Murphy v. Fong Shuck

Decision Date16 May 1957
Docket NumberNo. 17,17
CourtCalifornia Court of Appeals Court of Appeals
Parties, 32 Lab.Cas. P 70,765 Ambrose J. MURPHY, Individually and in a representative capacity for and on behalf of Retail Clerks International Association, an unincorporated association, and Retail Clerks International Association Local, an unincorporated association Local, an unincorporated association, v. FONG SHUCK and W. Shee Fong, Individually and as copartners, doing business as Park Grocery; Leland Lee and Jack Ng Wing, individually and as copartners doing business as Yuba Grocery; Hong Fay Wong and Gene Fong, individually and as copartners doing business as Linda Super Market; Yee Den, Lee Nam Kee, Lee Shew Nam, alias Sam Lee, Quong Lee Wah and Alvon Lee, individually and as copartners doing business as Sutter Super Market, also known as Sutter Market, Defendants and Respondents. Civ. 8968.

James F. Galliano and C. Paul Paduck, Oakland, for appellants.

Hewitt & McBride, Yuba City, Manwell & Manwell, Marysville, Gilford G. Rowland and George E. Paras, Sacramento, for respondents.

VAN DYKE, Presiding Justice.

This is an appeal from an order of the trial court entered in its minutes granting nonsuits as to various causes of action in a case based upon alleged violations of four separate collective bargaining agreements entered into by Retail Clerks International Association, hereinafter called the union, the copartnerships doing business as Park Grocery (hereinafter called Park), Yuba Grocery (hereinafter called Yuba), Linda Super Market (hereinafter called Linda), and Sutter Super Market (hereinafter called Sutter). The granting of the nonsuits left but three counts undetermined as to two defendants. The issues in these three counts were submitted to a jury, who returned verdicts in favor of the defendants involved.

When the appeal was called on the calendar of this court for argument, counsel for respondents orally moved the court to dismiss the appeal upon the ground that the orders entered in the clerk's minutes from which the appeal was specifically taken were not appealable orders, it appearing that no formal judgment based upon nonsuits had ever been entered in the cause.

As to the ground for dismissal urged upon the court, respondents' contentions cannot be sustained. An order granting a nonsuit duly entered in the minutes of the court, if it disposes of the action, amounts to a judgment of nonsuit from which an appeal will lie. Wulfjen v. Dolton, 24 Cal.2d 878, 879-880, 151 P.2d 840; Nicholson v. Henderson, 25 Cal.2d 375, 378, 153 P.2d 945. However, our review of the record has suggested the fundamental question whether the judgment or order appealed from or any judgment or order made is a final judgment within the meaning of the rule set forth in Code of Civil Procedure, Section 963, which provides that appeals may be taken only from final judgments and from certain other specific orders and decrees with none of which we are here concerned. The final judgment rule on appeals is a matter of statute in California, and our courts have consistently applied it. Since the issue is jurisdictional, it is incumbent upon this court to determine whether or not we have a final judgment in the case from which an appeal may be taken. This necessitates a review of the pleadings and of pertinent parts of the record.

