Plaintiff and appellant Robert Lopez (plaintiff) filed a class action against defendants and respondents (defendants)
We hold that because there was substantial evidence supporting the trial court's findings that common issues did not predominate and that plaintiff's claims were not typical of the putative class members' claims, the trial court did not abuse its discretion in denying the class certification motion. We further hold that the order sustaining the demurrers to plaintiff's section 1983 claims is nonappealable. We therefore affirm the order denying the class certification motion and dismiss the appeal with respect to the order sustaining the demurrers to the section 1983 claims.
The third amended complaint asserted three causes of action against defendants: (1) wrongful detention in violation of the California Constitution and Civil Code section 52.3; (2) false imprisonment; and (3) negligence based on breach of a mandatory duty. That complaint defined the class as "all persons who have been tried, convicted and incarcerated from crimes in the State of California, whether adult or juvenile, who have had their sentence
In the third amended complaint, plaintiff explained the gravamen of the action as follows: "The Plaintiffs, on behalf of themselves and the class of similarly situated persons described below, seek damages to the extent allowable under applicable Federal and State law from all Defendants named herein for false imprisonment and violation of their Constitutionally protected civil rights, privileges and immunities because they were not timely released from Defendants penal facilities upon the completion of their respective correctly calculated sentences as required under the laws of the State of California. The Defendants failure to timely release the Plaintiffs resulted in their being `over-detained' during which time they continued to be treated in all respects as though they were prisoners notwithstanding that their correctly calculated sentences had been fulfilled and all legal justification for their continued imprisonment and treatment as prisoners had ended. [¶] ... The Plaintiffs' respective over-detentions occurred as a direct and proximate result of the Defendants systematic pattern and practices of failure, neglect or disregard of Plaintiffs and all others similarly situated civil rights by: [¶] a. Failing to implement a system for the correct calculation of release dates including, but not limited to, the calculation of their minimum and maximum sentencing periods and early release dates after application of all appropriate credits consistent with applicable law; [¶] b. Failing to implement a system for the timely release of prisoners upon the completion of their respective correctly calculated sentence(s); [¶] c. Failing to timely release prisoners from penal institutions upon the conclusion and satisfaction of their correctly-calculated sentences." (Italics added.)
Plaintiff further alleged that because common issues of law and fact predominated, defendants' liability to each class member could be established by common proof on a classwide basis. Plaintiff asserted, "This case presents issues of law and fact common to the class as to whether there is a systematic pattern and practice by the Defendants, and each of them whereby individuals under their care, custody, control and supervision were routinely over-detained in penal facilities after their properly-calculated sentences had been completed due to miscalculations or failure to make adjustments in sentences given applicable law, all in violation of Plaintiff's Federal and State Constitutional rights. These questions of law and fact predominate over questions that affect only individual class members. Proof of a common or single state of
Plaintiff repeatedly emphasized that the class claims arose from defendants' systematic pattern and practice that resulted in miscalculations of the putative class members' sentences and the alleged over-detentions. For example, plaintiff alleged, "Defendants and each of them maintained and permitted a continuing policy, custom and practice including but not limited to, failing to determine the correctly calculated sentences for prisoners. Defendants thereby acted with deliberate indifference toward individuals incarcerated in facilities by continuing to incarcerate them after the expiration or satisfaction of their correctly calculated sentences resulting in their loss of freedom, in violation of their constitutional rights. These policies, customs and practices are evidenced in part in the failure of Defendants to comply with applicable State law, enactments, regulations and Court Orders for the release of Plaintiffs and all others similarly situated. By so doing, the Defendants, and each of them violate Court imposed sentencing Orders and leave Plaintiffs to remain incarcerated after they should have been released. [¶] The Defendants policies, customs and practices were the proximate cause of the violations of Plaintiffs' rights described herein. The Defendants, and each of them, are liable for all of the injuries sustained by Plaintiffs." (Italics added.)
