Collins v. City & County of San Francisco

Decision Date18 August 1952
CourtCalifornia Court of Appeals Court of Appeals
PartiesCOLLINS v. CITY & COUNTY OF SAN FRANCISCO et al. Civ. 15135.

H. Ward Dawson, Jr., San Francisco, for appellant.

Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for respondents.

PETERS, Presiding Justice.

Plaintiff, as an employee of the City and County of San Francisco, brought this action on his own behalf and on behalf of some 7,835 other employees similarly situated, to have it determined that the salary standardization ordinance passed by the Board of Supervisors in 1950 was improperly submitted to a referendum. At that referendum the ordinance was rejected by the voters. The action seeks a declaration of the validity or non-validity of the referendum, and, if the referendum is held to have been invalid, then an order requiring the payment to all civil service employees affected of the salaries they would have received under the rejected ordinance. The trial court sustained a demurrer without leave to amend. The plaintiff appeals.

Before considering the appeal on its merits, there are certain preliminary points to which reference should be made. First, it must be determined if the appeal has been taken from an appealable order. The notice of appeal recites that the appeal is taken from 'the minute order sustaining the demurrer of defendants without leave to amend made herein on May 31, 1951, and entered herein June 1, 1951, and from the whole thereof.' It is hornbook law that the order sustaining a demurrer is interlocutory, is not appealable, and that the appeal must be taken from the subsequently entered judgment. Weiss v. Garofalo, 89 Cal.App.2d 811, 201 P.2d 845; Hardy v. San Fernando Valley Chamber of Commerce, 99 Cal.App.2d 572, 222 P.2d 314; Sturgeon v. City of Hawthorne, 106 Cal.App. 352, 289 P. 229; Cornic v. Stewart, 179 Cal. 242, 176 P. 164. Of course, the appellate courts have 'no power to make appealable an order which is nonappealable. The problem is one of jurisdiction. If appellants appealed from a nonappealable order we cannot remedy the defect. We cannot consider an appeal where none was taken.' Schmidt v. Townsend, 103 Cal.App.2d 185, 186, 229 P.2d 488, 489.

But the court has the power of interpretation. 'Where it is perfectly apparent, as it is here, that appellant seeks a review of an order of dismissal, and where, as here, the notice of appeal is filed in ample time from either the entry of the order or judgment, and where, as here, the notice of appeal is addressed to all respondents and to their attorneys so that no one is misled, and where, as here, no prejudice to respondents exists, the notice of appeal should be treated as being from the appealable order even if the notice incorrectly designates the 'order' as a 'judgment,' and erroneously gives the date of the entry of the judgment rather than that of the order. It is therefore held that the notice of appeal is effective as to all respondents.' Holden v. California Employment, etc., Comm. 101 Cal.App.2d 427, 431, 225 P.2d 634, 636. As also pointed out in that case, notices of appeal should be liberally construed to permit, if possible, a hearing on the merits. Many cases are there cited to illustrate that in applying this liberal rule, courts have frequently construed the word 'order' to mean 'judgment,' and vice versa. In re Estate of Stone, 173 Cal. 675, 161 P. 258, there was an incorrect designation of the proceeding appealed from, and a wrong date in the notice. Nevertheless, the court, by liberally construing the notice, permitted the appeal to be effective. See, also, Airline Transport Carriers v. Batchelor, 102 Cal.App.2d 241, 227 P.2d 480; People v. Saad, 105 Cal.App.2d Supp. 851, 234 P.2d 785.

In the present case the order sustaining the demurrer was filed June 1, 1951. The judgment was entered June 29, 1951. The notice of appeal was filed July 23, 1951. Thus the notice was filed within sixty days of the entry of either the judgment or the minute order. All of the other requirements enumerated in the quotation from the Holden case are here present. That being so, although the notice of appeal incorrectly describes the judgment as a 'minute order,' and erroneously gives the date of the minute order rather than the date of the judgment, we will treat the appeal as being from the appealable judgment.

The second objection of respondents to the consideration of this appeal on its merits is that in a declaratory relief action such as this the trial court may refuse to entertain jurisdiction where the amount claimed by the petitioning party is $300, or less. It is urged that the order sustaining the demurrer without leave to amend should be interpreted as an exercise of the discretionary power of the court conferred upon it by section 1061 of the Code of Civil Procedure.