The complaint contained twelve counts. Generally, it was alleged that the union is an unincorporated labor organization affiliated with the American Federation of Labor, which charters several hundred local unions in the United States and Canada, having a total membership of about 300,000; that Retail Clerks International Association Local No. 17, likewise an unincorporated association, is chartered by the union and acts as agent for the union in the counties of Sutter, Yuba, Butte, Glenn and Nevada; that members of the local are by virtue of that membership also members of the union; that plaintiff Ambrose J. Murphy is the financial secretary-treasurer of the local and is a member of the union by virtue of his membership in the local; that he brings the action in a representative capacity because the persons equally interested are numerous and it is impractical to bring them all before the court; that Park, Yuba, Linda and Sutter are partnerships, the individual defendants being members of one or more of the partnerships; that four separate collective bargaining agreements were executed between the union and the several partnerships, all of which run food stores in Yuba and Sutter Counties; that these written contracts were negotiated by the union with the several partnerships as bargaining agent for their union employees and provide a wage scale for each and all of the employees of the partnerships, who by the agreement undertook to pay the agreed wages and to grant other benefits to the employees covered; that the agreements were entered into for the benefit of the members of the union, particularly of those who were also members of the local union; that generally, and especially as to wages, hours and working conditions, the agreements were replicas of each other and also of a great number of other collective bargaining agreements entered into between the union and many competing employers operating food stores in the said counties; that each of the partnerships entered into its agreement with no intention of performing the same in respect to provisions for wages, hours and working conditions contained therein, but on the contrary each partnership intended to secretly and unlawfully pay their employees covered by the agreements a lesser remuneration than agreed, and to thereby defraud the employees and the union and other employers in the retail food industry in said counties who were parties to other collective bargaining contracts with the union providing for the same hours, wages and working conditions; that the partnerships having so contracted wilfully, maliciously and unlawfully put into effect and continued in effect a general and continuing agreement, scheme, conspiracy and combination amongst themselves, the substantial terms of which were to wilfully and unlawfully deprive their said employees of the benefits secured to them by the agreements; that in pursuance of said conspiracy, the partnerships induced, coerced and compelled their employees as a condition of employment to work overtime without receiving the agreed rate therefor and to lodge and board with the partnerships while submitting to arbitrary deductions therefor; that in further pursuance of said conspiracy, the partnerships instructed and required their employees under threat of discharge not to discuss with the representatives of the union their actual hours of work and actual wages received, and that the partnerships threatened their employees with discharge from employment and with blacklishing for employment by other Chinese merchants if they reported or complained to the union or to any governmental agency in respect to their wages and their working conditions; that the actions of the partnerships in coercing and compelling their employees to work for less wages than those arrived at through collective bargaining had imposed upon them terms and conditions of labor not from voluntary agreement but based upon the helplessness of the employees to exercise actual liberty of contract; that by their conduct the partnerships were enabled to and did withhold from their employees wages due them under the collective bargaining agreements and obtained for themselves an unfair and fraudulent advantage over their competitors operating under like agreements; that these actions of the partnerships and the concerted acts of all of them violated the provisions of Sections 223 and 226 of the Labor Code and constituted criminal offenses under Section 225 thereof; that the acts constituted deceitful practice and fraud in respect to the union and its members; that the direct and proximate result of the conduct of the partnerships and of their fraud, deceit and conspiracy caused damage to the union and to the members thereof, as follows: That each and all of the members of the union who performed...

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    • United States
    • California Court of Appeals Court of Appeals
    • October 22, 1965
    ...cases. See Daniels v. Daniels, 136 Cal.App.2d 224, 288 P.2d 910; Kennedy v. Kennedy, 130 Cal.App.2d 785, 279 P.2d 759; Murphy v. Fong Shuck, 151 Cal.App.2d 64, 311 P.2d 80.' The rule of Gombos was followed by the Supreme Court in Shepardson v. McLellan, supra, 59 Cal.2d 83, 27 Cal.Rptr. 884......
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    ...Ass'n v. Superior Court, 20 Cal.2d 697, 701, 128 P.2d 357; Mather v. mather, 5 Cal.2d 617, 618, 55 P.2d 1174; Murphy v. Fong Shuck, 151 Cal.App.2d 64, 69, 311 P.2d 80; 3 Cal.Jur.2d § 40, pp. 457-458; 28 Cal.Jur.2d § 73, p. 707. While a cause may proceed to separate judgments against persons......
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    • California Court of Appeals Court of Appeals
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    ...order fully disposed of the action and therefore amounts to a judgment of nonsuit from which an appeal will lie. Murphy v. Fong Shuck, 151 Cal.App.2d 64, 65, 311 P.2d 80; Budrow v. Wheatcraft, 115 Cal.App.2d 517, 522, 252 P.2d 637; see Sheta v. Grahm, 156 Cal.App.2d 77, 79, 318 P.2d A nonsu......
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