Following the overruling of defendants' demurrer to the third amended complaint, plaintiff filed his motion for class certification. According to plaintiff, the common questions of law and fact predominated over the issues to be adjudicated individually. Plaintiff set forth the common issues as: "(a) Whether the members of the Class were under the care, custody, control and supervision of Defendants, and each of them; (b) Whether the Defendants were under a duty to accurately and properly calculate sentences for the members of the Class including applying all appropriate credits under applicable law; (c) Whether the members of the Class were entitled to be released after serving the correctly-calculated sentence; (d) Whether the members of the Class were over-detained and remained imprisoned in a penal facility, after their lawful right to release had passed, under sentences which were incorrectly or inaccurately calculated by the Defendants; (e) Whether the members of the Class continued to be treated in all respects as prisoners during the period of their respective over-detentions; (f) Whether the Defendants engaged in a pattern or practice that deprived any person of rights,
Plaintiff's class certification motion was supported by the declaration of plaintiff's attorney, Steven Archer, which declaration had attached as exhibits, inter alia, excerpts from the transcript of the deposition of Karen Elliott, the person designated by the Department as most qualified to testify on the Department's behalf; copies of "early/late release reports" produced by defendants; and certain documents obtained from the Department pursuant to a California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.) request.
The excerpts from Ms. Elliott's deposition transcript contained the following testimony: Ms. Elliott had worked for the Department in various capacities for 23 years. The Department operated under and consistent with California law. The Department was assigned responsibility for confining as inmates in penal institutions persons who had been convicted of various crimes in California. The Department had an obligation or duty to complete inmate time computations in a uniform manner. It also had a duty to ensure that release date calculations were correct. When a case records analyst received a prison packet for a prisoner at an inmate reception, the analyst would review and analyze the documents in the packet for the purpose of calculating a release date, which was usually referred to as an "earliest possible release date." Upon transfer of an inmate to a "main line institution," the Department would conduct subsequent intake audits to ensure, inter alia, that the inmate's calculated release date was correct. Miscalculations of release dates should have been "caught and corrected" at such subsequent intake audits. At each intake audit, whether it was a reception intake audit or an intake audit following transfer to a mainline institution, the records analyst was expected to review and confirm the calculations on the inmate's term. The Department also conducted a "60-day parole" audit prior to an inmate's
According to the declaration of Attorney Archer, the documents produced in response to the CPRA request showed that "for every entry on those documents that is identified as either `TRUE' or `YES' there is a number which indicates how many days the individual was over-detained (or in one case under-detained and released too early)." Attorney Archer compared the "early/late release reports" produced by defendants in discovery to the documents produced in response to the CPRA request and confirmed that every one of the reports, save one, "appears in the [CPRA] documents as a `TRUE' or `YES' and the number of days match up as well." He concluded from the documents that "the Defendants [had] already checked, re-calculated and confirmed that they [had] over detained the 594 inmates comprising the Class sought to be certified [in this case] for a total of 65,643 days during the period January 1, 2004-May 4, 2008."
