Steen v. Fremont Cemetery Corp., H008432

• Decision Date: 27 August 1992
• Docket Number: No. H008432,H008432
• Court: California Court of Appeals Court of Appeals
• Parties: Nellie STEEN, et al., Plaintiffs and Respondents, v. FREMONT CEMETERY CORPORATION, Defendant and Appellant.

Page 780

11 Cal.Rptr.2d 780

9 Cal.App.4th 1221

Nellie STEEN, et al., Plaintiffs and Respondents, v. FREMONT CEMETERY CORPORATION, Defendant and Appellant.

No. H008432.

Court of Appeal, Sixth District, California.

Aug. 27, 1992.

Review Denied Nov. 18, 1992.

George E. Murphy, Debora K. Dragland, Steven H. Gurnee, and Bolling, Walter & Gawthrop, Sacramento, for defendant and appellant.

Kevin J. McInerney, Crane & McInerney, San Diego, John G. Tyndall III, and Tyndall and Cahners, San Jose, for plaintiffs and respondents.

PREMO, Associate Justice.

Fremont Cemetery Corporation appeals from an order directing service of notice of class action to the members of respondent class, and allocating the cost of preparing such notice between appellant and respondent class in the manner specified in the order. Subsequent to the filing of the appeal, respondents Nellie Steen, Christine Scofield, Nanci McCall, Paul Johnson, Marie Metcalf, Joseph Mario Rico III, Leticia Rico, and Constance M. Pearson, filed a motion to dismiss the appeal. For reasons stated, we grant respondents' motion and, accordingly, dismiss the appeal.

BACKGROUND

On January 17, 1987, respondent class filed against appellant and other defendants a complaint for damages for wrongful cremation practices. By the time of this appeal, the complaint had been amended five times. ¹

As amended, the complaint alleged, inter alia, that appellant operated Cedar Lawn Memorial Park (hereafter, Cedar Lawn), and that Cedar Lawn employed cremation processes and practices which resulted in the mishandling and improper disposition of the remains of thousands of decedents. As causes of action, the fifth amended complaint alleged: (1) breach of contract; (2) breach of fiduciary duty; (3) fraud and deceit; (4) negligent misrepresentation; (5) intentional mishandling of remains; (6) negligent mishandling of remains; (7) conspiracy to defraud; and (8) conspiracy to mishandle remains.

In May 1990, respondent class filed a motion to certify the lawsuit as a class action pursuant to Code of Civil Procedure section 382. ² The court granted the motion on July 3, 1990.

In March 1991, the court issued the order for service of notice to the members of the respondent class. Appellant was to deliver to Gilardi & Co. (hereafter, Gilardi) its files on cremated decedents, and Gilardi was to send out the notice by mail. In pertinent part, the order reads: "The defendant Fremont Cemetery Corporation is directed to have their files on cremated decedents at hand and ready to be delivered in segments to Gilardi & Co. by April 1, 1991. These original decedent files of Fremont Cemetery Corporation shall be delivered to Gilardi & Co. starting with those for the calendar years of 1974 through 1976 and progressing chronologically thereafter. It will be the responsibility of counsel for Fremont Cemetery Corporation to insure that the delivery of decedent files is accomplished in a manner which does not slow down the processing work of Gilardi & Co. and the notice procedure contemplated by this Order.... The cost of maintaining such an observer is solely that of the defendant Fremont."

The order also directed Gilardi "to promptly prepare a computer listing of all decedents and the names and addresses of their 7100 representatives.... The cost of the preparation of this list shall be borne by the plaintiff class. As further data is brought to the attention of Gilardi & Co. In addition to direct mailing by Gilardi, further notice was to be provided by the counsel for respondent class who was directed "to publish in the San Jose Mercury and the San Francisco Chronicle on at least two occasions ... a notice in substantially the same form." The court reserved the right to "direct further published notice depending upon its evaluation of the success of the direct mailings." Further, the court stated its intent "to review the progress of the notice process at its periodic status conferences."

such as corrected addresses or corrected names of the Section 7100 holders, that data shall be input into the computer listing."

Appellant appeals from this order, contending that it is an appealable collateral final order.

On May 24, 1991, respondent class moved to dismiss appellant's appeal. We resolved to consider that motion together with the merits of this appeal.

