Ponce-Bran v. Trustees of Cal. State University

• Decision Date: 29 August 1996
• Docket Number: P,No. C021698,PONCE-BRA,C021698
• Citation: 56 Cal.Rptr.2d 358,48 Cal.App.4th 1656
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 6532 Marco A.laintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, Defendant and Respondent.

Page 358

56 Cal.Rptr.2d 358

48 Cal.App.4th 1656, 96 Cal. Daily Op. Serv. 6532

Marco A. PONCE-BRAN, Plaintiff and Appellant, v. TRUSTEES OF the CALIFORNIA STATE UNIVERSITY AND COLLEGES, Defendant and Respondent.

No. C021698.

Court of Appeal, Third District, California.

Aug. 29, 1996.

Rehearing Denied Sept. 24, 1996.

Review Denied Dec. 11, 1996.

[48 Cal.App.4th 1657] Marco Ponce-Bran, in Pro. Per.

Daniel E. Lungren, Attorney General, Darryl L. Doke, Supervising Deputy Attorney General, Corinne Lee Murphy, Deputy Attorney General, for Defendant and Respondent.

DAVIS, Associate Justice.

The trial court denied the motion of pro per plaintiff Marco A. Ponce-Bran for appointment of counsel pursuant to 42

U.S.C. section 2000e-5, subdivision (f)(1) ¹ in this employment discrimination action. The plaintiff appealed. Determining that an appeal does not lie from the order, we shall dismiss.

BACKGROUND

The plaintiff commenced this action in 1991. In his second amended complaint filed in November of that year, he alleged employment discrimination based on a provision in the memorandum of understanding with defendant Trustees of the California State University and Colleges (Trustees) which "mandated the use of invalid student ratings" of his teaching performance as a temporary lecturer. He alleged bias on the basis of "race, color, ancestry, and ethnic origin [sic ]" in relying on these "invalid student ratings to deny him employment, despite outstanding job performance...." He also claimed there were materials in his personnel file which "showed plaintiff to be an undocumented alien...." The first three "causes of action" asserted liability under the Fair Employment and Housing Act (Gov.Code, § 12940 et seq.) and the common law; the plaintiff premised the fifth "cause of action" on Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).

Following a demurrer, the trial court struck the fourth cause of action as duplicative and dismissed several of the individual defendants from the lawsuit. We denied the plaintiff's writ (Ponce-Bran v. Superior Court (Mar. 12, 1992) C012979) and dismissed his subsequent appeal as being from a nonappealable order and untimely (Ponce-Bran v. Pete Wilson etc. (June 25, 1992) C013232).

Almost a year later, the plaintiff requested the court to appoint counsel pursuant to 42 U.S.C. § 2000e-5. Defendant Trustees did not "technically" oppose the motion (citing Bradshaw v. Zoological Soc. of San Diego (9th Cir.1981) 662 F.2d 1301, 1309, fn. 20, which stated an opponent has no legitimate interest in arguing against the appointment of counsel), but pointed out that the plaintiff had been issued a "right to sue" letter by the Department of Fair Employment and Housing which stated his discrimination claims Other defendants then successfully moved for summary judgment in August 1993. The plaintiff appealed from the order granting summary judgment. In November 1993, we dismissed his appeal from the order because of the lack of a final judgment. (Ponce-Bran v. California Faculty Association (Nov. 23, 1993) C016703.)

lacked merit. The court denied the motion and the plaintiff appealed.

Missing the procedural obstacle to plaintiff's appeal which we will address hereafter, we reversed in March 1994 an order denying appointment of counsel, finding it unclear whether the trial court had found that the plaintiff failed to satisfy the criteria for appointment of counsel pursuant to Title VII (Bradshaw, supra, 662 F.2d at p. 1318) or had instead denied the motion because of concerns regarding the coercion of an attorney to represent an indigent civil litigant. We directed the trial court to determine the Bradshaw criteria expressly. (Ponce-Bran v. Trustees of the California State Universities and Colleges (Mar. 28, 1994) C015821.)

