Shearin v. Brown ( 2013 )


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  • Filed 7/11/13
    CERTIFICATION FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    NICHOLAS SHEARIN et al.,                         B239730
    Plaintiffs and Appellants,               (Los Angeles County
    Super. Ct. No. BC400279)
    v.
    EDMUND G. BROWN, JR., as Governor,
    etc., et al.,
    Defendants and Respondents.
    APPEAL from orders of the Superior Court of the County of Los Angeles,
    Kenneth R. Freeman and Carl J. West, Judges. Affirmed, in part, dismissed, in part.
    Kiesel Boucher Larson, Paul R. Kiesel, Steven D. Archer, Jeffrey A. Koncius;
    Law Offices of Sanford Jossen and Sanford Jossen for Plaintiffs and Appellants.
    Sedgwick, Michael F. Healy and Kelly Savage Day for Defendants and
    Respondents.
    INTRODUCTION
    Plaintiff and appellant Robert Lopez (plaintiff) filed a class action against
    defendants and respondents (defendants)1 seeking damages for himself and all others
    similarly situated for allegedly being detained in prison beyond their lawful release dates.
    He appeals from the trial court‟s order denying his motion for class certification, as well
    as the trial court‟s earlier order sustaining demurrers to plaintiff‟s causes of action under
    section 1983 of title 42 of the United States Code (section 1983 claims).
    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.
    1
    Defendants are the California Department of Corrections and Rehabilitation
    (Department) and the State of California. All other defendants named in the operative
    complaint have been dismissed.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    A.     Operative Complaint2
    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 miscalculated and who have remained incarcerated for a period in
    excess of the time for which they should have been incarcerated had all lawful credits
    been applied and their sentence(s) been calculated correctly based on all applicable laws
    during the course of their incarceration.”
    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
    2
    The operative complaint for purposes of the class certification motion was the
    third amended complaint. The trial court had previously sustained without leave to
    amend demurrers to certain of the causes of action in the first amended complaint,
    including to plaintiff‟s section 1983 claims. Because, as discussed below, the order
    sustaining the demurrers to the section 1983 claims is nonappealable, we limit the factual
    and procedural discussion to matters that relate only to the ruling on the class certification
    motion.
    3
    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 facts or systematic failure will
    establish the right of each member of the class to recover. Damages for over-detention
    can then be calculated on a simple per diem basis.” (Italics added.)
    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
    4
    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.)
    B.     Motion to Certify
    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, privileges, or immunities
    secured or protected by the Constitution or laws of the United States or by the
    Constitution or laws of California; (g) Whether, by failing to release the members of the
    Class after their lawful, correctly calculated sentences had been completed or otherwise
    fulfilled, the Defendants imprisoned them without lawful authority or legal justification;
    5
    (h) Whether Defendants created, conducted, allowed and ratified a systematic pattern
    and practice which fostered the ongoing breach of their mandatory duties and was the
    direct and proximate cause of the members of the Class’s respective over-detentions; (i)
    Whether the members of the Class have been injured by the Defendant‟s conduct; and (j)
    Whether the members of the Class have sustained damages and, if so, what is the proper
    measure and appropriate formula to be applied in determining such damages.” (Italics
    added.) Plaintiff also asserted in the class certification motion that his claims were
    typical of the claims of other putative class members.
    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
    6
    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 release. That audit should have detected over-detentions, but in
    two sample cases, the records analysts did not detect the over-detentions or correct them.
    The goal and expectation of the Department was that the release dates for all inmates be
    correctly calculated. But that goal was not “achieved 100%” of the time. When an early
    release of an inmate occurred, “headquarters” requested a document that explained “what
    happened.” In the case of a late release, a document explaining what happened was also
    generated, and those reports were sent to an analyst who would input the information into
    a spreadsheet called an “early/late release report.” The determination that there had been
    a late release was not made by the records analyst who created the early/late release
    report, but rather by a manager or supervisor of the institution responsible for the late
    release. A manager should have been experienced enough to have verified the correct
    release date and the fact of late release.3
    According to the declaration of attorney Archer, the documents produce 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
    3
    If there was a late release, the amount of days of over-detention would be credited
    against the term of parole.
