Holden v. California Employment Stabilization Commission

• Decision Date: 27 December 1950
• Citation: 225 P.2d 634,101 Cal.App.2d 427
• Court: California Court of Appeals Court of Appeals
• Parties: HOLDEN v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION et al. Civ. 14543.

Page 634

225 P.2d 634

101 Cal.App.2d 427

HOLDEN v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION et al.

Civ. 14543.

District Court of Appeal, First District, Division 1, California.

Dec. 27, 1950.

Charles P. Scully, San Francisco, for appellant.

Fred N. Howser, Atty. Gen. of the State of California, Charles W. Johnson, Deputy Atty. Gen., William L. Shaw, Deputy Atty. Gen., for respondents.

Brobeck, Phleger & Harrison, San Francisco, for respondent Bethlehem Alameda Shipyard, Inc.

PETERS, Presiding Justice.

Petitioner, in the trial court, filed a petition for a writ of mandate seeking a review of a decision of the California Unemployment Insurance Appeals Board (hereafter referred to as the Appeals Board) denying him unemployment benefits. Nine months later the respondents, who had filed returns to the alternative writ of mandate, moved to dismiss the petition on the ground that it was sham and vexatious. The motions to dismiss were granted by minute order and by formal judgments. Petitioner appeals.

There is some dispute as to whether petitioner has any valid appeal pending, and, if he has, as to who are the respondents. The following table sets forth the procedural background of the proceeding:

February 7, 1949--petitioner filed, in the trial court, his petition for a writ of mandate and the alternative writ issued. Named as respondents were the Appeals Board and its members, the California Employment Stabilization Commission, and its members (hereafter referred to as the Commission), the State Director of Employment, and Bethlehem-Alameda Shipyard, Inc. (hereafter referred to as Bethlehem).

April 4, 1949--Bethlehem filed its return by way of answer.

April 6, 1949--the other respondents filed as their return a general and special demurrer and answer. The demurrer was later overruled.

November 3, 1949--the respondents, other than Bethlehem, filed a motion to dismiss the petition upon the ground that 'the petition is fictitious, groundless, vexatious, sham, annoying and harassing.' Bethlehem filed a separate and similar motion the same day. The motion filed by the respondents, other than Bethlehem, was supported by affidavit, and petitioner filed a counter-affidavit.

December 12, 1949--the trial court by minute order granted both motions to dismiss. This minute order did not recite that it was to be followed by a formal order or judgment.

December 14, 1949--a formal judgment was entered in favor of the respondents other than Bethlehem, the latter being expressly excluded from this judgment.

December 15, 1949--for some reason not entirely clear, a formal order granting the motion to dismiss of the respondents, other than Bethlehem, was entered. This order specifically excluded Bethlehem from its operation.

December 16, 1949--petitioner filed his notice of appeal, the notice stating that the appeal was 'from the judgment entered * * * on the 14th day of December, 1949, in favor of the respondents and against the petitioner, and from each and every portion of that judgment.' This notice was addressed to all respondents and to their attorneys, including respondent Bethlehem, but the appeal is from a judgment that specifically excludes Bethlehem. This is the only notice of appeal that has been filed.

December 22, 1949--a formal order and a judgment granting Bethlehem's motion to dismiss were filed.

The question immediately presented is whether there is any appeal at all pending. The minute order of December 12, 1949, dismissing the petition, was an appealable order. Boyer v. City of Long Beach, 47 Cal.App. 617, 618, 191 P. 35. This is conceded by all the parties to this appeal. Since that order did not provide that it was to be followed by a formal order or judgment, the appeal should have been taken from the minute order and not from the judgment. The judgment of December 14, 1949, was functus officio, and no valid appeal could be taken from that judgment. Gwinn v. Ryan, 33 Cal.2d 436, 438, 202 P.2d 51; Nealis v. Carlson, 98 Cal.App.2d 65, 219 P.2d 56; Pessarra v. Pessarra, 80 Cal.App.2d 965, 966, 183 P.2d 279; Rules on Appeal, Rule 2(b)(2). Predicated upon this analysis, Bethlehem contends that no appeal at all is pending, and certainly no appeal as against it. The Attorney-General, representing all respondents, other than Bethlehem, concedes that the appeal is effective as to his clients, and expresses the belief that the appeal is also effective as to Bethlehem.

