DeSiqueira v. Toyota Motor
Ins. Co.

















Filed 1/14/13
DeSiqueira v. Toyota Motor Ins. Co. CA2/2











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NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION TWO




>

WEBER DeSIQUEIRA, Plaintiff and Appellant, v. TOYOTA MOTOR INSURANCE SERVICES, INC., Defendant and Respondent.

B237534 (Los Angeles County Super. Ct. No. BC413643)

APPEAL
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Luis A. Lavin, Judge. Dismissed.



Hodges
and Associates, A Clifton Hodges; Kostas Law Firm, James S. Kostas for Plaintiff and Appellant.



Sheppard,
Mullin, Richter & Hampton, Sascha Henry, Peter S. Hecker, Anna S. McLean,
Lai L. Yip for Defendant and Respondent.

___________________________________________________





Weber DeSiqueira appeals from a
trial court order staying his lawsuit and ordering contractual
arbitration. The order compelling
arbitration is not appealable. Further,
it was not the “death knell” of DeSiqueira’s case because it is neither impossible
nor impracticable for him to proceed with his href="http://www.fearnotlaw.com/">individual claims. Finally, there are no exceptional
circumstances warranting treatment of the appeal as a writ of mandate. Accordingly, we dismiss the appeal for lack
of jurisdiction.

FACTS AND PROCEDURAL HISTORYhref="#_ftn1" name="_ftnref1" title="">^[1]>

DeSiqueira
purchased a Toyota that has a new vehicle warranty covering repairs and defects for
three years or 36,000 miles, whichever occurs first. He also purchased a “Toyota Extra Care
Vehicle Service Agreement” (the Contract), an extended service contract
administered by respondent Toyota Motor Insurance Services, Inc. (Toyota). DeSiqueira paid $1,145 for seven years of
service or 75,000 miles, whichever occurs first. The warranty and the Contract run
concurrently, so long as the warranty is in effect.

The Contract contains
an arbitration clause subjecting any claims arising from the Contract to
arbitration under the Federal Arbitration Act, including claims in contract,
tort, pursuant to statute, regulation, ordinance, or in equity. The Contract prohibits class actions and
class arbitrations.

DeSiqueira filed
this class action lawsuit in 2009, alleging that the Contract covers the same
items as the warranty, in violation of state law. The trial court sustained Toyota’s demurrers
without leave to amend and gave judgment to Toyota. On appeal, we wrote that DeSiqueira did not
state a claim because “It is undisputed that Toyota’s service
contract covers costs not covered by the manufacturer’s warranty.” At DeSiqueira’s request, we authorized an
amendment to allege that Toyota’s misrepresentations or false advertising induced him to enter the
Contract.

After remittitur
issued in 2011, Toyota sent plaintiff a letter demanding arbitration, relying
on a recent Supreme Court decision, AT&T
Mobility LLC v. Concepcion (2011) __ U.S. __ [131 S.Ct. 1740], which
addresses class action waiver clauses.
DeSiqueira did not respond to the arbitration demand. Instead, he filed an amended pleading
asserting class claims for unfair competition and deceptive representations
made in connection with the sale of services.
(Bus. & Prof. Code, §§ 17200, 17500; Civ. Code, § 1750, et
seq.) DeSiqueira alleges that Toyota’s marketing
and advertising causes service contract purchasers to think they are receiving
seven years/75,000 miles of repair coverage beyond the warranty when in fact
they receive only a few years more than the warranty.

Toyota moved to
compel arbitration. DeSiqueira asked the
trial court to find the arbitration clause unconscionable or
unenforceable. The court found that
DeSiqueira agreed to arbitrate when he entered the Contract, and the
arbitration clause encompasses all of his claims. The court ordered DeSiqueira to submit to
arbitration, and stayed his lawsuit pending completion of the arbitration. DeSiqueira appeals.

DISCUSSION

Toyota challenges
appellate jurisdiction because DeSiqueira has appealed from an intermediate
order compelling arbitration. Under the
“one final judgment” rule, an order compelling arbitration is not appealable. (State
Farm Fire & Casualty v. Hardin (1989) 211 Cal.App.3d 501, 506.) An appeal is permissible when judgment is
entered following arbitration. (>Ibid.; Code Civ. Proc., § 1294,
subd. (d).)

