedly
engaged, including failing to pay overtime wages, provide meal and rest periods, and pay
minimum wages. Williams brought the complaint on behalf of herself and a similarly
situated class, proposed to consist of all individuals employed by Impax at any time
during the previous four years.
       Impax filed a motion to strike portions of the complaint, including the class
allegations. It argued that Williams was not an adequate class representative because the
statute of limitations on her personal claims had already run and she therefore could not
“assert the types of claims reasonably expected to be raised by other members of the
class”—direct claims for penalties under the Labor Code, including under the Private
Attorneys General Act (PAGA; Lab. Code, § 2699). Williams responded that the
adequacy issue should not be resolved at the pleading stage and that her litigation would
not waive other class members’ claims for penalties.
       In a December 2017 order, the trial court struck the class allegations, agreeing
with Impax that “[i]n light of her inability to pursue all remedies otherwise available to
the putative class, [Williams] cannot be a suitable class representative.” After noting
Williams’s suggestion that she could “ ‘add[] an additional class representative with
standing’ ” to pursue the direct Labor Code claims, the court gave her “45 days leave to
amend” and stated, “In the court’s view, in order for this case to emerge from the
pleading stage as a putative class action, such an addition must happen now, rather than
later.” Separately, the court denied Williams’s request for permission to conduct
discovery to locate other class representatives, determining that the “request [was] not
properly before the court in the context of these challenges to the pleadings.”



                                             2
       Williams neither sought review of the December 2017 order nor amended her
complaint to name a new plaintiff. Instead, she filed a first amended complaint.1 As she
acknowledges, the first amended complaint essentially re-alleged the class contentions
from her original complaint, expanding the paragraph involving her adequacy as a class
representative to respond to points raised by Impax and the December 2017 order.
       Impax filed another motion to strike, contending that by adding back in class
allegations without a new plaintiff, Williams was “improperly attempt[ing] to dispute [the
December 2017 order’s] finding that she is not an adequate class representative.”
Williams responded that the December 2017 order was “impossible” to comply with, as
she had only 45 days to amend to add a PAGA claim even though that statute requires an
employee to wait 65 days after giving notice to the Labor and Workforce Development
Agency before bringing suit. (See Lab. Code, § 2699.3.) She also complained that she
sought discovery from Impax to locate another plaintiff shortly after filing her original
complaint, but Impax refused to comply. Although she had asked the trial court to
schedule an informal discovery conference on the issue, it had not yet done so, preventing
her from filing a motion to compel under the court’s local discovery rules.
       On September 21, 2018, the trial court granted Impax’s motion to strike the class
allegations, stating that the December 2017 order “found that [Williams] cannot be a
suitable class representative.” The court explained that the earlier order “reasoned that
[Williams’s] complaint would have her asserting a UCL claim on behalf of a putative
class. [Her] UCL claim would be limited to obtaining the UCL remedies but the claim
preclusion effect of that claim would likely be to preclude any of the absent class
members who had claims within the Labor Code statute of limitations from pursuing
Labor Code claims that were part of the ‘unlawful’ part of the UCL claim. The court
determined on the pleadings that this [preclusive effect] would not be in the interests of


       1
       In January 2018, Williams inadvertently filed the amended complaint under the
wrong case number. The trial court granted her motion for relief under Code of Civil
Procedure section 473 and permitted her to re-file the complaint with a corrected case
number, which she did in March of that year.