Almost a year after we issued our remittitur, the plaintiff renewed his motion for appointment of counsel. He appended a substantial amount of new material to his motion. Defendant Trustees (the sole remaining defendant) again did not technically oppose the motion, but continued to suggest the facts showed that the plaintiff's case lacked merit. They also moved to strike all hearsay evidence proffered in support of the motion. The trial court first determined its prior ruling had not reached the merits of the plaintiff's discrimination claims. Turning to the merits,

"The Court ... notes that in the voluminous Exhibits that Plaintiff has presented there are many which would properly be excluded on grounds of relevancy, and some which would be excluded for lack of the establishment of a proper foundation. In this de novo determination, the Court might quite properly sustain the objection to Plaintiff's earlier declaration regarding alleged statements by the persons associated with DFEH, and rely upon the No Merit determination by that administrative agency. In the interest of ultimate judicial economy in the event that such a determination be violative of the law of the case, the Court declines to do so; and determines that the objection will be considered as bearing upon weight rather than admissibility. [p] With that exception, the Court sustains the hearsay objection regarding documentation where applicable. Assuming even that all of it were admissible, the Court has been unable to discern any credible or viable theory whereby Plaintiff on the contended facts would recover under the FEHA, 42 U.S.Code section 1983, Title VII, RICO, or the Common Law. [p] Plaintiff has failed to persuade the Court that his claims have some merit in fact and law or that he has some chance of prevailing on his claims."

The plaintiff filed his notice of appeal in timely fashion.

DISCUSSION

Perhaps because the Trustees have not actively opposed the plaintiff's motion for appointment of counsel, the issue of the appealability of the order denying the motion did not arise in our prior appeal. ² However, in our independent research in connection with 42 U.S.C. section 2000e-5, we discovered the issue of the appealability of orders Under federal law, determining the appealability of orders denying the appointment of counsel in civil cases involves wrestling with the application of criteria established by the Supreme Court in Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 and Cohen v. Beneficial Industrial Loan Corp. (1949) 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 for determining whether interlocutory orders are "final decisions of the district courts" as prescribed by the statute conferring appellate jurisdiction (28 U.S.C. § 1291). The Ninth Circuit has itself resolved the issue differently in the context of litigants invoking 42 U.S.C. section 2000e-5 (Bradshaw, supra, 662 F.2d at p. 1320; maj. opn. of Reinhardt, J. [appealable]; but see id. at pp. 1320-1324 [dis. opn. of Wallace, J.] ) and litigants invoking the general authorization for courts to appoint counsel in civil cases under 28 U.S.C. section 1915 (Kuster v. Block (9th Cir.1985) 773 F.2d 1048 [nonappealable] ). The Supreme Court has not resolved the issue, as former Justice White has noted in dissent from denial of certiorari. (See Welch v. Smith (1987) 484 U.S. 903, 108 S.Ct. 246, 98 L.Ed.2d 203 [28 U.S.C. § 1915]; Henry v. City of Detroit Manpower Dept. (1985) 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 [42 U.S.C. § 2000e-5].)

denying the appointment of counsel in civil cases is a question which has divided the federal Courts of Appeals. (See tabulations in Lariscey v. United States (Fed.Cir.1988) 861 F.2d 1267, 1269; Hodges v. Department of Corrections (11th Cir.1990) 895 F.2d 1360, 1361 & fn. 4.) This raised the question for us of whether the present order is appealable. We thus afforded the parties the opportunity to address this issue in supplementary briefing. We conclude we are without jurisdiction and will dismiss the appeal.

It is, however, of no value in the present case to analyze the various viewpoints at length. California has different standards for determining the appealability of collateral orders (Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 160-161, 8 Cal.Rptr. 107), which it may apply even to federal law causes of action. (Samuel v. Stevedoring Services (1994) 24 Cal.App.4th 414, 422-424, 29 Cal.Rptr.2d 420.) We limit our analysis accordingly.

"Normally, there can be no direct appeal except from a final judgment. An exception to this rule is the collateral order doctrine which has been described by the California Supreme Court as follows: 'An appeal is allowed if the order is a final judgment against a party in a collateral proceeding growing out of the action.... It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by [an] appellant or the performance of an act by or against [the appellant]....' [I]f the order does not direct payment of money or performance of an act, it is not appealable except after a judgment." (Samuel, supra, 24 Cal.App.4th at pp. 417-418, 29 Cal.Rptr.2d 420; accord Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119, 199 P.2d 668.) ³

Thus, while the present order may be collateral to the main action, and may be a final resolution of the issue, it does not order the plaintiff to pay money, nor does it require him to act or to refrain from acting. Consequently, it is not appealable.

Although we have the authority to treat an infirm appeal as a writ, appellate courts exercise this power only sparingly in extraordinary circumstances where the parties have stipulated to the procedure; "[o]therwise, the device of filing an unauthorized appeal followed by such a stipulation would inundate this court with piecemeal appeals." (DeGrandchamp v. Texaco, Inc. (1979) 100 Cal.App.3d 424, 437, 160 Cal.Rptr. 899; accord Olson v. Cory (1983) 35 Cal.3d 390, 400-401, 197 Cal.Rptr. 843, ...