    7
    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 Safety Code section 11378.
    On March 16, 2006, three months before plaintiff should have been released if he had
    been properly sentenced, the Department sent a letter to the sentencing court, copied to
    the District Attorney and plaintiff‟s public defender, advising of the following: “A
    review of the documents delivered with the above-named inmate [plaintiff] indicates the
    Abstract of Judgment and/or Minute Order may be in error, or incomplete, for the
    following reasons: [¶] The Abstract of Judgment and Minute Order reflect Count 12,
    Health and Safety Code Section 11359, Poss Marij F/Sale, upper term 3 years, plus an
    enhancement pursuant to Penal Code (PC) Section 186.22(b)(1) sentenced 10 years
    consecutive to Count 12. Penal Code [s]ection 186.22(b)(1) reflects, „If the felony is a
    serious felony as defined in subdivision (c) of Section 1192.7, the person shall be
    punished by an additional term of 5 years. If the felony is a violent felony, as defined in
    subdivision (c) of Section 667.5, the person shall be punished by an additional term of 10
    years.‟ Health and Safety Code [section] 11359 is not a serious or violent felony,
    therefore, the [Penal Code s]ection 186.22(b)(1) enhancement carries a range of 2, 3, or 4
    years. [¶] May the Court please note that the information does not reflect Count 12 and
    we are not in receipt of amended charges. We ask the Court to please clarify the
    sentencing in this case.” Apparently, neither plaintiff nor his public defender took any
    action to correct the sentencing error, nor did the trial court or the District Attorney. On
    June 19, 2006, the Department again sent a letter to the sentencing court requesting a
    response to its March 16, 2006, letter. In November 2007, the Department received an
    amended abstract of judgment and minute order concerning plaintiff‟s sentence.
    Plaintiff‟s release date was then recalculated, and, according to plaintiff, he was released
    8
    on November 28, 2007. Ms. Elliott testified that when plaintiff‟s sentence was ultimately
    corrected, she calculated that he had been over-detained by 518 days and should have
    been released on June 26, 2006.
    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 requirements of the Claims Act?
    [¶] The Court agrees that these questions, at minimum, will be individualized as to each
    classmember, the resolution of which will be required in order to determine whether the
    Defendants are liable for overdetention. If there was a lawful reason for the
    overdetention, then this would have to be resolved as to each putative classmember to
    even assess whether the person is a member of the class. [¶] Plaintiffs contend that the
    only question is whether overdetention occurred and if so, what compensation is due.
    However, whether overdetention occurred, and the reasons for that overdetention would
    require highly individualized assessments as to each inmate in order to determine the
    State‟s liability.”
    “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 [the
    Department] engages in several calculations to come up with the [earliest possible release
    9
    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. 98-4111) 
    1998 U.S. Dist. LEXIS 23844
    ]), 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.”
    “For the foregoing reasons, the motion for class certification is denied. While the
    Court is troubled by the evidence suggesting that 594 inmates during the class period may
    have been overdetained, the evidence before the Court shows that treating these as class
    claims would be unmanageable, due to the highly individualized assessments the Court
    would have to make. Under such circumstances, the class mechanism would not be the
    superior means of handling these claims, nor would it be superior to consolidate these
    10
    claims in a single action. Plaintiff has not otherwise demonstrated, by substantial
    evidence, that the elements supporting class certification are satisfied.”