                                             3
the absent class members and therefore that [Williams] could not be an adequate class
representative.” The court directed Williams to file a second amended complaint by
October 5, refusing to “extend the time for filing [it] to permit [her] to locate a new
plaintiff who might be an adequate class representative.”
       The trial court also addressed the discovery issue as follows: “There is no motion
before the court to compel or preclude discovery of the names of similarly situated
employees. That said, the scope of discovery is determined by the scope of the
complaint, and the Second Amended Complaint will not have class allegations. Were
[Williams] to seek the names of similarly situated employees, then the court would
review any motion and consider relevance to the claims, burden on the defendant, and the
privacy concerns of the similarly situated employees.”
       On September 28, 2018, Williams filed a notice of appeal. The notice of appeal
identified the order appealed from as entered on September 21, 2018, and described it as
“[a]n order granting a motion to strike class allegations, appealable under the ‘death
knell’ doctrine.”
                                             II.
                                         DISCUSSION
       Impax contends that we lack jurisdiction because only the December 2017 order,
not the September 2018 order, was appealable under the death knell doctrine. We agree.
       The death knell doctrine is a “ ‘tightly defined and narrow’ ” exception to the one-
final-judgment rule, which generally precludes piecemeal litigation through appeals from
orders that dispose of less than an entire action. (In re Baycol Cases I & II (2011)
51 Cal.4th 751, 760 (Baycol).) Under this exception, an order is appealable when “it
effectively terminates the entire action as to [a] class, in legal effect being ‘tantamount to
a dismissal of the action as to all members of the class other than plaintiff.’ ” (Stephen v.
Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 811, quoting Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 699.) Thus, an order determining that a plaintiff cannot “maintain
his [or her] claims as a class action but [can] seek individual relief” is immediately
appealable. (Baycol, at pp. 757, 760.) Because death knell orders are directly appealable,


                                              4
“a plaintiff who fails to appeal from one loses forever the right to attack it. The order
becomes final and binding.” (Stephen, at p. 811.)
       The rationale for the death knell doctrine is that these rulings amount to final
judgments as to the class claims and would be “effectively immunized . . . from appellate
review” if no immediate appeal were permitted. (Baycol, supra, 51 Cal.4th at pp. 757–
758.) This is 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.)
       To qualify as appealable under the death knell doctrine, an order must
“(1) amount[] to a de facto final judgment for absent plaintiffs, under circumstances
where (2) 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.) Among the orders that generally qualify are “[a] trial court’s decision to
sustain a demurrer to class allegations without leave to amend, deny a motion for class
certification, or grant a motion to decertify a class.” (Naranjo v. Spectrum Security
Services, Inc. (2019) 40 Cal.App.5th 444, 478.) What ultimately matters, however, is
“not the form of the order or judgment but its impact.” (Baycol, at p. 757.)
       According to Impax, the December 2017 order was appealable under the death
knell doctrine, but the September 2018 order was not. It argues that we therefore lack
jurisdiction to review the striking of the class allegations, whether we consider this an
untimely appeal from the earlier order or a timely appeal from the later, non-appealable
order. Williams responds that the December 2017 order was not appealable under the
death knell doctrine because she was given leave to amend the class allegations, and it
was not until the trial court definitively signaled in the September 2018 order that “the




                                              5
Second Amended Complaint will not have class allegations” that the class claims were
“demolished.”2 Impax has the better argument.
       Alch v. Superior Court (2004) 122 Cal.App.4th 339 (Alch) is instructive. There,
television writers brought class action lawsuits against numerous defendants, including
talent agencies, alleging age discrimination. (Id. at p. 350.) Among several other issues,
Alch addressed the appealability of an order that sustained the talent agencies’ demurrers
to class claims under the Fair Employment and Housing Act (FEHA) and Unruh Civil
Rights Act (Unruh Act). (Id. at pp. 355–357, 360.) The FEHA claims were dismissed
with prejudice, but the Unruh Act claims were not. (Id. at pp. 356–357.) Specifically,
while the trial court concluded that the Unruh Act “does not reach employment
discrimination claims, and the complaints ‘[did] not allege sales transactions of the sort
that qualify for’ ” that statute’s protection, it granted plaintiffs leave to amend to allege
business transactions that the Unruh Act did cover. (Ibid.) The trial court also left open
the possibility that the writers could plead class claims under the UCL. (Id. at p. 360.)
Nonetheless, “[t]he writers chose not to replead the Unruh Civil Rights Act claims, and
likewise chose not to try to plead class claims under the UCL, instead amending their
complaints to state only representative claims under the UCL.” (Ibid., fn. omitted.)
       The writers filed an immediate appeal of the ruling sustaining the demurrers. The
talent agencies argued that the appellate court lacked jurisdiction because “it was not the
trial court’s order that extinguished their class claims; instead it was the writers’ own
choice [not to amend their complaint] that ‘rang the “death knell” for their class
claims.’ ” (Alch, supra, 122 Cal.App.4th at p. 360.) The Second District Court of
Appeal disagreed and concluded it had jurisdiction under the death knell doctrine. (Ibid.)
The decision explained that the determinative issue is whether any “viable class claim



