Shelley v. City of Los Angeles

• Decision Date: 07 July 1995
• Docket Number: No. B074981,B074981
• Citation: 42 Cal.Rptr.2d 529,36 Cal.App.4th 692
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 5352, 95 Daily Journal D.A.R. 9103 Thomas SHELLEY, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

Page 529

42 Cal.Rptr.2d 529

36 Cal.App.4th 692, 95 Cal. Daily Op. Serv. 5352,

95 Daily Journal D.A.R. 9103

Thomas SHELLEY, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

No. B074981.

Court of Appeal, Second District, Division 4, California.

July 7, 1995.

Vogt & Resnick, James D. Vogt, Newport Beach and William A. Kent, Irvine, for plaintiff and appellant.

James K. Hahn, City Atty. of Los Angeles, Thomas C. Bonaventura, Chief Asst. City Atty., and Shelley I. Smith, Asst. City Atty., for defendant and respondent.

ARLEIGH M. WOODS, Presiding Justice.

Plaintiff and appellant Thomas Shelley appeals seeking review of a class certification order on the ground that a broader class should have been included. Because we believe that an order partially certifying a class is not a final judgment and therefore not appealable, we dismiss.

I

In May of 1986, appellant was cited for allegedly parking in a "no parking" zone, which resulted in his car being towed and impounded by an independent tow service working for defendant and respondent City of Los Angeles ("the City"). He believed the citation was unwarranted, and sought a hearing. An employee of the Los Angeles Department of Transportation presided at the hearing provided. This procedure, appellant argues, was in violation of Los Angeles Municipal Code section 80.77.1, which at the relevant time ¹ stated: "Hearing officers shall be appointed by the City and shall not be City officials, officers, or employees."

After the hearing officer found probable cause for issuance of the citation, appellant filed a lawsuit on behalf of himself and all others similarly situated "who have likewise had their motor vehicles towed and who were not afforded the opportunity to contest the towing in compliance with the applicable City Ordinance, aforesaid, or as required by the California Constitution, Article I, Section 7." ² According to the complaint, the hearing officer utilized the wrong burden of proof and inappropriately contacted witnesses and reviewed documentary evidence outside of the hearing room and appellant's presence. Appellant also contends he was entitled to certain due process rights, and the City was obliged to give advance notice of all such rights. These rights are identified in the complaint as: "the right to confront his accusers," "the right [to] cross-examination," the right to "say nothing until the City proved its case," the right to "request the impound employee to appear at the hearing," and the "right to receive a summary of the evidence taken at the hearing."

On appellant's motion, the trial court certified a class consisting of "all persons and entities who had their motor vehicles towed by the City of Los Angeles from March 5, 1984 to October 21, 1988 and who were not afforded a hearing to contest the towing in compliance with Los Angeles Municipal Code § 80.77.1. This class is limited to those persons who requested a hearing and who did not receive a hearing required by the Municipal Code § 80.77.1 and who did not prevail at the hearing nor obtain recovery of their towing and storage charges." (Italics added.) Appellant brought this appeal, ³ protesting the limitation imposed by that last sentence, and contending that the class should consist of all persons who had their vehicles towed during the relevant time frame, whether or not they requested a hearing. According to appellant, the intended class would have had 247,000 members, while the certified class is limited to 469.

The first question which we must address is whether the appeal was taken from a final, appealable order. As we believe an order certifying a partial class is not such an order, and dismiss the appeal, we do not reach the other issues raised by appellant.

II

The Supreme Court held in Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, that an order denying a class certification motion in its entirety, and preserving for the plaintiff alone his cause of action for damages, "is tantamount to a dismissal of the action as to all members of the class other than plaintiff." (67 Cal.2d. at p. 699, 63 Cal.Rptr. 724, 433 P.2d 732.) Such an order "is in legal effect a final judgment from which an appeal lies ..." because it "virtually demolishe[s] the action as a class action" and " 'prevents further proceedings as effectually as would any formal judgment.' " (Ibid.) This is generally known as the "death knell" doctrine, and was reaffirmed in Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 174 Cal.Rptr. 515, 629 P.2d 23, in which the court held: "A decision by a trial court denying certification to an entire class is an appealable order." ⁴ Indeed, several cases hold that the failure to seek immediate appeal from denial of class certification is an abandonment of the issue, and cannot be rectified by an appeal after judgment. (Stephen v. Enterprise Rent-A-Car (1991) 235 Cal.App.3d 806, 811, 1 Cal.Rptr.2d 130; Guenter v. Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465, 189 Cal.Rptr. 470; Morrissey v. City and County of San Francisco (1977) 75 Cal.App.3d 903, 908, 142 Cal.Rptr. 527.)

The case before us presents a different issue, however, the appealability of an order granting class certification but limiting or restricting the class. Although the Supreme Court has not confronted this issue directly, in Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964, where the order at issue certified a class for purposes of pursuing one cause of action but not another, it was held: "plaintiffs may not appeal from the trial court's judgment dismissing their first cause of action as a class action because such a course would violate the rule that an appeal may be taken only from a final judgment." (4 Cal.3d at p. 806, 94 Cal.Rptr. 796, 484 P.2d 964.) To the same effect was the court's holding in Green v. Obledo (1981) 29 Cal.3d 126, 172 Cal.Rptr. 206, 624 P.2d 256. There plaintiffs had failed to appeal from an order partially decertifying their class until after the entire action had been resolved, and defendants moved to dismiss the appeal on grounds of untimeliness. The court held that "the order of partial decertification was not 'tantamount to a dismissal of the action as to all members of the class,' and was not directly appealable." (29 Cal.3d at p. 149, fn. 18, 172 Cal.Rptr. 206, 624 P.2d 256, citing Vasquez v. Superior Court, supra, 4 Cal.3d at pp. 806-807, 94 Cal.Rptr 796, 484 P.2d 964.) In both cases, Daar was distinguished.

In General Motors Corp. v. Superior Court (1988) 199 Cal.App.3d 247, 244 Cal.Rptr. 776, the appellate court concluded that an order certifying a statewide class, rather than the requested nationwide class, was not appealable in that the order "does not have what has come to be known as the 'death knell' effect of making further proceedings in the action impractical because of denial of class action status." (Id. at p. 251, 244 Cal.Rptr. 776.) The court's discussion of the detriment which would result from allowing piecemeal appeal of every order concerning the composition of a class is equally apt here: "To allow an appeal as a matter of right from each detail of a class certification order would delay trials and vex litigants with multiple proceedings. The detriment of delay and increased costs in pursuing the litigation far outweighs any benefit to the parties of an early determination of a minor correction in a certification order. Allowing such appeals would also have a debilitating effect on judicial administration by injecting appellate courts into the day to day proceedings of trial court law and motion departments and by causing delay in determination of appeals from final judgments in the appellate courts." (Id. at p. 252, 244 Cal.Rptr. 776.)

We agree with the holding in General Motors. ⁵ An order certifying a class is subject to modification at any time, and is appealable after final judgment. (Occidental Land, Inc. v. Superior Court...