    DISCUSSION
    A.     Denial of Class Certification
    1.     Standard of Review
    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,
    italics added.) “„“Any valid pertinent reason stated will be sufficient to uphold the
    order.”‟ [Citations.]” (Sav-On Drug Stores v. Superior Court (2004) 
    34 Cal. 4th 319
    ,
    326-27 (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 action, rather than on the merits of the
    11
    case [citations], in determining whether there is substantial evidence to support a trial
    court‟s certification order, we consider whether the theory of recovery advanced by the
    proponents of certification is, as an analytical matter, likely to prove amenable to class
    treatment. [Citations.] „Reviewing courts consistently look to the allegations of the
    complaint and the declarations of attorneys representing the plaintiff class to resolve this
    question‟ [Citations.]” (Id. at p. 327.)
    2.     Applicable Legal Principles
    The Supreme Court has emphasized that the class action procedure is rooted in
    equitable principles. “„The class action is a product of the court of equity—codified in
    section 382 of the Code of Civil Procedure. It rests on considerations of necessity and
    convenience, adopted to prevent a failure of justice.‟ [Citation.]” (Fireside Bank v.
    Superior Court (2007) 
    40 Cal. 4th 1069
    , 1078.)
    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. [Citations.] 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.)
    12
    3.      Analysis
    a.      Predominance of questions of law or fact
    On the community of interest element, the trial court concluded that plaintiff had
    not provided evidence of a common policy or practice that caused the over-detentions
    and which could therefore be the basis for a classwide adjudication on liability. There
    was substantial evidence to support that conclusion.
    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 over-detentions 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 over-detentions. 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 over-
    detention 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 over-detention 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.
    13
    Thus, even assuming plaintiff could establish defendants‟ liability to him based on
    the seemingly unique and highly individualized facts that gave rise to his over-
    detention—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 over-detentions 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.
    Plaintiff‟s apparent suggestion that the mere fact that the miscalculations occurred
    supports an inference that they must have been the result of some uniform policy or
    practice. But that suggestion avoids the essential question that must be answered in order
    to certify the alleged class—what was the alleged cause, or what were the alleged causes,
    of the miscalculations? The fact of the over-detentions, standing alone, was insufficient
    to show that they were the proximate result of defendants‟ uniform classwide conduct,
    and could not, without more, support a finding of liability on a classwide basis. “„What
    matters to class certification . . . is not the raising of common “questions”—even
    droves—but, rather the capacity of a classwide proceeding to generate common answers
    apt to drive the resolution of the litigation. Dissimilarities within the proposed class are
    what have the potential to impede the generation of common answers.‟” (Wal-Mart
    Stores, Inc. v. Dukes (2011) ___ U.S. ___, 
    131 S. Ct. 2541
    , 2551, quoting Nagareda,
    Class Certification in the Age of Aggregate Proof (2009) 84 N.Y.U. L.Rev. 97, 132.)
    We note that although plaintiff submitted evidence that 594 inmates may have
    been over-detained 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 over-
    14
    detained was statistically significant. If 1,000 or fewer inmates were released during the
    covered time period, the fact that 594 of them were over-detained may well have been
    indicative that the over-detentions 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 over-detained would not necessarily tend to show the
    existence of a policy or practice.
    Even if the over-detentions alone were sufficient to show a uniform policy or
    practice, there was nothing before the trial court tending to show that the policy or
    practice was the result of “deliberate indifference” on the part of defendants, as alleged in
    the complaint. To the extent plaintiff‟s Civil Code section 52.3 and common law false
    imprisonment claims were based on underlying Constitutional violations, evidence
    tending to show such deliberate indifference on a classwide basis would be required.
    (See City of Canton v. Harris (1989) 
    489 U.S. 378
    , 388-389 [if the constitutional
    violation upon which a 42 U.S.C. section 1983 claim is based is the result of a public
    entity‟s deliberate indifference to the constitutional right in issue, the entity may be liable
    for the violation].) Instead of making such a showing, plaintiff contends that deliberate
    indifference to the putative class members‟ rights can be presumed from the fact of the
    over-detentions alone. But, there must be allegations and some proof reasonably tending
    to show a specific policy or practice to support an inference that a defendant public entity
    implemented the policy or practice with deliberate indifference toward the inmates‟
    rights. (See, e.g., Vanke v. 
