Opinion
Rehearing Denied March 20, 1967.
For Opinion on Hearing, see 63 Cal.Rptr. 721, 433 P.2d 732. David Daar, in pro. per., Max Tendler and Leon Perlsweig, Los Angeles, for plaintiff and appellant.
Hanna & Morton and David Thomas, Los Angeles, for defendant and respondent.
Roger Arnebergh, City Atty., and Charles W. Sullivan, Deputy City Atty., amici curia.
FILES, Presiding Justice.
Plaintiff commenced this action in the superior court, on behalf of himself and all other persons similarly situated, to recover excessive charges made by defendant for the use of its taxicabs during the immediately preceding four years. Defendant demurred upon the ground that the action was not within the jurisdiction of the court. The theory of the demurrer was that plaintiff was not entitled to sue on behalf of all taxicab users as a class, and that plaintiff individually had not alleged damages to himself in excess of $5,000. On January 28, 1965, the trial court made a minute order sustaining the demurrer without leave to amend and transferring the cause to the municipal court.
Plaintiff has filed a notice of appeal stating that he appeals from the order sustaining the demurrer and transferring the action, and from all other orders made in the case. Plaintiff now does not contend that any order was appealable except the order of January 28, 1965, so weProceed directly to determine whether plaintiff is entitled to an appeal from that order. This requires an analysis of several statutes.
Code of Civil Procedure section 89 gives the municipal court original jurisdiction in cases at law in which the demand amounts to $5,000 or less. California Constitution article VI, section 5 (as it read prior to November 8, 1966), excluded from the jurisdiction of the superior court cases in which jurisdiction was given to the municipal court. Code of Civil Procedure section 396 provides that if an action is commenced in a court which lacks jurisdiction of the subject matter, if there is a court of this state which has jurisdiction, the action shall not be dismissed, but shall be transferred to the court having jurisdiction of type subject matter. It was under the authority of that section that the superior court transferred the action to the municipal court, after it determined that plaintiff could not maintain a class suit or state a cause of action for his own damages in excess of $5,000.
Prior to 1961 Code of Civil Procedure section 963 provided that an order changing the place of trial was appealable. While that provision was operative, it was held that an order transferring a case from the superior to the municipal court on jurisdictional grounds was appealable as an order changing the place of trial. (Muller v. Reagh, 150 Cal.App.2d 99, 309 P.2d 826.) In 1961 section 963 was amended to eliminate any appeal from an order changing the place of trial. Code of Civil Procedure section 400 was then enacted, authorizing the review of such an order by writ of mandate to be applied for in the Court of Appeal within 10 days after notice of the order.
If nothing more were involved here than an order changing the place of trial, we would be compelled to hold that the order is nonappealable. But the effect of the superior court's action in this case goes much farther. It places plaintiff in a court which has no jurisdiction to grant the full relief which he seeks. The superior court has in effect dismissed the claims which plaintiff wishes to litigate, and has preserved to him only a lesser, included claim.
Code of Civil Procedure section 963 authorizes an appeal from a 'final judgment,' but nowhere in the code is there a comprehensive definition of what is meant by 'final judgment' in that section. The decisions of the courts look to the effect of an order, rather than its form or name, in determining whether it is appealable as a Aetna Cas. etc. Co. v. Pacifie Gas & Elec. Co.,
'The judgment on the fourth cause of action was a final determination of the rights of plaintiff as statutory trustee seeking to recover general damages for the benefit of the injured employee. As a final determination of the rights of plaintiff in that capacity, such judgment should be regarded as having the same measure of finality as would a similar judgment in an action in which there were two plaintiffs seeking their respective damages from the same defendant on two severable causes of action: (1) the insurance carrier for recovery of its own compensation expenditures; and (2) the injured employee for recovery of his own general damages. Such cases as Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174, and Greenfield v. Mather, 14 Cal.2d 228, 93 P.2d 100, involve an entirely different situation in that there each of the successive judgments left undetermined between the same parties in their same individual capacities another alleged cause or causes of action for the same identical relief. Under the circumstances here, we conclude that the judgment of dismissal of the fourth cause of action is a final judgment within the meaning of section 963 of the Code of Civil Procedure and is therefore appealable.'