       2
         Williams also contends that we should reject Impax’s argument on judicial
estoppel grounds, since Impax took the position below that the December 2017 order was
not appealable under the death knell doctrine. Judicial estoppel does not apply here, as a
court’s fundamental jurisdiction “ ‘cannot be conferred by waiver, consent, or
estoppel.’ ” (AP-Colton LLC v. Ohaeri (2015) 240 Cal.App.4th 500, 507.)

                                               6
remains pending in the trial court” after the challenged order. (Ibid.) It further explained
that “the legal effect of the trial court’s order was that no class claims remained, absent
some further action by the writers, who chose not to attempt to plead sales transactions
under the Unruh Civil Rights Act or class claims under the UCL. In short, the trial
court’s order disposed of all the class claims plaintiffs wanted to bring, allowing them
only to try to plead different class claims which, as it happens, they did not want to
bring.” (Id. at p. 361.) Alch refused to “depriv[e] the writers of a death knell appeal in
circumstances where all the class claims they choose to assert have been eliminated by
the [challenged] order,” as “no principle of law requires plaintiffs to attempt to replead
claims or to assert additional class claims that might or might not be available.” (Ibid.)
Thus, Alch teaches that an order dismissing class allegations, even if entered with leave to
amend, still sounds the death knell for the class claims. (Accord Miranda v. Anderson
Enterprises, Inc. (2015) 241 Cal.App.4th 196, 202 [rejecting argument that “the death
knell doctrine applies only when the class claims are terminated with prejudice”].)
       Williams argues that Alch is distinguishable because “the class claims that the
[Alch] plaintiffs sought to bring were denied without leave to amend.” She reasons that
the writers were given leave to amend the Unruh Act class claims “to allege a different
type of claim” based on business transactions, but they were not given leave to amend
these claims in a way that would preserve their challenges to discriminatory employment
practices, meaning that the class claims the writers chose to bring were, indeed,
terminated by the trial court’s order. Williams claims that “[h]ere, in comparison, the
trial court initially did not demolish any class claim that [she] brought—it instead gave
[her] 45 days to add a class representative to bring additional claims.”
       Williams’s argument mischaracterizes the effect of the December 2017 order.
That order struck the class allegations, meaning that they “had already been removed
from the case,” and Williams was thus “the sole plaintiff in an individual action” at that
point. (Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160, 1168–1169.)
As Safaie illustrates, the possibility that dismissed or stricken class allegations might be
revived does not change the status of a death knell order. In Safaie, the trial court


                                              7
decertified the class, an order the plaintiff unsuccessfully appealed. (Id. at pp. 1165–
1166.) On remand, the plaintiff unsuccessfully moved to recertify the class based on an
intervening change in the law. (Id. at pp. 1166–1167.) The Fourth District Court of
Appeal concluded that the order denying recertification was not appealable, as its effect
“was not to dismiss the actions as to the members of the class . . . but . . . to deny [the
plaintiff’s] request to insert class allegations back into his individual action. A denial of
this request did not serve as a death knell to [the plaintiff’s] individual action because the
complaint already existed as an individual action.” (Id. at pp. 1168–1169.) Likewise, the
September 2018 order rejected what was effectively a request to insert class allegations
back into Williams’s individual action.3
       The December 2017 order’s procedural posture and resulting legal effect
distinguishes this case from Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556,
one of the primary decisions on which Williams relies. Aleman held that the denial
without prejudice of the named plaintiffs’ motion for class certification, on the basis that
they had not shown they were adequate class representatives, was not a death knell order.
(Id. at pp. 566, 586.) Aleman explained that “[b]ecause the denial order was without
prejudice, the remaining plaintiffs [were] free to move for class certification again.” (Id.
at p. 586.) Thus, those “plaintiffs’ ability to pursue class certification ha[d] not [yet] been
terminated,” and the order was not appealable. (Ibid.) In other words, the order in
Aleman neither dismissed nor struck the class allegations, which remained to support
another potential motion for class certification. In contrast, here the December 2017
order struck the class allegations, and those allegations no longer remained.
       Williams also relies on Farwell v. Sunset Mesa Property Owners Assn., Inc.
(2008) 163 Cal.App.4th 1545, which she characterizes as “dispositive.” There, four

