Morrissey v. City and County of San Francisco

• Decision Date: 15 December 1977
• Citation: 142 Cal.Rptr. 527,75 Cal.App.3d 903
• Court: California Court of Appeals Court of Appeals
• Parties: Mary M. MORRISSEY, on behalf of herself and all other civil service employees of the City and County of San Francisco similarly situated, Plaintiff and Appellant, v. The CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. Civ. 39749.

Page 527

142 Cal.Rptr. 527

75 Cal.App.3d 903

Mary M. MORRISSEY, on behalf of herself and all other civil service employees of the City and County of San Francisco similarly situated, Plaintiff and Appellant, v. The CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

Civ. 39749.

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

Dec. 15, 1977.

Hearing Denied Feb. 9, 1978.

Edward J. Radlo, John J. Morrissey, Edward H. Berkowitz, Palo Alto, for plaintiff and appellant.

Thomas M. O'Connor, City Atty., Donald M. Solomon, Deputy City Atty., San Francisco, for defendant and respondent.

ELKINGTON, Associate Justice.

During the period March 13, 1970, through March 16, 1970, many civil service employees engaged in a strike against the City and County of San Francisco (City), a charter city. The City thereafter denied its employees "sick leave with pay" during the period of the strike, except upon "a physician's written certificate stating that the physician had personally examined the employee for each day of absence . . . ."

Plaintiff Morrissey was a civil service employee of the City. "On Friday, March 13, 1970 and again on the following Monday, March 16, 1970, plaintiff took sick leave . . . ." She did not furnish the City a "physician's written certificate" in relation to her "sick leave," and she therefore did not receive her salary for the days of her absence.

On January 7, 1971, plaintiff Morrissey filed an action against the City with the following plaintiff's entitlement: "Mary M. Morrissey, a Civil Service employee of the City and County of San Francisco, on behalf of herself and all other Civil Service employees of the City and County of San Francisco similarly situated, . . ." She alleged therein: "Plaintiff is a member of the class which comprises all Civil Service employees of the City and County of San Francisco who were denied sick leave with pay for the period from March 13, 1970 through March 16, 1970, and her interests are affected in the same manner as the interests of all other members of said class." By the action she sought recovery of "the number of days wages withheld (by the City from each) member of the class," including herself, and of "a reasonable attorney's fee."

Thereafter, April 17, 1975, plaintiff Morrissey filed "Plaintiff's Motion for Certification as a Class Action (Motion for Summary Judgment as to whether Action may be maintained as a class action)." Following hearing on the motion the superior court, July 29, 1975, filed its "Order Denying Plaintiff's Motions for Certification as a Class Action and for Summary Judgment." It provided, as relevant:

"It is Ordered:

"1. Plaintiff's motion to certify this suit as a class action is denied on the grounds that there is an insufficient community of interest in questions of law and fact which would support a class action and further that plaintiff has failed to seek class action status as soon as practicable after commencement of this action as required by Rule 23(c)(1) of the Federal Rules of Civil Procedure.

"2. Plaintiff's motion for summary judgment is denied."

No appeal was taken from that order.

Thereafter, June 8, 1976, following a trial in which the superior court apparently treated plaintiff Morrissey as the only plaintiff of the action, judgment was filed, "that plaintiff take nothing from the defendant . . . ." The appeal before us was taken by plaintiff Morrissey "on behalf of herself and all other civil service employees . . . similarly situated" from the June 8, 1976, judgment. ¹

Plaintiff Morrissey first contends error in the superior court's order of July 29, 1975, denying certification of her action as a class action. Responding, the City urges that the claimed error could, and should, have been reviewed on an appeal from that order, and that the contention may not now be considered on appeal from the judgment denying her, individually, any relief.

