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Date: 11-21-2019

Case Style:

Shelia Brown v. Upside Gading, L.P.

Case Number: A157685

Judge: Wick, J.

Court: California Court of Appeals First Appellate District, Division Three on appeal from the Superior Court, County of Alameda

Plaintiff's Attorney: Andrew Wolff, Tony Ruch, Jesse Mica Newmark and Micaela Lewis Alvarez

Defendant's Attorney: Stephen D. Pahl, Servando Sandoval, Helene Anastasia Simvoulakis and Stephen D. Pahl

Description: 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-Englishspeaking
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
After Upside representatives approached the tenant putative class members in the
evening in their respective units with pre-written releases from the class action2 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.
“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
(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”].)

Outcome: The appeal is dismissed.

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.)

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