It will be noted that the notice of appeal was filed within four days of the entry of the appealable order of December 12th, and within two days of the entry of judgment. Thus, the appeal was filed well within the time prescribed by Rule 2(a)--within 60 days from the date of the entry of the order or judgment. It will also be noted that the notice of appeal was addressed to all respondents, including Bethlehem, and to their counsel. Although the notice of appeal refers to the judgment of December 14th as the judgment appealed from, the intent of appellant to seek a review of the action of the trial court in dismissing his petition is crystal clear. No one connected with this appeal was or could have been misled by the misdescription of the order of December 12th as the judgment of December 14th.

Notices of appeal, of course, are to be liberally construed to permit, if possible, a hearing on the merits. It has been held that a misdescription of an 'order' as a 'judgment,' or vice versa, will not invalidate a notice of appeal. Seven Up Bottling Co. v. Grocery Drivers Local Union, 97 Cal.App.2d 623, 218 P.2d 41; Crane v. Livingston, 98 Cal.App.2d 699, 220 P.2d 744; Kellett v. Marvel, 6 Cal.2d 464, 471, 58 P.2d 649. An incorrect date in the notice of appeal will not necessarily invalidate it. Title Guarantee & Trust Co. v. Lester, 216 Cal. 372, 374, 14 P.2d 297. Even closer to the present case is Estate of Stone, 173 Cal. 675, 161 P. 258, where the notice of appeal referred to a 'judgment on the verdict' entered on a certain date, and the only appealable judgment was one of a later date--in fact, entered four days after the notice of appeal was filed. The court held, 173 Cal. at page 677, 161 P. at page 259, that, although there was, as here, an incorrect designation of the proceeding appealed from and a wrong date, the appeal was effective.

Rule 2(b)(2) was intended to clarify the law for the benefit of practicing attorneys, not to constitute a trap for the unwary or inexperienced. 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.

On the merits, it is quite clear that the trial court erroneously dismissed the petition for a writ of mandate.

The petition for mandate was filed February 7, 1949. It discloses that petitioner was a member of a designated union and worked for Bethlehem until October 29, 1945; that thereafter members of his union were unable to work because of a trade dispute between Bethlehem and another union; that the Commission held that members of petitioner's union were not entitled to unemployment benefits; that petitioner's local union thereupon perfected an appeal to the Appeals Board on behalf of its members; that on such appeal it was held that the members of petitioner's union were entitled to unemployment benefits; that the Appeals Board has ruled that petitioner is not entitled to the benefits of that decision because his name was inadvertently omitted from the list of the litigants. The key allegations, so far as the present appeal is concerned, are as follows:

'That it had been agreed by the Department, by and through the Director, that any individual who was a member of Local 9 and whose name was omitted by error or mistake from the master list attached to such group appeal, would be treated in an identical manner with all those members of said Local 9 included in said group appeal, namely Case No. 5252;

'That through error the name of petitioner was omitted from the master list in said group appeal and that although petitioner relied upon the representation of the Director hereinabove mentioned, contrary to such representation petitioner was not similarly treated but on the contrary was denied benefits, with the result that his reliance upon such representation caused him irreparable damage.'

It is also alleged that petitioner, upon discovering the omission of his name, attempted to perfect his appeal from the decision denying him benefits, but that such benefits were denied him; that an appeal was taken to a referee who reversed the department and directed that benefits be paid; that the Appeals Board reversed the referee.

The opinion of the Appeals Board is attached to the petition as an exhibit. From that opinion it appears that petitioner filed a claim for benefits on November 23, 1945, which was denied on December 21, 1945. Notice of this denial was mailed to petitioner, and he admits receipt of this notice. This notice, among other things, informed petitioner that he must appeal to a referee within seven days of the receipt of this notice. It is admitted that within this seven-day period petitioner went to the office of his labor union and signed a form designated as a blanket appeal. The union perfected the group appeal on behalf of its members, but petitioner's name was inadvertently omitted. The Appeals Board decided that the union...