67 Cal.2d 695, 29439, Daar v. Yellow Cab Co.

Docket Nº:29439
Citation:67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732
Opinion Judge:[10] Sullivan
Party Name:Daar v. Yellow Cab Co.
Attorney:[7] David Daar, in pro. per., Max Tendler and Leon Perlsweig for Plaintiff and Appellant. [8] Thomas C. Lynch, Attorney General, and Jay L. Shavelson, Assistant Attorney General, as Amici Curiae on behalf of Plaintiff and Appellant. [9] Hanna & Morton, David A. Thomas and Douglas P. Grim for Defe...
Case Date:November 15, 1967
Court:Supreme Court of California
 
FREE EXCERPT

Page 695

67 Cal.2d 695

63 Cal.Rptr. 724, 433 P.2d 732

David DAAR, Plaintiff and Appellant,

v.

YELLOW CAB COMPANY, Defendant and Respondent.

L.A. 29439.

Supreme Court of California

Nov. 15, 1967.

In Bank

Page 696

[Copyrighted Material Omitted]

Page 697

David Daar, Los Angeles, in pro. per., Max Tendler and Leon Perlsweig, Los Angeles, for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., and Jay L. Shavelson, Asst. Atty. Gen., as amici curiae on behalf of plaintiff and appellant.

Page 698

Hanna & Morton, David A. Thomas and Douglas P. Grim, Los Angeles, for defendant and respondent.

SULLIVAN, Justice.

Plaintiff David Daar, suing 'in behalf of himself and all other persons similarly situated,' appeals from an order of the superior court sustaining defendant's demurrer to plaintiff's complaint without leave to amend and transferring the cause to the municipal court. 1 It is clear from the record that the action was transferred pursuant to Code of Civil Procedure section 396 2 after the court determined that plaintiff could neither maintain a class action (§ 382) nor state a cause of action for his prior damages in excess of $5,000 (§ 89). 3 Initially we must determine whether the order of January 28, 1965, is appealable.

Section 963 provides that an appeal may be taken from a superior court from 'a final judgment entered in an action, * * *.' In determining whether there has been a final judgment, sometimes a difficult question, we have long adhered to the rule 'that the question, as affecting the right of appeal, is not what the form of the order or judgment may be,

Page 699

but what is its legal effect. (Citations.)' (Howe v. Key System Transit Co. (1926) 198 Cal. 525, 531, 41; Lyon v. Goss (1942) 19 Cal.2d 659, 670; Bakewell v. Bakewell (1942) 21 Cal.2d 224, 227; In re Los Angeles County Pioneer Society (1953)40 Cal.2d 852, 857--858; People v. Succop (1966) 65 Cal.2d 483, 486, 55 Cal.Rptr. 397.) Although an order sustaining a demurrer with or without leave to amend is not the final judgment in the case (Berri v. Superior Court (1955) 43 Cal.2d 856, 860) and is nonappealable (Evans v. Dabney (1951) 37 Cal.2d 758, 759; Cole v. Rush (1953) 40 Cal.2d 178), here the order under examination not only sustains the demurrer, but also directs the transfer of the cause from the superior court, where it was commenced as a class action, to the municipal court. We must assay the total substance of the order. It determines the legal insufficiency of the complaint as a class suit and preserves for the plaintiff alone his cause of action for damages. In 'its legal effect' (Howe v. Key System Transit Co., supra) the order is tantamount to a dismissal of the action as to all members of the class other than plaintiff. (See McClearen v. Superior Court (1955) 45 Cal.2d 852, 856; Bowles v. Superior Court of Tulane County (1955) 44 Cal.2d 574, 582; Herrscher v. Herrscher (1953) 41 Cal.2d 300, 303.) It has virtually demolished the action as a class action. If the propriety of such disposition could not now be reviewed, it can never be reviewed. This court has observed that it 'has long been the rule in this state that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment.' (Herrscher v. Herrscher, supra, 41 Cal.2d at pp. 303--304, 259 P.2d at p. 903; see Southern Pac. R.R. Co. v. Willett (1932) 216 Cal. 387, 390, and cases therein cited.) We conclude that the order in the case at bench is in legal effect a final judgment from which an appeal lies and we therefore proceed to the issues raised before us.

