Fireside Bank v. Super. Ct.

Filed 8/16/07 Fireside Bank v. Super. Ct. CA6

Opinion following remand

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

This matter is before us on remand from the Supreme Court. In our original decision we held that (1) the trial court had not erred prejudicially by granting, prior to certifying a class, real party Sandra Gonzalezs motion for judgment on the pleadings as to petitioner Fireside Banks claims against her; and (2) the court had not erred in certifying the class. (Fireside Bank v. Superior Court (Gonzalez) (Oct. 21, 2005, H027976).) The Supreme Court rejected the first holding, concluding that the trial court abused its discretion in ruling on the pleading motion while the class issues remained unresolved. (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1074-1075, 1087 (Fireside Bank).) The court agreed with us, however, that no abuse of discretion appeared in the trial courts order granting class certification. (Id. at pp. 1075, 1089.) The court reversed the case and remanded it to us for further proceedings consistent with this opinion. (Id. at p. 1093.)

It appears that the only issue before us is the correct disposition. The parties have not submitted supplemental briefs on this issue. (See Cal. Rules of Court, rule 8.200(b).) In its original petition, Fireside Bank contended that by granting a motion going to the merits, the trial court created a difficulty that can only be alleviated by barring treatment as a class action. The Supreme Court, however, squarely rejected this contention. The court reasoned that plaintiff Sandra Gonzalez acted excusably in filing her pleading motion before a class was certified, and was blameless in the trial courts ruling on that motion prematurely, over requests that it delay action and assurances that it would do so. (Fireside Bank, supra, 40 Cal.4th at p. 1088.) Accordingly, to bar class certification would be inequitable: Instead, vacating the trial courts premature merits ruling and ordering the trial court to disregard it and decide any future motion de novo will reduce the risk of one-way intervention for Fireside Bank without unduly punishing plaintiffs. (Ibid.) That will therefore be the order.

Disposition

Let a writ issue directing the respondent court to set aside its order granting real party Sandra Gonzalezs motion for judgment on the pleadings against petitioner Fireside Banks complaint. No further action will be taken on that motion until such time as the class has been duly notified and the time for any opting-out has expired. The court is to

wholly disregard the vacated order in any future proceedings, and will address de novo all questions going to the merits of the class claims.

Each side will bear its own appellate costs.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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