Brown v. Upside Gading, LP

Filed 10/17/19; Certified for Publication 11/18/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SHEILLA BROWN,

Plaintiff and Respondent,

A157685

v.

UPSIDE GADING, LP, et al., (Alameda County

Super. Ct. No. RG18928503)

Defendants and Appellants.

This is an appeal in a landlord–tenant class action from a trial court order

invalidating the broad releases of claims signed by approximately 26 tenant putative class

members and requiring the parties to meet and confer regarding a corrective notice for the

putative class after the court found said releases contained misleading and one-sided

information regarding the underlying lawsuit. Plaintiff Sheilla Brown brought this action

on behalf of herself and other similarly situated persons against defendants Upside

Gading, LP and Upside Management Company, Inc. (Upside) for alleged violations of

the City of Hayward’s Residential Rent Stabilization and Tenant Protection Ordinance

(ordinance). According to plaintiff, a tenant in low-income, rent-controlled housing

owned and managed by Upside, Upside claimed an exemption to the ordinance based

upon misleading information and thereafter imposed upon the often non-English-

speaking tenant putative class members illegal rent increases, charged them excessive late

fees, and failed to pay required security deposit interest in violation of local and state

laws. 1

After Upside representatives approached the tenant putative class members in the

evening in their respective units with pre-written releases from the class action 2 that

contained misleading, coercive and inadequate information, along with pre-written

checks as “compensation” for past rent increases and other payments, plaintiffs sought

and obtained the trial court order dated June 19, 2019, that is at the heart of this appeal. 3

After Upside appealed this order, this court stayed briefing and ordered Upside to

submit a letter brief either requesting to dismiss this appeal or explaining why this court

1

For the purposes of this opinion, it is not necessary to set forth the extended

procedural or factual background of this case.

2

The contents of Upside’s releases and other communications with the putative

class members were described in declarations submitted by the parties in connection with

plaintiffs’ Motion to Limit Defendants’ Class Communications and for Corrective

Actions, and are largely undisputed.

3

The releases presented to the tenants contained in part the following language:

“ ‘Tenant and Landlord have reached a full and complete settlement of the Released

Claims,’ . . . mean[ing] that the tenants ‘individually, and on behalf of their respective

agents, attorneys, representatives, heirs, family members’ and other related parties,

‘hereby release[], acquit[] and forever, absolutely and unconditionally, discharge[]

Landlord and all of its agents, contractors, subcontractors, attorney,’ and other

representatives, ‘of and from any and all actions, causes of action, claims, demands,

rights, injuries, debts, obligations, liabilities, contracts, duties, damages, costs, attorneys’

fees, expenses or losses of every kind . . . that accrued at any time prior to execution of

this Agreement . . . whether known or unknown, anticipated or unanticipated, direct or

indirect, fixed or contingent,’ ‘arising from any matter, cause or thing, whatsoever

occurred, done or omitted, including without any limitation, any claims under Tenant’s

lease and other claims for (1) rent abatement, (2) reimbursement of rental charges,

(3) any claims relating to late fees charged . . . , (4) any claims relating to any alleged

violations of the HUD Use Agreement, and (5) any claims arising from any alleged

violation of the [ordinance].’ ” Translated copies of the releases were not provided to the

non-English-speaking tenants.

should not dismiss the appeal for the reason that it is taken from a nonappealable order. 4

Plaintiff, in turn, was permitted to file a responsive letter brief. (See Jennings v. Marralle

(1994) 8 Cal.4th 121, 126 [“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”].)

Upside responded to our order with a letter brief arguing that the trial court’s

June 19, 2019 order is appealable as an injunctive order within the meaning of Code of

Civil Procedure section 904.1, subdivision (a)(6) because it mandates certain actions on

their part with respect to the putative class members. 5 Plaintiffs, in turn, requested

dismissal of the appeal on the ground that section 904.1 provides no basis for appealing a

standard interlocutory order such as this one. We agree with plaintiffs and, accordingly,

dismiss this appeal.

DISCUSSION

“The existence of an appealable judgment is a jurisdictional prerequisite to an

appeal.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.) “California is governed

by the ‘one final judgment’ rule which provides ‘interlocutory or interim orders are not

appealable, but are only “reviewable on appeal” from the final judgment.’ [Citation.]

The rule was designed to prevent piecemeal dispositions and costly multiple appeals

which burden the court and impede the judicial process. [Citation.] In keeping with this

rule, section 904.1 generally authorizes appeals from superior court judgments, except

those which are interlocutory.” (Id. at pp. 1292–1293.) Interlocutory rulings “ ‘within

the statutory classes of appealable interlocutory judgments’ ” remain appealable;

however, the appellant bears the burden of establishing the appealability of such a ruling.

4

Our July 5, 2019 order also denied Upside’s petition for writ of supersedeas

seeking a stay of enforcement pending appeal of the provision of the trial court’s order

requiring Upside to meet and confer with plaintiff regarding a corrective notice.

5

Unless otherwise stated, all statutory citations herein are to the Code of Civil

Procedure.

(Id. at p. 1293; Cal. Rules of Court, rule 8.204(a)(2)(B); In re Marriage of Fajota (2014)

230 Cal.App.4th 1487, 1496, fn. 5.)

Relevant here, under section 904.1, subdivision (a)(6), an appeal may be taken

from an order granting or denying a request for an injunction, meaning, an order

requiring a person to perform, or to refrain from performing, a particular act. (§§ 904.1,

subd. (a)(6), 525; PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210

Cal.App.4th 132, 143.) “Whether a particular order constitutes an appealable injunction

depends not on its title or the form of the order, but on ‘ “the substance and effect of the

adjudication.” ’ ” (Id. at pp. 142–143.)