    Block[, supra
    ,] 
    1998 U.S. Dist. LEXIS 23488
    at * 1 [sheriff
    maintained an alleged policy of continuing to hold pretrial detainees who were entitled to
    be released after acquittal or dismissal of charges against them in order to check for
    warrants, wants, and holds].)
    Here, the evidence concerning plaintiff‟s over-detention 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 over-detention had shown that defendants acted with
    15
    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 over-detention—
    which raised a serious question whether defendants were liable for his alleged over-
    detention 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 over-detained:
    (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 over-
    detention was not susceptible to classwide or common proof because of a lack of
    predominant questions of law or fact.
    b.     Typicality of claims
    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 over-
    detention, the trial court‟s finding on the typicality element was supported by substantial
    evidence and therefore not an abuse of discretion.
    Fairly read, the operative complaint is based on the assertion that the Department
    miscalculated the putative class members‟ release dates based on a policy, pattern, or
    practice of the Department that proximately caused the alleged over-detentions. The
    evidence concerning plaintiff‟s over-detention, however, raised a reasonable inference
    16
    that the Department did not miscalculate his release date because the calculation was
    based, not on any policy or practice, but upon a lawful order of the trial court. Although
    plaintiff maintains in his reply brief that the Department should have detected the
    sentencing error earlier and done more to rectify it once it was discovered, those
    contentions are based upon an alleged mandatory duty—to detect and rectify sentencing
    errors—that appears to be different from the mandatory duty pleaded in the operative
    complaint—to calculate accurately release dates. That plaintiff‟s theory of liability
    against the Department now is apparently based on an alleged duty that is fundamentally
    different from the duty upon which the class members‟ claims were based supports the
    trial court‟s conclusion that plaintiff‟s claims were not typical of those allegedly held by
    the putative class members.
    In addition, the government tort claim form (Gov. Code, § 905.2) that plaintiff
    filed states that the value of his claim is $2,950,000. 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.
    B.      Appealability of Order Sustaining Demurrer
    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
    17
    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 certification. We agree with
    defendants that the order sustaining the demurrer is not appealable, and, for the reasons
    explained below, we dismiss the appeal from that order.
    1.     One Final Judgment Rule
    The Supreme Court made clear that “[u]nder the one final judgment rule, „“an
    appeal may be taken only from the final judgment in an entire action.”‟ [Citations.]
    „“The theory [behind the rule] is that piecemeal disposition and multiple appeals in a
    single action would be oppressive and costly, and that a review of intermediate rulings
    should await the final disposition of the case.”‟ [Citations.] [¶] The one final judgment
    rule is „a fundamental principle of appellate practice‟ [citation], recognized and enforced
    in this state since the 19th century. [Citations.]” (In re Baycol Cases I & II (2011) 
    51 Cal. 4th 751
    , 756 (Baycol).)
    2.     Death Knell Exception
    The Supreme Court described the “death knell” exception to the one final
    judgment rule for class actions, saying, “The right to appeal in California is generally
    governed by the „one final judgment‟ rule, under which most interlocutory orders are not
    appealable. (See Code Civ. Proc., § 904.1.) (Footnote omitted.) In Daar v. Yellow Cab
    Co. (1967) 
    67 Cal. 2d 695
    [
    63 Cal. Rptr. 724
    , 
    433 P.2d 732
    ] (Daar), however, concerned
    that orders dismissing all class action claims might in some instances escape review, we
    adopted a „death knell‟ doctrine that allowed a party to appeal such orders immediately.”
    
    (Baycol, supra
    , 51 Cal.4th at p. 754.)