Defendants opposed the class certification motion and supported that opposition with their attorney's declaration that attached, inter alia, excerpts from Ms. Elliott's deposition transcript and letters sent by the Department concerning a sentencing error in the amended abstract of judgment and the minute order for plaintiff's sentencing hearing. According to the letters sent by the Department, it detected and addressed the error in plaintiff's sentence as follows: The operative complaint established that plaintiff was convicted of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2), possession of marijuana in violation of Health and Safety Code section 11359, and possession of marijuana for sale in violation of Health and
Following the hearing on the motion for class certification, the trial court in a written ruling explained its decision denying the motion for class certification, in part, as follows: "The Court determines that [p]laintiff has not demonstrated that common questions of law or fact predominate among the putative class. In order to assess whether the [d]efendants are liable for the overdetention of putative classmembers, the Court would be required to make highly individualized determinations as to the specific circumstances of each class member. Defendants identify some of these questions as follows: [¶] 1. Has the potential class member been overdetained? [¶] 2. If so, what caused the overdetention? [¶] 3. Who, if anyone, is liable for the overdetention? [¶] 4. If the potential class member has been overdetained, how long has he been overdetained? [¶] 5. Has the potential classmember complied with the
"Again, there could be many reasons for overdetention of a classmember (including, as is the case with [p]laintiff, an apparent error in the minute order imposing the sentence), and there is no evidence of a policy or practice of overdetention in this case which was applied on a class basis by the named [d]efendants (including [the Department]). To the contrary, the evidence before the Court indicates that [the Department] engages in several calculations to come up with the [earliest possible release date]. [¶] ... [¶] Here, the Court is not persuaded that the evidence before it on certification shows a policy of `deliberate indifference' to the rights of [p]laintiff and the class. There is no evidence, in other words, demonstrating that the class has suffered the same alleged harm based on the same commonly applied policy or practice. [¶] ... [¶] Absent evidence of a policy or practice of overdetention (resulting in deliberate indifference to the classmembers' rights, as was the case in Vanke [v. Block (C.D.Cal. Nov. 7, 1998, No. CV 98-4111 DDP (SHx)) 1998 U.S.Dist. LEXIS 23488]), the Court would have to assess why inmates were overdetained for each classmember. The class, as defined, may have had their terms extended or miscalculated for any of a number of reasons.
"[Plaintiff] is the class representative. The [complaint] alleges that [plaintiff] was convicted of assault with a firearm and possession of a controlled substance for sale on April 5, 20[0]1. While the evidence shows that [p]laintiff was extended past his release date (plaintiff claims he was overdetained 767 days; the [the Department] claims it was 518 days), the reason for this was apparently due to an error in the minute order which sentenced him. Exhibit D to [d]efendants' compendium is a letter from one L. Donaldson of the [the Department's] Legal Processing Unit (`LPU') to Judge Mark Mooney regarding the sentencing of [plaintiff]. This letter suggests that it was not the [Department] who was responsible for overdetaining [p]laintiff, it was the Court order itself which the [Department] was required to follow under the law. [¶] ... Thus, [plaintiff's] claim is not typical because while he was incarcerated past his scheduled released date, this was due to the minute order error and not any acts of the [defendants] in this litigation. Accordingly, [plaintiff] does not have claims typical of those of the class, as defined.
The California Supreme Court in enunciating the standard of review of a class certification order stated, "On review of a class certification order, an appellate court's inquiry is narrowly circumscribed. `The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: "Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification." [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]' [Citations.] Predominance is a factual question; accordingly, the trial court's finding that common issues predominate generally is reviewed for substantial evidence. [Citation.] We must `[p]resum[e] in favor of the certification order ... the existence of every fact the trial court could reasonably deduce from the record ....' [Citation.]" (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1022 [139 Cal.Rptr.3d 315, 273 P.3d 513], italics added.) "`"Any valid pertinent reason stated will be sufficient to uphold the order."' [Citations.]" (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 327 [17 Cal.Rptr.3d 906, 96 P.3d 194] (Sav-On Drug Stores).)
In Sav-On Drug Stores, supra, 34 Cal.4th 319, the Supreme Court, in explaining the analytical process employed by appellate courts when reviewing class certification motions, said, "As the focus in a certification dispute is on what type of questions — common or individual — are likely to arise in the
The court has set forth the established standards for class certification generally, as follows: "Code of Civil Procedure section 382 authorizes class actions `when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court....' The party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citation.] The `community of interest' requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. [Citation.]" (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)
"The certification question is `essentially a procedural one that does not ask whether an action is legally or factually meritorious.' [Citation.] A trial court ruling on a certification motion determines `whether ... the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.' [Citations.]" (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.)
