Tinsley v. Palo Alto Unified School Dist.

• Decision Date: 13 April 1979
• Citation: 154 Cal.Rptr. 591,91 Cal.App.3d 871
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret TINSLEY et al., Plaintiffs, Appellants and Respondents, v. PALO ALTO UNIFIED SCHOOL DISTRICT, Defendant, Respondent and Appellant, State of California et al., Defendants and Respondents. Civ. 43478.

Page 591

154 Cal.Rptr. 591

91 Cal.App.3d 871

Margaret TINSLEY et al., Plaintiffs, Appellants and Respondents, v. PALO ALTO UNIFIED SCHOOL DISTRICT, Defendant, Respondent and Appellant, State of California et al., Defendants and Respondents.

Civ. 43478.

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

April 13, 1979.

Hearing Denied June 7, 1979.

Sidney L. Berlin, Berlin & Goodman, Redwood City, Joseph Cotchett, Susan Illston, Cotchett, Hutchinson & Dyer, San Mateo, Gerald Z. Marer, Keogh, Marer & Flicker, Palo Alto, Nathaniel Colley, Nancy B. Reardan, Sacramento, for plaintiffs, appellants and respondents.

Margaret E. O'Donnell, Breon, Galgani & Godino, San Francisco, for defendant, respondent and appellant.

Selby Brown, Jr., County Counsel, Robert T. Owens, Asst. County Counsel, San Jose, Sanford Jay Rosen, Thelton E. Henderson, Rosen, Remcho & Henderson, San Francisco, LaDoris Hazzard Cordell, East Palo Alto, Keith C. Sorenson, Dist. Atty., George F. Camerlengo, Deputy Dist. Atty., Redwood City, Keith V. Breon, Breon, Galgani & Godino, San Francisco, for defendants and respondents.

Fred Okrand, Mark D. Rosenbaum, Mary Ellen Gale, ACLU Foundation of Southern California, Los Angeles, Joseph H. Duff, Shockley, Duff & Hart-Nibbrig, Los Angeles, Virgil Roberts, Manning, Reynolds & Roberts, Los Angeles, Lynn A. Pineda, Los Angeles Center for Law and Justice, Los Angeles, Halvor T. Miller, Thomas G. Neusom, Edward M. Medvene, Los Angeles, Alan Schlosser, San Francisco, Margaret Crosby, Amitai Schwartz, Berkeley, ACLU of Northern California, for amicus curiae.

SIMS, ^* Associate Justice.

Petitioners, the parents of elementary school children in various elementary school districts within the territory embraced within the boundaries of Sequoia Union High School District and in Palo Alto Unified School District, seek a writ of mandate to compel the respondent elementary districts and others to submit to the court a reasonably feasible plan to eliminate or alleviate alleged racially segregated schools existing within those districts. They have appealed from a judgment entered following an order sustaining, without leave to amend, the demurrers to their second amended petition as amended by a third amendment. It appears from the pleadings that the alleged segregation of which complaint is made is interdistrict in nature, and allegedly can only be eliminated or alleviated by an interdistrict plan. The trial court ruled that the petition, as thrice amended, failed to state a cause of action because it fails to allege any intentionally segregative acts or omissions requiring interdistrict relief, and, alternatively, because it fails to allege any acts or omissions, whether intentionally segregative or not, which require interdistrict relief.

The issue as so framed has been resolved in accordance with the position of respondents under the equal protection clause of the Fourteenth Amendment of the United States Constitution as construed in Milliken v. Bradley (1974) 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069. It was left unresolved under our California Constitution in Crawford v. Board of Education (1976) 17 Cal.3d 280, see p. 303, fn. 14, 130 Cal.Rptr. 724, 551 P.2d 28. Preliminarily we determine that there is no merit to the contention of certain respondents that the judgment against them is not final and not appealable. We sustain the contention of another respondent that the children themselves are proper parties plaintiff, but find that defect is curable and not dispositive of the action. Finally we recognize that the rulings under the federal Constitution are neither controlling nor persuasive in the light of principles developed under the California Constitution. The judgment must be reversed and the case must be remanded for a determination, after appropriate amendment and answer, of whether there is segregation in a recognizable geographic area entitling the pupils to relief because the minority enrollment in one district within that area is so disproportionate as realistically to isolate them from other students in other districts in that area; and, if so, whether there are reasonably feasible steps to eliminate or alleviate the racial imbalance that gives rise to such state constitutionally proscribed segregation.

