Shelley v. City of Los Angeles

36 Cal.App.4th 692 (1995) 42 Cal. Rptr.2d 529 THOMAS SHELLEY, Plaintiff and Appellant,

v.

CITY OF LOS ANGELES, Defendant and Respondent.

Docket No. B074981. Court of Appeals of California, Second District, Division Four.

July 7, 1995. [693] COUNSEL

Vogt & Resnick, James D. Vogt and William A. Kent for Plaintiff and Appellant.

James K. Hahn, City Attorney, Thomas C. Bonaventura, Chief Assistant City Attorney, and Shelley I. Smith, Assistant City Attorney, for Defendant and Respondent.

OPINION

WOODS (A.M.), P.J.

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 [694] 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 outside 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."