       3
         In any case, the distinction Williams proposes between this case and Alch is
unworkable. As Alch emphasized, a plaintiff chooses which claims to pursue and is not
required to do anything in response to a trial court’s invitation to add or amend class
allegations. (See Alch, supra, 122 Cal.App.4th at p. 361.) An order’s current
appealability under the death knell doctrine cannot hinge on future actions a plaintiff may
or may not take.

                                               8
plaintiffs appealed from an order sustaining a demurrer to their complaint against a
defendant class of fellow homeowners in a particular development, on the basis that the
named defendants were not adequate representatives of the class. (Id. at pp. 1547, 1549.)
The demurrer was sustained with leave to amend. (Id. at p. 1547.) Farwell concluded
that the order was not appealable under the death knell doctrine for several reasons,
including that it was inappropriate to apply the doctrine “to the death knell of [an] action
as a defendant class action. . . . [T]he gist of the death knell doctrine is that the denial of
class action certification is the death knell of the action itself, i.e., that without a class
there will not be an action or actions, as is true of cases when the individual plaintiff’s
recovery is too small to justify pursuing the action. In this case, as inconvenient as
separate individual actions against homeowners may be for both plaintiffs and
defendants, such actions can nevertheless be filed and pursued.” (Id. at p. 1552.) Here,
of course, we are not concerned with an action against a defendant class, and Farwell’s
holding that an order sustaining a demurrer with leave to amend was not appealable under
the death knell doctrine consequently has little force.
       Williams ignores this obvious distinction, focusing instead on one of the other
reasons Farwell gave for its holding. On appeal, the plaintiffs had proposed for the first
time another way in which they could amend their complaint to name adequate class
representatives. (Farwell v. Sunset Mesa Property Owners Assn., Inc., supra,
163 Cal.App.4th at pp. 1551–1552.) Farwell stated, “[I]t may well be that this solution
would be acceptable to the [trial] court. If so, the [order sustaining the demurrer]
obviously was not the death knell of the class action.” (Id. at p. 1552.) But the appellate
court offered this reason before it made clear that a defendant class action was not the
sort of “class action” the doctrine even covers. (See ibid.) To the extent the court’s
statement suggests that an order sustaining a demurrer against a plaintiff class action with
leave to amend is “not the death knell” of that action, it is dicta, and we decline to follow
it over Alch’s well-reasoned discussion of the issue.
       To summarize the governing principles, an order whose legal effect is to strike the
class allegations from a complaint while leaving a plaintiff’s individual claims intact


                                                9
qualifies as a death knell order. Thus, an order sustaining a demurrer to class allegations
will generally qualify as a death knell order, regardless of whether leave to amend is
granted to re-allege class claims, because the order in effect strikes the allegations from
the complaint. But an order denying or decertifying a class will generally qualify as a
death knell order only if it is entered with prejudice. Such an order entered without
prejudice will generally not qualify as a death knell order because the order does not in
effect strike the class allegations from the complaint.
       Because the December 2017 order was appealable under the death knell doctrine
and Williams did not appeal it, it necessarily follows that she is foreclosed from now
attacking the dismissal of her class allegations. “California follows a ‘one shot’ rule
under which, if an order is appealable, appeal must be taken or the right to appellate
review is forfeited.” (Baycol, supra, 51 Cal.4th at p. 761, fn. 8.) Since, as we have said,
death knell orders are immediately appealable, a plaintiff who does not appeal a death
knell order is precluded from attacking it in the future. (Stephen v. Enterprise Rent-A-
Car, supra, 235 Cal.App.3d at p. 811.) In other words, “[u]nder any circumstances, a
plaintiff will have one, and only one, opportunity to appeal an order that has the legal
effect of disposing of all class claims.” (Alch, supra, 122 Cal.App.4th at p. 361.) Even if
the September 2018 order were otherwise appealable, at this point Williams can no
longer challenge the disposition of the class allegations in the December 2017 order,
which is now final.4
       We also conclude that we do not have jurisdiction to consider Williams’s claim
related to her failure to obtain discovery of the class list. Williams contends that “the
trial court’s refusal to allow [her] to bring a motion to compel—and by extension, to
make any order whatsoever as to whether to compel Impax to produce the class list—. . .
is memorialized in the [September 2018] order.” Assuming, without deciding, that this