The operative complaint and the motion to certify the class repeatedly stated that defendants engaged in a "systematic pattern and practice" that resulted in miscalculations of the putative class members' release dates and the overdetentions in issue. But plaintiff did not identify or produce evidence of a specific policy or practice that uniformly was applied to the calculations of the putative class members' release dates and which resulted in the overdetentions. For example, if plaintiff had presented evidence showing that defendants adopted a policy, not mandated by law or regulation, pursuant to which the Department held each inmate beyond his or her lawful release date to check for any outstanding warrants, thereby proximately causing a classwide overdetention of inmates, such a specific policy and practice arguably may have been amenable to class treatment. Because plaintiff did not identify or produce evidence of such a specific policy or practice, the trial court did not abuse its discretion in concluding that the miscalculations were likely the result of various causes, and not the result of a uniform, classwide cause.
The circumstances of plaintiff's overdetention provide an illustration of the reasonableness of the trial court's conclusion. Contrary to the allegations of the operative complaint, the Department did not miscalculate plaintiff's release date based upon the uniform application of any specific policy or practice, classwide or otherwise. Instead, defendants' evidence showed that the trial court made a sentencing error in its minute order that defendants eventually detected and attempted to correct by sending two letters to the trial court to rectify the error.
Thus, even assuming plaintiff could establish defendants' liability to him based on the seemingly unique and highly individualized facts that gave rise to his overdetention — a questionable proposition — that liability determination would not operate to adjudicate the liability of defendants to each of the almost 600 putative class members. That is because, as discussed below, the evidence does not show that plaintiff's claim is typical of the claims of the putative class members or that it was the result of any uniform policy or practice.
Plaintiff argues that defendants were obligated to ascertain and remedy every miscalculation error so that no overdetentions would occur. Even if such a claim were consistent with plaintiff's allegations in the operative complaint concerning a classwide pattern and practice, this may not always be possible, as demonstrated by plaintiff's individual claim.
We note that although plaintiff submitted evidence that 594 inmates may have been overdetained during the time period covered by the documentation, he provided no evidence showing the total number of inmates released during that same period. Absent such a showing, it cannot be determined whether the total number of inmates overdetained was statistically significant. If 1,000 or fewer inmates were released during the covered time period, the fact that 594 of them were overdetained may well have been indicative that the overdetentions were the result of some uniformly applied policy or practice. On the other hand, if 60,000 inmates were released during the covered time period, the fact that only 594 were overdetained would not necessarily tend to show the existence of a policy or practice.
Here, the evidence concerning plaintiff's overdetention did not support an inference that his delayed release was the result of defendant's deliberate indifference to his rights; rather it showed that defendants attempted to rectify the sentencing error in the minute order prior to his lawful release date, albeit unsuccessfully. And even if the evidence relating to plaintiff's overdetention had shown that defendants acted with deliberate indifference toward plaintiff's rights, that evidence did not support an inference that defendants acted with the same indifference toward the rights of the putative class members. Absent such a classwide showing on the deliberate indifference issue, it was not unreasonable for the trial court to conclude that the issue could not be adjudicated on a classwide basis due to the individualized nature of the issue.
In addition, plaintiff's claims were all based on the allegation that he and the putative class members were detained beyond their "lawful" sentences. As the trial court reasonably concluded, the issue of whether the detentions were lawful would require individualized proof. In addition to the circumstance of plaintiff's overdetention — which raised a serious question whether defendants were liable for his alleged overdetention because, as discussed, it was the result of a lawful court order — Ms. Elliott provided at least two other examples of when an inmate could lawfully be overdetained: (1) when a warrant hold had been placed on the inmate at the time of his scheduled release and (2) when a parole board of hearings placed a hold on a sexually violent predator or a mentally disordered offender awaiting a civil judgment. That evidence itself supported a reasonable inference that the issue of the lawfulness of a given overdetention was not susceptible to classwide or common proof because of a lack of predominant questions of law or fact.
The trial court also denied the certification motion based on its finding that plaintiff's claims were not typical of the alleged claims of the putative class members. Based on defendants' evidence concerning the circumstances of plaintiff's overdetention, the trial court's finding on the typicality element was supported by substantial evidence and therefore not an abuse of discretion.