DeSiqueira
contends that the “death knell” doctrine applies here. He reasons that the trial court effectively
terminated his class claims, making that portion of the order immediately
appealable. Toyota counters
that the death knell doctrine only applies when it is impossible or
impracticable for plaintiff’s case to proceed as an individual action, and
DeSiqueira made no showing that he cannot proceed with individual arbitration.

The death knell
doctrine applies when “an order terminates class claims, but individual claims
persist.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 762.) It requires (1) a de facto final judgment for
absent class members and (2) circumstances indicating that “any appeal likely
would be foreclosed” because no final judgment is apt to be entered on
plaintiff’s individual claims. (>Id. at p. 757-759.) The Supreme Court has “repeatedly reaffirmed
that an order that denies class certification or otherwise extinguishes class
claims in their entirety is appealable, but only in cases in which individual
claims survived.” (Id. at pp. 761-762.)

The trial court
stayed—but did not dismiss—DeSiqueira’s class claims. If the court stays class litigation while
ordering the plaintiff to arbitrate, the order is not appealable because it is
not tantamount to dismissal and does not terminate the class claims. (Elijahjuan
v. Superior Court (2012) 210 Cal.App.4th 15, 19.) Nevertheless, the parties agree that the
order in this case amounts to a dismissal DeSiqueira’s class claims, leaving
only his individual claims.

There remains
the question whether the second part of Baycol
is satisfied. That question measures
the probability that “any appeal likely would be foreclosed” because of a risk
that no final judgment will be entered on DeSiqueira’s individual claims. The death knell doctrine only applies “when
it is unlikely the case will proceed as an individual action.” (Szetela
v. Discover Bank (2002) 97 Cal.App.4th 1094, 1098. But compare >Franco v. Athens Disposal Co., Inc. (2009)
171 Cal.App.4th 1277, 1288, which does not discuss the second part of the death
knell doctrine.)

“Here,
[appellant] fails to explain or demonstrate how the trial court’s order makes
it impossible or impracticable for [him] to proceed with the action at
all.” (Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th
1115, 1123.) On the contrary, DeSiqueira
suggests that his possible recovery of $1,145 “coupled with the right to
recover attorney’s fees and costs,” increases the likelihood he will proceed
with individual claims. Because
DeSiqueira does not argue that it is impossible or impracticable to proceed
with his claims, the death knell doctrine does not apply.

DeSiqueira asks
this Court to treat his appeal from the order compelling arbitration as an
extraordinary writ. “In exceptional
situations, a party aggrieved by an order compelling arbitration may seek
appellate review of the order by a petition for writ of mandate.” (State
Farm Fire & Casualty v. Hardin,
supra, 211 Cal.App.3d at p. 507.)
“Though we [ ] have power to treat the purported appeal as a petition
for writ of mandate, we should not exercise that power except under unusual
circumstances.” (Olson v. Cory (1983) 35
Cal.3d 390, 401.) With respect to
arbitration clauses, “the underlying policy [is] to encourage parties to
arbitrate first and litigate, if necessary, later.” (Blanton
v. Womancare, Inc. (1985) 38 Cal.3d 396, 408.)

DeSiqueira has
made no showing of exceptional or unusual circumstances. Multiple cases are pending before the state
Supreme Court involving the issue
presented in this appeal, i.e., the effect on state law of the federal decision
in Concepcion. A premature ruling in favor of DeSiqueira
could lead to lengthy, costly and ultimately futile discovery on the class
claims. Under the circumstances, it is
prudent to conserve resources and allow DeSiqueira to proceed to arbitration on
his individual claims while awaiting a definitive ruling from above. The parties may even elect to defer their
arbitration until the Supreme Court provides guidance.

The viability of
DeSiqueira’s class claims will not evade review. After his individual claims are arbitrated
and a judgment is obtained, plaintiff is entitled to review of the trial
court’s interim rulings. (Code Civ.
Proc., § 906; Abramson v. Juniper
Networks, Inc. (2004) 115 Cal.App.4th 638, 648-649; Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351,
1359; Villacreses v. Molinari (2005)
132 Cal.App.4th 1223, 1229; State Farm
Fire & Casualty v. Hardin, supra,> 211 Cal.App.3d at p. 506;> Wheeler v. St. Joseph Hospital (1976)
63 Cal.App.3d 345, 353.)

DISPOSITION

The
appeal is dismissed. Parties to bear
their own costs and attorney fees on appeal.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.



BOREN,
P.J.

We concur:



DOI
TODD, J. ASHMANN-GERST,
J.