"The law of this state does not allow, on an appeal from a judgment, a review of any decision or order from which an appeal might previously have been taken. . . ." (Woodman v. Ackerman, 249 Cal.App.2d 644, 648, 57 Cal.Rptr. 687, 690; to the same effect see Mohn v. Tingley, 191 Cal. 470, 492, 217 P. 733; Ferraro v. Pacific Fin. Corp., 8 Cal.App.3d 339, 355-356, 87 Cal.Rptr. 226; Brown v. Memorial Nat. Home Foundation, 158 Cal.App.2d 448, 456, 322 P.2d 600, cert. den., 358 U.S. 943, 79 S.Ct. 353, 3 L.Ed.2d 352; West v. Parker, 97 Cal.App.2d 286, 291, 217 P.2d 473; Weber v. Marine Cooks' & Stewards' Ass'n, 93 Cal.App.2d 327, 339, 208 P.2d 1009; Weygandt v. Larson, 130 Cal.App. 304, 310, 19 P.2d 852; Code Civ.Proc., § 906, last sentence.) The instant issue may therefore be condensed to the question whether an appeal lay from the July 29, 1975, order denying plaintiff Morrissey's motion to certify her action as a class action.

In Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, an order of the superior court had decided, in effect, that a named plaintiff "could neither maintain a class action . . . nor state a cause of action" for damages greater than suffered by himself alone. At issue in the high court was the determination whether the order was appealable as a "final judgment" under Code of Civil Procedure section 963 which then permitted an appeal "from a final judgment entered in an action, . . ." The court stated (pp. 698-699, 63 Cal.Rptr. p. 727, 433 P.2d p. 735) "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, but what is its legal effect. . . .' . . . Although an order sustaining a demurrer with or without leave to amend is not the final judgment in the case . . . and is nonappealable . . . 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' . . . the order is tantamount to a dismissal of the action as to all members of the class other than plaintiff. . . . 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.' . . . We conclude that the order in the case at bench is in legal effect a final judgment from which an appeal lies . . . ."

Following the rationale and holding of Daar v. Yellow Cab Co., it has now been consistently held that an order, whatever form it may take, which has the effect of denying certification as a class action, is an appealable order. (Wilson v. San Francisco Fed. Sav. & Loan Ass'n, 62 Cal.App.3d 1, 3, 132 Cal.Rptr. 903; McGhee v. Bank of America, 60 Cal.App.3d 442, 445, 131 Cal.Rptr. 482; Santa Barbara Optical Co. v. State Bd. of Equalization, 47 Cal.App.3d 244, 246, fn. 1, 120 Cal.Rptr. 609; Wechsler v. Laskey-Weil, Inc., 42 Cal.App.3d 728, 729, 117 Cal.Rptr. 237; Hebbard v. Colgrove, 28 Cal.App.3d 1017, 1021, 105 Cal.Rptr. 172; Slakey Brothers Sacramento, Inc. v. Parker, 265 Cal.App.2d 204, 205-206, fn. 1, 71 Cal.Rptr. 269.)

Nothing is seen in Occidental Land, Inc. v. Superior Court, 18 Cal.3d 355, 134 Cal.Rptr. 388, 556 P.2d 750, tending to impugn Daar v. Yellow Cab Co. and its lineal authority. In Occidental Land, Inc. v. Superior Court the trial court had certified the action as a class action. Thereafter the defendant, seeking to overturn that ruling, "filed a motion for an order determining that the action is not a proper class action." (P. 359, 134 Cal.Rptr. p. 390, 556 P.2d p. 752.) The motion was denied and the defendant sought review by mandate proceedings in the high court. In those proceedings the plaintiff argued preliminarily "that defendant was guilty of laches in making the motion to decertify almost 18 months after the initial ruling." (P. 360, 134 Cal.Rptr. p. 390, 556 P.2d p. 752.) Finding the contention invalid, the court said: "Our decisions clearly contemplate the possibility of successive motions concerning certification. In Vasquez (Vasquez v. Superior Court, 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964), we recognized that the courts should retain flexibility in the trial of a class action, for 'even after an initial determination of the propriety of such an action the trial court may discover subsequently that it is not appropriate.' " (P. 360, 134 Cal.Rptr. p. 390, 556 P.2d p. 752.)

The context of Occidental Land, Inc. v. Superior Court may be likened to the continuance of an action after the trial court has overruled a general demurrer. Despite that ruling the court may...