DISCUSSION

Appealability of Notice Order

It is fundamental that "[t]here is no constitutional right to an appeal; the appellate procedure is entirely statutory and subject to complete legislative control." (Trede v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745.) " '[N]o judgment or order is appealable unless expressly so declared, i.e., unless it comes within one of the classes enumerated in the main statutes or is made appealable by a specific statute....' [Citations.]" (Caruso v. Snap-Tite, Inc. (1969) 275 Cal.App.2d 211, 213, 79 Cal.Rptr. 642.)

In California, appeals in civil matters from the superior court are limited to the judgments and orders enumerated in section 904.1. That section codifies the so-called "one final judgment rule," pursuant to which "[o]nly final judgments are appealable...." (Day v. Papadakis (1991) 231 Cal.App.3d 503, 507, 282 Cal.Rptr. 548.) "The rule is premised on the theory that 'piecemeal disposition and multiple appeals tend to be oppressive and costly' [citation] and that 'informed, compact appellate review is best obtained by awaiting the entire action's coherent resolution in the trial court....' [Citation.]" (Ibid.)

There are, however, exceptions to the rule. One exception is "[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act...." (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368, 134 Cal.Rptr. 197, 556 P.2d 297.) In such a situation, direct appeal may be taken. (Ibid.) The reason for the exception is: "Such a determination is substantially the same as a final judgment in an independent proceeding. [Citations.]" (Ibid.)

Appellant contends that this exception applies to the present case. We disagree.

The notice order in this case is neither collateral nor final. A matter is collateral when it is "distinct and severable from the general subject of the litigation." (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 45, p. 69.) In Union Oil Co. v. Reconstruction Oil Co. (1935) 4 Cal.2d 541, 545, 51 P.2d 81, the court stated that the test is whether an order is "important and essential to the correct determination of the main issue." If the order is "a necessary step to that end," it is not collateral. (Ibid.; accord Meehan v. Hopps (1955) 45 Cal.2d 213, 217, 288 P.2d 267.)

In the instant case, the notice order directs appellant "to have their files on cremated decedents at hand and ready to be delivered to Gilardi & Co." The purpose of the delivery is to allow Gilardi to "promptly prepare a computer listing of all decedents and the names and addresses of their 7100 representatives." When those representatives are ascertained, Gilardi is to mail to them the notice of class action, together with the biographical questionnaire that appellant suggested should be included.

Service of the notice is thus a necessary step for the trial court here to proceed with the action. Without the class members being notified, no final disposition of the action is possible.

Indeed, Civil Code section 1781, subdivision (d), makes such notice mandatory: "If the action is permitted as a class action, the court may direct either party to notify each member of the class of the action." Moreover, under subdivision (e) of the same Civil Code section, "[t]he notice required by subdivision (d) shall include the following: [p] (1) The court will exclude the member notified from the class if he so requests by a specified date. [p] (2) The judgment, whether favorable or not, will include all members who do not request exclusion."

Since the judgment in a class action binds only those class members who had been notified of the action and who, being so notified, had made no request for exclusion, the notice requirement of Civil Code section 1781 is not only "important and essential to the correct determination of the main issue" (Union Oil Co. v. Reconstruction Oil Co., supra, 4 Cal.2d at p. 545, 51 P.2d 81); it is, above all, jurisdictional. Accordingly, it is not just collateral to the main action.

Nor is it a final judgment in any sense. "A judgment is final 'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' [Citation.]" (David v. Goodman (1948) 89 Cal.App.2d 162, 165-166, 200 P.2d 568.) "In determining whether a judgment is final or merely interlocutory the rule is that if anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties the judgment is interlocutory only; but where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, the decree is final. [Citation.] This general test must be adapted to the particular circumstances of the individual case. [Citation.]" (Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 129, 135 Cal.Rptr. 192.)

Here, further judicial action is required on the matters treated in the notice order. If any of the class members served with the notice requests to be excluded from the action, the court is required by statute to act on that request and issue the corresponding order of exclusion. (Civ.Code, § 1781, subd. (e).) Even if none of the class members served with notice request to be excluded, the court is required to proceed with the action to the end that the "judgment, whether favorable or not, will include all...