In addition, the government tort claim form (Gov. Code, § 905.2) that plaintiff filed states that the value of his claim is $2.95 million. But according to the motion for class certification, "[h]ere, the effort required to effectively bring an individual suit is high compared to the relatively small amount of potential recovery," i.e., the respective value of the each class member's individual claim is so de minimis that it justifies bringing those claims as a class action. Thus, the disparity between the alleged value of plaintiff's claim and that of the other putative class members would also support the conclusion that his claim was not typical of the class claims. In light of the evidence on the typicality element, the trial court did not abuse its discretion in denying the motion for class certification on that basis.
In addition to seeking review of the trial court's order denying his motion for class certification, plaintiff seeks review of the trial court's earlier order sustaining without leave to amend defendants' demurrers to plaintiff's section 1983 claims in the first amended complaint. Defendants, however, contend that although the order denying class certification is appealable under the well-established "death knell" exception to the one final judgment rule, the order sustaining the demurrer is not appealable because it is an interim order. In response to this contention, plaintiffs submitted a letter brief in which they asserted that the order sustaining the demurrers is appealable under Code of Civil Procedure section 906 (section 906) as an interim order that is related to the merits of, or otherwise necessarily affects, the order denying class
The Supreme Court reviewed the origins of the doctrine, explaining, "In Daar, the plaintiff filed a putative class action. The trial court sustained a demurrer, concluding the plaintiff could neither maintain a class action nor satisfy the jurisdictional minimum amount in controversy for superior court actions, and transferred the action to the municipal court. On appeal, we considered as a threshold issue whether such an order, determining the plaintiff could not maintain his claims as a class action but could seek individual relief, was appealable, and we concluded it was. What mattered was not the form of the order or judgment but its impact. (Daar, at pp. 698-699.) Because the order effectively rang the death knell for the class claims, we treated it as in essence a final judgment on those claims, which was appealable immediately. [Citations.]" (Baycol, supra, 51 Cal.4th at p. 757.)
The court added, "Equally important in Daar was the circumstance that the order appealed from was essentially a dismissal of everyone `other than
As noted, plaintiff invokes section 906 as the statutory basis for his appeal from the order sustaining the demurrer. That section provides, in pertinent part: "Upon an appeal pursuant to Section 904.1 or 904.2, the reviewing court may review the verdict or decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party, including, on any appeal from the judgment, any order on motion for a new trial, and may affirm, reverse or modify any judgment or order appealed from and may direct the proper judgment or order to be entered, and may, if necessary or proper, direct a new trial or further proceedings to be had.... The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken." (Italics added.)
The court in Cahill, supra, 194 Cal.App.4th 939 held that the order denying the utility company's summary judgment motion was an interim nonappealable order and that section 906 did not authorize an appeal from that order.
In the recent decision in Oiye v. Fox (2012) 211 Cal.App.4th 1036 [151 Cal.Rptr.3d 65] (Oiye), the court similarly concluded that an interim order that is unrelated to the final judgment or appealable order from which the appeal is taken is not reviewable under section 906. In that case, the trial court entered, inter alia, an order granting a preliminary injunction and requiring the defendant to produce certain financial information to the
The court in Oiye, supra, 211 Cal.App.4th 1036 agreed with the plaintiff and refused to consider the merits of the discovery order. "As [the] plaintiff points out, generally discovery rulings are not directly appealable and are subject to review only after entry of a final judgment. [Citations.] [¶] [But a]n order granting an injunction is appealable. (§ 904.1, subd. (a)(6).) In an authorized appeal, an appellate court may review `any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the judgment or order appealed from.' (§ 906.) As [the] plaintiff contends, the discovery order here, though made in the same order as the issuance of an injunction, is unrelated to the merits of the injunction and does not necessarily affect it. [The d]efendant does not respond to this contention. Accordingly, we do not reach the merits of [the] defendant's attacks on the discovery order. (Cf. NewLife Sciences v. Weinstock (2011) 197 Cal.App.4th 676, 689 [128 Cal.Rptr.3d 538].)" (Id. at p. 1060.)