    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
    18
    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 plaintiff.‟ 
    (Daar, supra
    , 67 Cal.2d at p. 699, italics added.) We emphasized that permitting an appeal was
    necessary because „[i]f the propriety of [a disposition terminating class claims] could not
    now be reviewed, it can never be reviewed‟ (ibid.), and we were understandably reluctant
    to recognize a category of orders effectively immunized by circumstance from appellate
    review. This risk of immunity from review arose precisely, and only, because the
    individual claims lived while the class claims died. As the United States Supreme Court
    has explained, „[t]he “death knell” doctrine assumes that without the incentive of a
    possible group recovery the individual plaintiff may find it economically imprudent to
    pursue his lawsuit to a final judgment and then seek appellate review of an adverse class
    determination.‟ [Citations.]” 
    (Baycol, supra
    , 51 Cal.4th at p. 758.)
    3.      Appealability of Ruling on Demurrer Generally
    As plaintiff conceded in his opposition to the motion to dismiss, it “is settled that
    an order sustaining a demurrer is not appealable. [Citations.]” (Evans v. Dabney (1951)
    
    37 Cal. 2d 758
    , 759.) “An appeal does not lie from an order sustaining a demurrer
    without leave to amend [citations], from an order sustaining a demurrer with leave to
    amend [citation], or from an order granting a motion for judgment on the pleadings
    [citation].” (Singhania v. Uttarwar (2006) 
    136 Cal. App. 4th 416
    , 425.) Instead, an
    19
    “„order sustaining a demurrer . . . is generally reviewable on appeal from the final
    judgment in the action.‟ [Citations.]” (Ibid.)
    4.     Section 906 Prerequisites to Review of Interim Orders
    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.)
    5.     Analysis
    Recent case law explains that section 906 does not apply to interim orders that are
    unrelated to the appealable judgment or order from which an appeal is taken. For
    example, in Cahill v. San Diego Gas & Electric Co. (2011) 
    194 Cal. App. 4th 939
    (Cahill),
    the defendant utility company appealed from the trial court‟s order granting the cross-
    defendant property owners‟ motion to confirm the good faith of a settlement under Code
    of Civil Procedure section 877.6 and dismissing the utility company‟s cross-complaint for
    equitable indemnity against the property owners. The utility company also sought to
    appeal from an earlier order denying its motion for summary judgment on the plaintiff‟s
    personal injury claims against the company. On appeal, the plaintiff filed a motion to
    dismiss that portion of the appeal seeking review of the trial court‟s order denying
    summary judgment, arguing that the order was nonappealable. (Id. at pp. 945-946.) The
    utility company opposed the motion, contending that although an order denying summary
    20
    judgment is ordinarily nonappealable, it could nevertheless be appealed as an interim
    order made appealable under section 906. (Ibid.)
    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.4 (Id. at p. 949.) In reaching
    that conclusion, the court in Cahill analyzed the three alternative requirements set forth in
    section 906 that allow appellate review of a nonappealable order. “We conclude none of
    section 906‟s three alternative prerequisites to allowing review of a nonappealable,
    intermediate order apply in this case. First, the order denying [the utility company‟s]
    motion for summary judgment against [the plaintiff] does not „involve[] the merits‟ of the
    order appealed from (i.e., the order dismissing [the utility company‟s] cross-complaint for
    equitable indemnity against [the property] [o]wners). (§ 906.) The order appealed
    involves the question whether the trial court erred in determining whether [the property]
    [o]wners‟ settlement with [the plaintiff] was made in good faith. The order denying [the
    utility company‟s] motion for summary judgment against [the plaintiff] does not involve
    the merits of that appealed order, but instead involves the question whether there are any
    triable issues of material fact precluding summary judgment on [the plaintiff‟s] personal
    injury claims against [the utility company]. . . . ”
    “Second, the order denying [the utility company‟s] motion for summary judgment
    against [the plaintiff] does not „necessarily affect[]‟ the order appealed from (i.e., the
    order dismissing [the utility company‟s] cross-complaint for equitable indemnity against
    4
    In reaching this conclusion, the court in 
    Cahill, supra
    , 
    194 Cal. App. 4th 939
    determined that the trial court‟s order granting the plaintiff‟s section 877.6 motion and
    dismissing the utility company‟s cross-complaint was a final order from which the utility
    company could appeal. (Id. at p. 945, fn. 3.) Assuming, without deciding, that the Cahill
    court was correct in concluding that a nonsettling party that remains in the action may
    seek review of a Code of Civil Procedure section 877.6 determination of good faith by a
    direct appeal (but see Oak Springs Villas Homeowners Assn. v. Advanced Truss Systems,
    Inc. (2012) 
    206 Cal. App. 4th 1304
    , 1308-1309), we agree with the balance of the analysis
    in Cahill concerning the application of section 906 to the interim order denying the
    summary judgment motion.