I

Four of the eight elementary school districts involved and the San Mateo County Committee on School District Organization jointly interposed a motion to dismiss the appeal on the ground that there is no final judgment from which an appeal may be taken. That motion was denied, but it is renewed in the brief jointly filed for those respondents and two other elementary school districts, all collectively referred to as "the San Mateo County respondents." The case remains pending against the State of California, and the California State Board of Education because of their joint return by way of answer to the second amended petition for writ of mandate. ¹ The record also reflects that there is an outstanding stipulation that the Sequoia Union High School District and the San Mateo County Superintendent of Schools, originally named among the respondents in that petition, need not respond "until 30 days after the Superior Court has decided the issue of whether a desegregation remedy will be ordered or upon 30 days notice by petitioners."

Subdivision (a) of section 904.1 of the Code of Civil Procedure provides that an appeal may be taken from a judgment, excluding, with exceptions not relevant here, any appeal from an interlocutory judgment. It is generally recognized that the rule which only permits an appeal from one final judgment is designed to prevent oppressive and costly piecemeal disposition and multiple appeals in a single action, and so requires that review of intermediate rulings should await the final disposition of the case. (See Knodel v. Knodel (1975) 14 Cal.3d 752, 760, 122 Cal.Rptr. 521, 537 P.2d 353, quoting from 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 36, p. 4050; and Gosney v. State of California (1970) 10 Cal.App.3d 921, 928-929, 89 Cal.Rptr. 390.) The San Mateo respondents acknowledge that section 579 of the Code of Civil Procedure provides as follows: "In an action against several defendants, the Court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." Under this section when there is a several judgment resolving all issues between a plaintiff and one defendant, either party may appeal from an adverse judgment, although the action remains pending between the plaintiff and other defendants. (See Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122; Aetna Cas. etc. Co. v. Pacific Gas & Elec. Co. (1953) 41 Cal.2d 785, 788-790, 264 P.2d 5; Howe v. Key System Transit Co. (1926) 198 Cal. 525, 528-530, 246 P. 39; Rocca v. Steinmetz (1922) 189 Cal. 426, 428-429, 208 P. 964; Baxter v. Boege (1916) 173 Cal. 589, 591-594, 160 P. 1072; National Electric Supply Co. v. Mount Diablo Unified School Dist. (1960) 187 Cal.App.2d 418, 421-422, 9 Cal.Rptr. 864; South v. Wishard (1956) 146 Cal.App.2d 276, 281-282, 303 P.2d 805; Stafford v. Yerge (1956) 139 Cal.App.2d 851, 853-854, 294 P.2d 721; Huntoon v. Southern T. & C. Bank (1930) 107 Cal.App. 121, 130-131, 290 P. 86; and Witkin, op. cit. supra, § 42, p. 4057.)

Nevertheless those respondents assert that the one final judgment rule must be applied to defeat the appeal in this case because the interests of the state, a remaining defendant, and the local respondents in this case are identical both in terms of the legal issues raised and in the relief sought by the petitioners, and, therefore, the judgment in this case cannot be a complete determination of the matter. On its face this argument is inherently inconsistent with the position successfully advocated by those respondents in the lower court when they secured the order sustaining their demurrers without leave to amend and the ensuing judgment. If, as now stated, the local districts are mere agencies of the state so that any relief directed against the state will by necessity affect them, the trial court may have erred in sustaining the demurrers. On that theory the appeal should not be dismissed, but the judgment should be reversed. The premise that there are identical interests does not bear scrutiny. The local districts, as agents, may have limited powers in interdistrict affairs, whereas the state, as set forth below, has plenary powers in all school district affairs. (Cf. part IV, below.) The legal issues are not necessarily the same. In any event, if they are, it should be so determined on this appeal and the existing judgments should be set aside if a cause of action has been stated against the local districts as agencies of the state.

Furthermore the precedents upon which those respondents rely do not support their position. In Hohorst v. Hamburg-American Packet Co. (1893) 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443, the court did rule that a decree dismissing one defendant who allegedly was jointly responsible for a patent infringement was not an appealable final decree. The court applied the prevailing federal rule, apparently predicated upon the English common law and applied in federal legal, equitable and admiralty matters. The federal common law rule cannot control the statutes of this state.

In Call v. Alcan Pacific Co. (1967) 251 Cal.App.2d 442, 59 Cal.Rptr. 763, the court did entertain what appeared to be an untimely appeal from a judgment in favor of a surety which had been entered more than three months prior to the judgment in favor of the principal from which a timely appeal was perfected. The court relied upon Nolan v. Smith (1902) 137 Cal. 360, 70 P. 166, and noted: "When a lawsuit involves a single claim against principal and surety, an appellate court should not be subjected to their separate appeals." (251...