Keenan v. Dean, 134 Cal.App.2d 189, 285 P.2d 300, was commenced as an action in the municipal court for unlawful detainer and $205 in rent. Defendant cross-complained for $50,000 damages, causing the action to be transferred to the superior court. The latter court then made an order striking the cross-complaint, from which order defendant appealed. The Court of Appeal said (at p. 192, 285 P.2d at p. 302):
'All that remains to be tried is the original action properly filed in the Municipal Court. When that fact is called to that attention of the Superior Court, under the mandatory provisions of section 396 of the Code of Civil Procedure, it will have to return the case for trial to the Municipal Court. Neither that court, nor the Appellate Department of the Superior Court has power to review the propriety of the ruling of the Superior Court striking the cross-complaint. Thus, in a very real sense the order striking the cross-complaint was a final order or judgment. The Superior Court has finally determined that it has no jurisdiction of the proceeding. Unless the propriety of that order can be reviewed on this appeal its propriety cannot be reviewed at all. The order to strike was tantamount to a dismissal of the action on the cross-demand (Herrscher v. Herrscher, 41 Cal.2d 300, 259 P.2d 901), and Code of Civil Procedure. (See Costa v. Regents of the University if Cal., 103 Cal.App.2d 491, 229 P.2d 867.) Since the propriety of such judgment cannot otherwise be reviewed it is necessarily a final judgment and therefore appealable.'
The reasoning of the Aetna and Keenan decisions supports the conclusion that the order of transfer in this case is appealable as a 'final judgment' under section 963. We are aware that the court which decided Keenan has subsequently disapproved the statement therein that the superior court was required to retransfer the Wexler v. Goldstein,
The complaint is in two counts. The first cause of action contains these allegations: Defendant is in the business of furnishing taxicab transportation to the public in the City of Los Angeles, under a city franchise. Its rates are fixed by the Public Utilities Commission of the city. Defendant has sold scrip books to the public, including plaintiff, and the scrip has been accepted as payment for transportation. The name and address of every purchaser of scrip books can ascertained from the records of the company.
During the immediately preceding four years defendant's taxicabs have been equipped with meters which were adjusted so as to register charges in excess of those allowed by law. The complaint alleges that 'the percentage of rate of overcharge to the plaintiff and such member of the class by the defendants was identical and uniform at all times herein mentioned' and 'that the exact amount of the said overcharge is not at this time known to the plaintiff and members of his class, but is and can be ascertained from the books and records of the defendants and from the information within the defendants' knowledge. * * *' The amount of the overcharge to plaintiff and the other scrip book purchasers is alleged to exceed $100,000.
The second cause of action is brought on behalf of those who used cash rather than scrip to pay for their taxicab transportation. Similar allegations are made with respect to a uniform rate of overcharges.
Inasmuch as the defendant is a public utility regulated by the City of Los Angeles this court invited the city attorney to appear as amicus curiae and comment upon whether the charter, ordinances or regulations of the city afford taxicab patrons any administrative remedy against defendant, the exhaustion of which might be a prerequisite to judicial action, within the rules set forth in Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291 P.2d 942, 132 A.L.R. 715. Upon consideration of the views of all counsel who have appeared, we conclude that no such remedy is available as a practical matter. Either the law provides no administrative remedy, or, if one exists in theory, no procedure for invoking it has ever been recognized. The rule requiring exhaustion of administrative remedy has no application here. (Henry George School of Social Science of San Diego v. San Diego Unified School Dist., 183 Cal.App.2d 82, 6 Cal.Rptr. 661.)
We turn then to examine plaintiff's standing to represent all taxicab patrons in this action. The historical basis of class suits is described in Hansberry v. Lee, 311 U.S. 32, 41-42, 61 S.Ct. 115, 85 L.Ed. 22, 27:
'The class suit was an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable. Courts are not infrequently called upon to proceed with causes in which the number of those interested in the litigation is so great as to make difficult or impossible the joinder of all because some are not within the jurisdiction or because their whereabouts is unknown or where if all were made parties to the suit its continued abatement by the death of some would prevent or unduly delay a decree. In such cases where the interests of those not joined are of the same class as the interests of those who are, and where it is considered that the latter fairly represent the former in the prosecution of the litigation of the issues in which all have a The term 'commom interest' as used here is not to be confused with uniformity of interests. The fact that a number of persons have claims of the same kind against the same defendant does not constitute 'common interest' in this sense. Mr. Witkin says:
'A common question is not enough to justify a class suit; common relief must also be sought. In other words, the privilege of permissive joinder of other persons as plaintiffs when there is a common question of law or fact * * * is distinct from the right to bring a suit on their behalf without joinder. Persons with separate causes of action arising out of the same controversy and involving common questions may elect to join as plaintiffs or to sue separately. The plaintiff cannot, in effect, force them to become parties in a limited sense by attempting to sue as their representative.' (2 Witkin, Cal.Procedure (1954) Pleading, § 105, p. 1084.)