Plaintiff, in behalf of himself and all other persons similarly situated, commenced the instant action on November 20, 1964, to recover as damages overcharges allegedly made by defendant Yellow Cab Company 4 (hereinafter referred to

Page 700

as Yellow Cab) for taxicab services furnished to plaintiff and the aforesaid other persons during the four years immediately preceding the commencement of the action. The complaint is in two counts: the first, seeking recovery on behalf of taxicab users paying for the services with script book coupons; and the second seeking recovery on behalf of taxicab users paying cash for the services.

Count one alleges in substance that defendant is engaged in the business of providing taxicab transportation in the City of Los Angeles (hereinafter referred to as the city); that at all times mentioned, said defendant has been franchised in writing and by agreement with the Public Utilities Commission of said city to engage in such business and to charge rates in taxicabs only in those amounts fixed by the commission; that defendant used meters approved by the commission which automatically registered the rates and the cost of transportation of each particular trip; that the meters could be set to register rates of transportation set by the commission and 'could be adjusted to any other unit of rate for purposes of registering the total cost of each trip'; that defendant, under the conditions of its franchise, could charge no rates other than those fixed by the commission; that defendant was authorized to and did sell coupon books, denominated 'Yellow Cab Script' to be accepted by it in payment for transportation; that each of said script books bore a serial number and contained coupons of various denominations, each bearing the same serial number as that of the respective book.

It is further alleged in count one that plaintiff is a resident of the County of Los Angeles and 'sues on behalf of himself and all others similarly situated'; that 'all members of this class are purchasers and users of said script books' and have paid for taxicab transportation with coupons from the books; that plaintiff 'and all those on whose behalf this action is maintained are purchasers and users of the said script books and the taxicab transportation furnished by the defendants to them within four years last past'; that the names and addresses of all purchasers and users of script books can be definitely ascertained from defendant's books and records and that there are common interests of facts and law that unite

Page 701

plaintiff and all the members of the class in whose behalf the action is instituted. 5

Count one further alleges that within four years immediately preceding the commencement of this action, defendant constructed, maintained and installed in its taxicabs meters which were to be used for the purpose or registering each trip cost at the approved rate established by the commission and as represented by defendant to plaintiff and the members of the above class; that defendant 'did contract in writing with the plaintiff and the aforesaid class' to accept coupons in payment of taxicab service and 'did contract in writing with the City of Los Angeles and the plaintiff and persons of the aforesaid class' that taxicab service would be furnished at rates established by the commission; that defendant did not adjust and maintain the meters to register rates and mileage approved by the commission and 'did instead adjust and set the meters to register rates in excess of same, and did thereby charge to its customers, the plaintiff and aforesaid class of persons, an amount in excess of that which was lawful and in accordance with the agreements made between defendants and the Public Utilities Commission and between the defendants and plaintiff and the aforesaid class of persons.'

It is further alleged in count one that 'by reason of the foregoing,' defendant overcharged plaintiff and members of the aforesaid class for taxicab services 'within four years

Page 702

last past'; that the exact amount of said overcharge is not known to plaintiff and the aforesaid class but is and can be ascertained from defendant's books and records, and upon information and belief exceeds the sum of $100,000; that there is no plain, speedy or adequate remedy other than by maintenance of the instant class action; 6 that 'within four years last past,' plaintiff individually has expended $100 for script books, has used the coupons therefrom for payment of transportation and has been overcharged as set forth above in an amount unknown to him but known to defendant.

Count two, after incorporating by reference those allegations of count one dealing with defendant's business, franchise, use of meters, adjustment of meters to register other than established rates and resulting overcharges, but omitting all references to script book coupons, alleges in substance that plaintiff is a resident of Los Angeles County and 'sues on behalf of himself and all others similarly situated'; that plaintiff 'and all others on whose behalf this action is maintained, are users of the taxicab services supplied by the defendants'; and that there are common interests of facts and law that unite all the members of the class in whose behalf the action is instituted. 7

Count two further alleges that defendant 'did contract in writing with the City of Los Angeles and the plaintiff that the said public transportation taxicab service would be furnished at rates set forth and designated' by the commission; that 'in fact higher rates were charged plaintiff and his said

Page 703

class'; that by reason of the foregoing, defendant 'overcharged plaintiff and his class for public transportation in cabs furnished to them within four years last past; that the exact amount of the said overcharge is not at this time known to plaintiff, but is and can be ascertained at the time of the trial'; that the nature and amount of the overcharge is within the knowledge of defendant, and upon information and belief exceeds $100,000; that there is no plain, speedy or adequate...

To continue reading

FREE SIGN UP