Powers v. Board of Public Works

These six consolidated actions were instituted for the purpose of determining the status of certain employees of the city and county of San Francisco and to recover wages claimed to be due plaintiffs as such employees. Judgments were rendered in favor of the respective plaintiffs, and the defendants appealed. In doing so they elected to present the appeals on records prepared under the alternative method provided for by section 953a et seq. of the Code of Civil Procedure. Plaintiffs now move to affirm the judgments upon the grounds, first, that the several points urged for reversal have been heretofore determined adversely to defendants’ contentions in the case of Rodgers v. Board of Public Works, 208 Cal. 291 [ 281 Pac. 64 ] ; and secondly, that although the appeals were taken under the alternative method defendants have wholly failed to conform to the requirements of the statute or court rules governing such appeals in that they have not printed in their brief or in a supplement appended thereto any portion of the record relied upon by them in support of the grounds they urge for reversal. (Sec. 953c, Code Civ. Proc.; Rule VIII, Supreme Court and District Courts of Appeal.)

The question of whether the decision in Rodgers v. Board of Public Works, supra, is controlling in the determi

It has been held repeatedly that where the appeal is taken pursuant to the alternative method it is mandatory to print in the opening brief, or in a supplement appended thereto, whatever evidence there is in the record bearing upon the questions raised by the appeal, that mere transcript references do not satisfy the requirements of the statute, and that under such circumstances the reviewing tribunal will not look to the typewritten transcript to determine whether grounds exist for reversal. (Barker Bros. v. Joos, 36 Cal. App. 311 [ 171 Pac. 1085 ]; Sea v. Lorden, 37 Cal. App. 444 [ 174 Pac. 85 ]; Greer-Robbins Co. v. Pacific Surety Co., 37 Cal. App. 540 [ 174 Pac. 110 ]; Gustafson v. Wasson, 42 Cal. App. 70 [ 183 Pac. 352 ] ; Dahlberg v. Dahlberg, 202 Cal. 295 [ 260 Pac. 290 ]; 2 Cal. Jur. 650, 651.)

In the present ease it appears from defendants’ opening brief and from the supplement thereto, which was filed after notice of motion to affirm was given, that the main ground urged for the reversal of the judgments is that the findings of the trial court are not supported by the evidence and are contrary thereto; and it also appears therefrom that the determination of that question depends largely upon the construction and the legal effect which shall be given to a series of resolutions passed by the Board of Public Works, and to the testimony of the respective plaintiffs relating to the circumstances of their employment and dismissal. But neither in the opening brief nor in the nine-page supplement thereto have defendants set out any part of the pleadings, findings or judgment, nor the particular portions of said resolutions and testimony upon which they rely to show that the conclusions of the trial court as to matters of fact and matters of law are erroneous. Consequently an intelligent determination of the questions in

Inasmuch, however, as the controversy presented by the appeals involves the status of a number of employees of the city, as well as the interpretation of certain charter provisions and departmental rules adopted pursuant thereto, it is evidently important that the. appeals receive consideration on the merits. It is ordered, therefore, that plaintiffs’ motion to affirm be dismissed without prejudice, and that defendants be granted twenty-five days from the date of the filing of this opinion within which to prepare and file a supplemental brief which shall conform to the statute and the rule above mentioned.