Plaintiff here is attempting to construct a class of persons who have claims which are identical except as to amount. But no individual claim is dependent upon any other. If brought separately, any one may be established or defeated without affecting any other.
Persons who have identical claims which can be satisfied by independent relief have been held not to constitute a class for the purpose of a representative action. (E. g., Weaver v. Pasadena Tournament of Roses, 32 Cal.2d 833, 198 P.2d 514; Gama v. County of Kern, 179 Cal.App.2d 1, 3 Cal.Rptr. 380; Covert v. Nashville, C. & St. L. R. Co., 186 Tenn. 142, 208 S.W.2d 1008, 1 A.L.R.2d 154 (action to recover railroad overcharges).)
See also Note 1 A.L.R.2d 160, where the editors say:
'The few cases found upon this question appear to agree in holding that two or more overcharge claimants cannot join in bringing an action, nor can one or more of such claimants bring a representative action, to recover from a carrier or a utility overcharges based upon the same question of law and fact, the same questions of law and fact, where the overcharges are separate and distinct as to the respective claimants.'
Plaintiff invokes Chance v. Superior Court, 58 Cal.2d 275, 23 Cal.Rptr. 761, 373 P.2d 849, and Fanucchi v. Coberly-West Co., 151 Cal.App.2d 72, 311 P.2d 33. In each of those cases a representative action was held to be justified because the relief sought was in common.
In Fanucchi the defendant, operating a cotton gin, had intermingled the seed belonging to the various growers, and had returned to each grower an amount calculated by a formula which was erroneous. This left an overage of seed in the possession of the defendant, which belonged to the growers. In explaining why a class action on behalf of the growers was proper, the court said (151 Cal.App.2d at p. 81, 311 P.2d at p. 39):
'The allegation of the complaint, which must be taken as true, clearly show that there was an intermingling of this cotton seed so that it was impossible to segregate the interests of the various growers therein, and that there was a common ownership by the class of growers in the common fund or property which was withheld by the defendants. It has frequently been held that a suit by one or some of the beneficiaries of a common fund or of property, established or existing for the benefit of many beneficiaries and based on their common interest, is a proper class action.'
In that case the justification for a class action was found in the nature of the relief sough: the identification and partition of a single mass of property belonging to plaintiffs in common. The court did not suggest that an action for damages on behalf of every person who had been short- Chance was an action to foreclose 2,139 trust deeds, each of which covered one parcel of a single unsubdivided tract, owned by a single debtor. Because the tract was unimproved and the individual parcels described in the trust deeds were small, it was determined that the land would bring more at foreclosure if sold as a unit. Such a sale would be impossible except in a suit on behalf of the holders of all of the 2,139 trust deeds. The decision of the Supreme Court does not suggest that a representative suit would be proper every time a large number of trust deeds are to be foreclosed against a single debtor.
The Chance decision does point out (58 Cal.2d at p. 288, 23 Cal.Rptr. 761, 373 P.2d 849) that the existence of a common fund is not necessary to sustain a class suit, but it does not overrule the principle that there must be some community of interest in the relief.
In the case at bench there is no allegation that the improper overcharges found their way into any separate fund which can be impressed with a trust. Each taxicab user has a cause of action for money which, when reduced to judgment, will be collectible out of the defendant's property like any other money judgment.
Finally, mention should be made of the matter of identifying the persons whom plaintiff claims to represent. In the first cause of action, on behalf of the scrip purchasers, plaintiff has solved the problem by limiting his class to those persons whose names and addresses are listed in the records of the defendant. The second cause of action is on behalf of those who paid cash. A substantial proportion of such persons would be transients, who have since gone on to all parts of the would. There is no effective way of giving reasonable notice to them. And in the event of a recovery there is no way of establishing the identity of those entitled to share in it except through the self-serving declarations of those who are attracted by the prospect of financial gain. The high probability that no substantial part of the recovery would ever reach the real owners is itself a compelling reason for refusing to entertain the second cause of action as a class suit.
The order transferring the cause to the municipal court is affirmed. The attempted appeal from other orders is dismissed.
JEFFERSON and KINGSLEY, JJ., concur.