    21
    [the property] [o]wners). (§ 906.) . . . The second alternative section 906 prerequisite
    for review of a nonappealable order in this case is not whether the order denying [the
    utility company‟s] motion for summary judgment could affect the order dismissing its
    cross-complaint against [the property] [o]wners, but rather whether it necessarily affects
    the order dismissing its cross-complaint.‟ . . . Contrary to [the utitlity company‟s]
    assertion, we conclude the trial court‟s order denying [its] motion for summary judgment
    against [the plaintiff] does not „necessarily‟ affect the order dismissing [the utility
    company‟s] cross-complaint for equitable indemnity against [the property] [o]wners.
    (§ 906.) If the trial court correctly denied [the utility company‟s] motion for summary
    judgment against [the plaintiff], that decision would not necessarily affect its order
    dismissing [the utility company‟s] cross-complaint for equitable indemnity against [the
    property] [o]wners. . . . [¶] . . . [¶]”
    “[Finally, p]ursuant to section 906, a nonappealable intermediate order that
    „substantially affects the rights of a party‟ may be reviewed in conjunction with an appeal
    of a final judgment or appealable order. The clear import of that provision is to allow an
    appellate court to review rulings, orders, or other decisions that led up to, or directly
    related to, the judgment or order being appealed to the extent they substantially affected
    the rights of one of the parties to the appeal. . . . [¶] Therefore, nonappealable orders or
    other decisions substantively and/or procedurally collateral to, and not directly related to,
    the judgment or order being appealed are not reviewable pursuant to section 906 even
    though they literally may „substantially affect[]‟ one of the parties to the appeal.”
    (
    Cahill, supra
    , 194 Cal.App.4th at pp. 946-948.) The court added that a contrary
    interpretation “could allow one party to the direct appeal to, in colloquial terms, „open the
    floodgates‟ and bring into the appeal all sorts of collateral or other unrelated intermediate
    decisions that do not affect the other party to the appeal or the appealed decision, thereby
    potentially increasing exponentially the issues to be addressed on appeal and the use of
    limited judicial resources to decide those issues.” (Id. at p. 948.)
    In the recent decision in Oiye v. Fox (2012) 
    211 Cal. App. 4th 1036
    (Oiye), the
    court similarly concluded that an interim order that is unrelated to the final judgment or
    22
    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 plaintiff. The
    defendant appealed from the order, including that portion which required him to produce
    documents. (Id. at pp.1046-1047.) In response, the plaintiff contended that the portion of
    the order compelling discovery was nonappeable. (Id. at p. 1060.)
    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,
    23
    “[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 necessarily affect one another. Therefore, the ruling on the demurrer
    is not appealable under section 906 as necessarily related to the directly appealable order.
    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 Ins. Co.
    (2010) 
    183 Cal. App. 4th 1390
    (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 defendant 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[, supra
    ,] 
    67 Cal. 2d 695
    [
    63 Cal. Rptr. 724
    , 
    433 P.2d 732
    ], under
    24
    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.” (Id. 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.
    25
    DISPOSITION
    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.
    CERTIFIED FOR PUBLICATION
    MOSK, J.
    We concur:
    KRIEGLER, J.
    O‟NEILL, J.
    Judge of the Superior Court of the County of Ventura appointed by the Chief
    Justice pursuant to article VI, section 6 of the California Constitution.
    26