Here, Upside contends the trial court’s June 19, 2019 order constitutes an

appealable injunction “insofar as it requires Appellants to take affirmative steps to effect

invalidation of the Releases” by “participat[ing] in the preparation of a corrective notice

and . . . provid[ing] Plaintiff’s counsel with the Releases and contact information for

those tenants who executed the same.” We disagree with Upside’s reasoning.

A court order nearly always requires some action or inaction from one or both

parties or their counsel. However, this fact does not render nearly all court orders

injunctive in nature. Rather, an order requiring an action or inaction by a party may

simply be a proper exercise of the court’s inherent authority to control the proceedings

before it. It is “well established that courts have fundamental inherent equity,

supervisory, and administrative powers, as well as inherent power to control litigation

before them.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; see § 128,

subd. (a)(5) [powers include controlling the “conduct of . . . persons . . . connected with a

judicial proceeding before it”].)

Moreover, in the context of a class action such as this, “it is the court’s authority

and duty to exercise control over the class action to protect the rights of all parties, and to

prevent abuses which might undermine the proper administration of justice.” (Howard

Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581.)

“Communications that misrepresent the status or effect of the pending action, or which

may cause confusion, adversely affect the administration of justice.” (Id. at p. 582; see

also Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1454

[“Where a trial court identifies a potential for abuse, the court ‘ “has both the duty and the

broad authority to exercise control over a class action and to enter appropriate orders

governing the conduct of counsel” ’ ”].)

And while it is well established that an interlocutory order denying class

certification is appealable because such an order effectively serves as the “death knell” of

the lawsuit for all class members aside from the named plaintiff, other routine interim

orders directed at litigation management in class action lawsuits are not generally

appealable. (See Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163

Cal.App.4th 1545, 1547–1548 [order sustaining demurrer with leave to amend in class

action not appealable; “other orders dealing with class actions [besides orders denying

class certification] have not been included in the death knell doctrine. Thus, excluded

from the death knell doctrine are orders certifying a class, orders partially certifying a

class, orders compelling the representative of a class to arbitrate, and orders directing

service of notice to class members, to name four examples”]; Steen v. Fremont Cemetery

Corp. (1992) 9 Cal.App.4th 1221, 1224, 1228–1229 [an order “directing service of notice

of class action to the members of respondent class, and allocating the cost of preparing

such notice between appellant and respondent class in the manner specified in the order”

is a nonappealable, interlocutory order].)

We find particularly helpful the opinion of our Second Appellate District

colleagues in Estrada v. RPS, Inc. (2005) 125 Cal.App.4th 976 (Estrada). There, the

named plaintiff in a class action sought review of orders by the trial court requiring a

questionnaire to be sent to potential class members, and then dismissing potential

members who failed to respond to this questionnaire. (Id. at p. 978.) Our colleagues

dismissed the appeals as premature, reasoning (inter alia) that the challenged orders were

“part and parcel of the class certification process and, as such, not appealable.” (Id. at

pp. 985–986.) We conclude the same is true in this case.

The pre-class-certification order at issue in this case invalidated the releases

obtained by Upside through misleading, coercive and otherwise improper

communications and required: (1) the parties to meet and confer regarding preparation of

a corrective notice to be sent to the putative class members; (2) Upside to refrain from

communicating with putative class members about the lawsuit until the corrective notice

is issued; and (3) Upside to provide plaintiffs’ counsel with copies of the improperly

obtained executed releases and contact information for the signatories. Just as in

Estrada, this order under challenge is “part and parcel of the class certification process

and, as such, not appealable.” (Estrada, 125 Cal.App.4th at pp. 985–986.) Accordingly,

we dismiss Upside’s appeal as taken from a nonappealable order. 6 (Jennings v. Marralle,

supra, 8 Cal.4th at p. 126 [“The existence of an appealable judgment is a jurisdictional

prerequisite to an appeal”].)

DISPOSITION

The appeal is dismissed.

6

It is true that appellate courts have the discretion to treat an appeal from a

nonappealable order as a petition for writ relief, and thus determine the merits of the

challenge to the order, but only under limited, extraordinary circumstances. (E.g., Olson

v. Cory (1983) 35 Cal.3d 390, 400–401.) Here, however, Upside has put forth no

extraordinary or compelling reason for us to consider its appeal as a writ petition.

Accordingly, we conclude dismissal of the appeal is the appropriate action. (See MinCal

Consumer Law Group v. Carlsbad Police Dept. (2013) 214 Cal.App.4th 259, 265–266.)

_________________________

Wick, J. *

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A157685/Brown v. Upside Gading, LP

*

Judge of the Superior Court of Sonoma County, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.

Filed 11/18/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SHEILLA BROWN, A157685

Plaintiff and Respondent,

(Alameda County

v. Super. Ct. No. RG18928503)

UPSIDE GADING, LP, et al.,

ORDER CERTIFYING OPINION

Defendants and Appellants. FOR PUBLICATION;

NO CHANGE IN JUDGMENT

THE COURT:

The opinion in the above-entitled matter filed on October 17, 2019, was not

certified for publication in the Official Reports. For good cause it now appears that the

opinion should be published in the Official Reports, and it is so ordered.

Date: 11/18/2019 FUJISAKI, J. , Acting P. J.

A157685/Brown v. Upside Gading, LP

Trial Court: Superior Court of Alameda County

Trial Judge: Brad Seligman, J.

Counsel: Centro Legal de la Raza, Jesse Newmark and Micaela Alvarez; Law

Offices of Andrew Wolff, Andrew Wolff, Tony Ruch and Wortham

Briscoe for Plaintiff and Respondent.

Pahl & McCay, Stephen D. Pahl, Servando R. Sandoval and Helene A.

Simvoulakis-Panos for Defendants and Appellants.