In this case, as in Cahill, supra, 194 Cal.App.4th 939 and Oiye, supra, 211 Cal.App.4th 1036, the trial court's earlier order sustaining the demurrers to plaintiff's section 1983 claims does not involve the merits of the directly appealable order — the order denying class certification. The merits of the class certification order involved whether common or individual issues predominated and whether plaintiff was a typical and adequate class representative. The ruling on the demurrer involved whether plaintiff had pleaded facts sufficient to support his section 1983 claims, including whether he had stated facts sufficient to avoid the bar of the qualified immunity doctrine. Whether a plaintiff has pleaded an individual cause of action is an inquiry that is distinct from whether there are predominant issues of law and fact or whether a putative class representative has typical claims and is an adequate representative. As noted above, "[t]he certification question is `essentially a procedural one that does not ask whether an action is legally or factually meritorious'" (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326), whereas a ruling on a demurrer directly involves the factual and legal merits of a claim.
Similarly, the ruling on the demurrers did not necessarily affect the decision not to certify the class. As the court in Cahill, supra, 194 Cal.App.4th 939 explained, the inquiry is not whether the ruling on the demurrers could affect the certification decision, but rather whether the sustaining of the demurrer to the section 1983 claims necessarily affected the order denying certification. Because the two orders deal with unrelated issues, they do not
Finally, the ruling on the demurrer did not "substantially affect[] the rights of a party" under section 906 because that ruling did not lead up to or directly relate to the certification decision. Again, the ruling on the demurrer involved the factual and legal merits of certain claims, i.e., whether the section 1983 claims were barred by the qualified immunity doctrine, but the ruling on the certification motion involved the wholly separate procedural question of whether common issues predominated over individual issues and whether plaintiff's claims were typical of the class members' claims and he was an adequate class representative. As a result, plaintiff's appeal from the demurrer order is not reviewable under section 906 as an interim order that substantially affected the rights of a party.
This conclusion is further illustrated by the decision in Wallace v. GEICO General Ins. Co. (2010) 183 Cal.App.4th 1390 [108 Cal.Rptr.3d 375] (Wallace). In that case, the trial court entered an interim order finding that the plaintiff lacked standing to act as the class representative. Thereafter, the defendants moved to strike the class allegations. In a footnote, the court held that the interim order was appealable under section 906 as an order affecting the appealable order striking the class allegations. The court reasoned that, "[a]n order striking class allegations is immediately appealable under the death knell doctrine established in Daar v. Yellow Cab Co.[, supra,] 67 Cal.2d 695 ..., under which an order that `determines the legal insufficiency of the complaint as a class suit and preserves for the plaintiff alone his cause of action for damages' has a `"legal effect" ... tantamount to a dismissal of the action as to all members of the class other than plaintiff.' (Id. at p. 699, citation omitted.) We may also review `any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the ... order appealed from.' (Code Civ. Proc., § 906.) Thus, the ruling that [the plaintiff] lacks standing to serve as a class representative is also within the scope of our review, as that ruling impacted the trial court's decision to strike the class allegations." (183 Cal.App.4th at p. 1396, fn. 5, italics added.)
The sustaining of the demurrers to the section 1983 claims here did not directly "impact" the class certification issue, as did the adverse ruling on the putative class representative's standing to pursue the class claims in Wallace, supra, 183 Cal.App.4th 1390. The latter ruling in Wallace became the legal predicate for the subsequent motion to strike the class claims, whereas the ruling on the demurrers was not mentioned, much less relied upon, by either party during the proceedings that culminated in the order denying class certification.
The trial court's order denying class certification is affirmed, and the appeal from the trial court's order sustaining the demurrer to plaintiff's section 1983 causes of action is dismissed. Defendants shall recover their costs on appeal.
Kriegler, J., and O'Neill, J.,