There is no doubt, insofar as Mr. Collins is concerned, that the amount he would receive in the event the relief prayed for is granted is $300 or less. There is also no doubt but that some discretion is granted to the trial court in declaratory relief actions. Section 1061 of the Code of Civil Procedure provides: 'The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.' There are cases that hold that the lack of the requisite jurisdictional sum is a factor that the trial court may consider on a motion to dismiss. Simpson v. Security First Nat. Bank, 71 Cal.App.2d 154, 162 P.2d 494; A. Hamburger & Sons, Inc., v. Kice, 129 Cal.App. 68, 18 P.2d 115. The Simpson case even holds that the exercise of this discretion can be properly undertaken upon consideration of a demurrer.

These cases, however, have no application here. That is so because, even though a trial court may exercise its discretion to deny relief in such an action by sustaining a demurrer without the right to amend, it must appear directly or indirectly that such discretion was in fact exercised. In the instant case the record demonstrates that the denial of relief was not based upon the discretion of the trial judge, but was based upon the merits of the controversy. On May 31, 1951, a simple minute order sustaining the demurrer was filed. On June 1, 1951, the trial court filed a formal order sustaining the demurrer. This order is, in fact, a detailed opinion fully disclosing the reasons why, in the opinion of the judge, the demurrer should be sustained. That opinion fully and fairly discloses that relief was denied on the merits, and not in the exercise of any discretion. While a trial judge may deny relief in his discretion, it cannot be inferred that such discretion has been exercised where the trial judge, by opinion, fully discloses that he did not exercise any discretion, but decided the case on its merits.

There are other answers to this contention. While appellant Collins asks for himself but $300 in monetary relief, it is obvious, and the complaint so alleges, that this is a class suit brought on behalf of some 7,835 other employees similarly situated. The amount in controversy far exceeds $300.

Moreover, this is not a simple action by Collins to recover a $300 judgment. He does not seek a judgment against anyone for that or any other sum. There is no prayer for money relief. What Collins seeks is an order compelling the controller to pay the proper salaries to him and to the other employees. This is either an equitable form of relief or a request for mandamus, which, in either event, is within the jurisdiction of the Superior Court, so that the question of the amount in controversy does not arise at all.

The last jurisdictional question raised by respondents is that a prior suit for a writ of mandate brought by another party to stop the election here involved, and which was denied by the Supreme Court without an opinion, is res judicata of the entire controversy. It appears that just prior to the referendum election, one Ivan Flamm, as a taxpayer, filed in the Supreme Court a petition for a writ of mandate against Thomas A. Toomey, as registrar of voters, seeking in that fashion to prevent the referendum. The petition was denied without opinion. It is now well settled that the denial of an application for a prerogative writ will not be considered to be a denial on the merits and so res judicata, if any other possible ground for denial exists. 'If there is any other possible ground other than the merits upon which the denial of the petition for a writ could have been based, such denial is not res judicata of the merits in a subsequent proceeding.' McDonough v. Garrison, 68 Cal.App.2d 318, 327, 156 P.2d 983, 988.

An examination of the Flamm petition discloses that it was filed by a taxpayer. Perhaps the Supreme Court, rightly or wrongly, believed that was not sufficient interest to warrant granting the writ. That alone presents a possible ground of denial that prevents such denial being res judicata in this proceeding.

Moreover, the same parties were not involved in the prior proceeding as are involved in the instant one. An examination of the Flamm record, of which we may take judicial notice--Corum v. Hartford Accident & Indemnity Co., 67 Cal.App.2d 891, 155 P.2d 710, discloses that Flamm was suing as a taxpayer and that the action was not a class action. In addition, it is doubtful if the defense of res judicata may be raised by demurrer. Normally, one relying on such a defense must plead it. See cases collected 15 Cal.Jur. p. 208, § 230.

For these, and other, reasons the Flamm proceeding cannot be held to be res judicata.

That brings us to the merits of this controversy--Is a salary standardization ordinance subject to a referendum under the San Francisco charter?

The state Constitution, Art. IV, § 1, provides, in part: 'The initiative and referendum powers of the people are...

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