       4
         Had Williams identified other class representatives and amended her complaint
accordingly, the December 2017 order would have remained a death knell order as to her,
but it would not bar the new putative class representatives from appealing future orders
that adversely resolved class allegations asserted by them.

                                             10
characterization is correct, we agree with her that this ruling was not a separate,
nonappealable “discovery order” and that her notice of appeal is not defective for failing
to specify it separately. But she does not argue that the ruling is independently
appealable, as opposed to reviewable in the context of our consideration of the ruling on
Impax’s motion to strike. Thus, because we do not have jurisdiction over the
September 2018 order to the extent it struck the first amended complaint’s class
allegations, we also do not have jurisdiction over it to the extent it effectively denied
Williams discovery of the class list.
       Finally, Williams asks in the alternative that we construe this appeal as a petition
for an extraordinary writ. “An appellate court has discretion to treat a purported appeal
from a nonappealable order as a petition for writ of mandate, but that power should be
exercised only in unusual circumstances.” (H.D. Arnaiz, Ltd. v. County of San Joaquin
(2002) 96 Cal.App.4th 1357, 1366–1367.) Our state Supreme Court has found
circumstances appropriate to justify this course “where requiring the parties to wait for a
final judgment might lead to unnecessary trial proceedings, the briefs and record included
in substance the necessary elements for a proceeding for a writ of mandate, there was no
indication the trial court would appear as a party in a writ proceeding, the appealability of
the order was not clear, and all the parties urged the court to decide the issue rather than
dismiss the appeal.” (Id. at p. 1367, discussing Olson v. Cory (1983) 35 Cal.3d 390.)
       Williams identifies no similar circumstances here. She claims only that writ
review is appropriate if we conclude that “an order sustaining a demurrer with leave to
amend class claims is immediately appealable,” since there “would be conflicting case
law on this point.” Williams cites other decisions that have granted writ relief in the face
of conflicts in the law, but they involved petitioners who sought writ review in the first
instance. Thus, those decisions did not involve the issue whether to construe an appeal as
a writ petition. In our view, more is required than just a colorable dispute about an
order’s appealability to create unusual circumstances justifying the exercise of our
discretion to treat an appeal as a writ petition.



                                               11
                                   III.
                               DISPOSITION
The appeal is dismissed. Respondent is awarded its costs on appeal.




                                    12
                                               _________________________
                                               Humes, P.J.




WE CONCUR:




_________________________
Margulies, J.




_________________________
Banke, J.




Williams v. Impax Laboratories, Inc. A155479


                                        13
Trial Court:

       Superior Court of the County of Alameda



Trial Judge:

       Hon. Winifred Younge Smith



Counsel for Plaintiff and Appellant:

       Edwin Aiwazian, Lawyers for Justice, PC

       Jill J. Parker, Lawyers for Justice, PC



Counsel for Defendant and Respondent:

       Steven B. Katz, Constangy, Brooks, Smith & Prophete LLP

       Barbara I. Antonucci, Constangy, Brooks, Smith & Prophete LLP

       Philip J. Smith, Constangy, Brooks, Smith & Prophete LLP

       Aaron M. Rutschman, Constangy, Brooks, Smith & Prophete LLP




Williams v. Impax Laboratories, Inc. A155479


                                             14
