In Alan v. American Honda Motor Co., 40 Cal.4th 894 (2007), the Supreme Court addressed whether a notice of appeal had been timely filed from an order denying class certification. Holding that the notice of appeal was timely, the Supreme Court remanded the case back to the Court of Appeal for further proceedings. (See this blog post on the Supreme Court's opinion.)
In an unpublished opinion, the Court of Appeal reached the merits of the appeal on remand and affirmed the order denying class certification. Alan v. American Honda Motor Co., no. B165756 (Jan. 30, 2008) (unpublished). The unpublished opinion shows that the death-knell appealbility rule for orders denying certification can create other problems for unwary class action practitioners. In the unpublished Alan opinion on remand, the Court of Appeal held that an order denying leave to amend the complaint to add a new class claim was an appealable order:
In this case, the trial court order denying Alan’s motion to amend constituted a death knell order which denied certification of a distinct class of claims and was tantamount to a dismissal of the action as to all members of the class. In other words, the order denying the motion to amend eliminated the claims of purported class members who allegedly received Honda’s unnecessary representation that timing belts should be changed every 90,000 miles or 72 months. Thus, the order denying the motion for leave to amend was immediately appealable.
Slip op. at 11. Fortunately for class counsel, the Court of Appeal went on to address the merits of the order denying leave to amend. Unfortunately for class counsel, the Court affirmed.