*1 Sept. 23055. Bank. [S.F. 1974.] No. In JOSE, Petitioner, OF SAN
CITY COUNTY, OF THE COURT SANTA CLARA Respondent; SUPERIOR al., UNLIMITED et Real Parties in Interest. LANDS *5 Counsel Fenton, Jr., Jones &
Hoge, Charles H. Brock and H. R. for Lloyd, Appel, Petitioner. Pines, Sherman,
Burt Milton Assistant N. City Attorney, City Attorney, Einboden, James H. J. Pearson Ronald Deputy City Attorneys, Amici Curiae on behalf of Petitioner. .
No appearance Respondent. Hammer, & W. Robert Becklund, Siner,
Morgan, Taketa Beauzay Morgan, Dawson, Fadem, Salle, Goldstein, Goldstein, & Barceloux & J. William Kanner, & Stocker and Michael M. for Real Parties in Berger Berger Interest.
Opinion CLARK, are the trial court abused J. We called on to determine whether its discretion in this case to as a class action. certifying proceed
Plaintiffs, interest, real in filed an action against petitioner- parties defendant, Jose,1 of themselves and all real San on behalf City property convenience, literary petitioner proceed the in this 1 For defendant trial court — ing parties to “plaintiffs” be referred defendant. The reference to as —will —real class proceeding only plaintiffs this to the and not to the unnamed refer named —will members. Jose Airport. situated in the flight Municipal pattern owners .San of their in the market value for diminution property recovery Seeking vibration, on noise, dust, they and proceed caused aircraft by vapor, condemnation. theories nuisance and inverse and to we
Following discovery
in Vas-
pursuant
procedures
suggested
quez v. Superior
Court
Defendant then the trial sought extraordinary first contending court, motion, for lack of was without to certify proper jurisdiction class; second, that the had court abused its discretion in certifying (a) class because: The claims statutes the maintenance of class prohibit entities; (b) actions against there is insufficient governmental community members; of interest (c) class are among purported plaintiffs the class. Because the issues raised are sub inadequately representing stantial, we issued alternative writs of and mandate. prohibition class,
We conclude the trial had court but jurisdiction certify facts, it its under abused discretion in so. doing Proper
Lack Motion was without jurisdiction certify Defendant contends court was the, the class suit as motion before court because appropriate This argument limited that the class was not determining appropriate. lacks substance. innovative, encour-
This court has trial courts to be urged procedurally sources in determining them to from outside aging incorporate procedures suit. More whether to allow the maintenance of class specifi- particular Pro- we directed Rules of Civil have them to rule 23 of the Federal cally, cedure,3 as after the commencement which “As soon provides: practicable action, order the court shall determine of an action brought Proc., rule (Federal it is to be so Rules Civ. whether maintained.” determination either 23(c)(1).) made on motion of This bemay plaintiff *7 Miller, Federal & or defendant —or on court’s own motion. (Wright challenges proceed. No go only ability of the class action 2 Defendant’s to the actions, individual plaintiffs’ question propriety raised as to the of the three named is $500,000. damages cumulatively which seek of Court, 800, supra, Vasquez Superior 821. 4 v. Cal.3d 3 See 454 Procedure, 1785, followed 128.) The and procedure
Practice p. § City v. Baton in Johnson to that trial court here is identical approved of 295, Rouge, (E.D.La. 1970) 50 F.R.D. 298. Louisiana its own not on may to defendant’s claim court is there merit Nor is under mandatory Notice order notice to members. motion as soon as 23(c)(2)) be ordered (rule possible rules should federal Miller, & (Wright the class action after court determines appropriate. of noti 1788, of the constitutional Because importance p. § court —such before the suddenly absent class .are members —who fying litigants. should not be left to whim of notice notice, were the class but order here did not determine the form in further be determined form could action to be upheld, appropriate court trial proceedings.
Ability Satisfy the Claims Statutes Defendant asserts the trial court abused its discretion in this certifying class because the claims statutes maintenance of class purported prohibit actions entities for inverse against governmental condemnation and nui- It sance. contends a class claim can never be filed which would fulfill the statutory on to this effect in v. requirements, relying language Bozaich (1973) State 32 688 Cal.App.3d Cal.Rptr. [108 392]. of California In defendant’s we contention start from certain well-settled considering foundations; entities, In actions for local against claims damages public statutes of a claim as timely condition require filing proper precedent Code, 905, 945.4; (Gov. County the maintenance of the action. San §§ Obispo v. (1971) 383, Luis Ranchita Cattle Co. 16 390 Cal.App.3d [94 73].) with the claims statutes is Cal.Rptr. mandatory Compliance County 624, 570, v. (Farrell (1944) Placer 630 P.2d [145 323]); 153 A.L.R. and failure to file a claim is fatal to the cause of action. 181, (Johnson City (1961) Oakland Cal. Cal.App.2d [10 Rptr.
The claims statutes to actions both for provisions apply brought (Bellman County nuisance for inverse condemnation. Contra (1960) 300]; Costa 54.Cal.2d 353 P.2d Dorow Cal.Rptr. [5 County v. Santa Clara Flood Control Dist. Cal.App.3d 518]; County Mosesian v. Fresno Cal.Rptr. Cal.App.3d 655].) The fact that inverse is condemnation I, (art. 14) founded on California Constitution neither ex directly § cuses from with the claims statutes Farms v. (Powers plaintiffs compliance
455
Irr.
(1941)
123,
Consolidated
Dist.
717];
19 Cal.2d
126
P.2d
Dorow
[119
Dist.,
County
v. Santa Clara
389,
Flood
supra,
Control
4
391-
Cal.App.3d
392), nor renders the claims statutes
(Crescent
unconstitutional.
Wharf
Angeles
etc. Co. v.
(1929)
Los
P.1028];4
We cannot this contention. It is not the accept of purpose Rather, claims statutes to prevent of these statutes is surprise. purpose provide sufficient information to it public entity enable to adequately them, claims and to investigate settle if without the of appropriate, expense (Eastlick City 661, v. Los litigation. Angeles (1947) 29 Cal.2d 667 558, 225]; P.2d 170 A.L.R. Jackson (1967) [177 v. Board Education 856, 763].) It is well-settled Cal.App.2d that claims [58 statutes must be satisfied even in face of the actual knowl entity’s public of the circumstances edge the claim. Such surrounding knowledge— alone—constitutes standing neither substantial nor basis for compliance (Hall City Angeles 198, v. Los (1941) estoppel. 19 Cal.2d 203 [120 13]; Dist., P.2d Powers Farms v. supra, 123, Consolidated Irr. 19 Cal.2d 130; Oakland, City Johnson v. 181, 184; Allen Cal.App.2d of. City v. L. A. Board (1959) Education Cal.App.2d [343 170]; City P.2d South (1946) San Francisco Ghiozzi 72 Cal.App.2d 902]; Eppstein City P.2d Berkeley 52 Cal. P.2d App.2d
Thus, the trial court’s having rejected rationale for the claim suf- finding ficient, we turn to defendant’s contention that impossible it is and, claim to satisfy therefore, claims statutes prohibit the statutes maintenance of such actions entities. against governmental Code, (Gov. 910) claims statute applicable “A provides § part: claim shall be by claimant or on his presented person acting behalf and shall (a) show: The name and office address of the post [¶] claimant; (b) The office address to which post [¶] the person presenting grounds 4 Overruled on other in Wilson v. Beville 861 [306 P.2d 789]. *9 456 sent; date, The and other cir- (c) notices to be
the claim desires place [¶] which rise to the claim of the occurrence or transaction gave cumstances the date of asserted; (f) . amount claimed of . . and presen- [¶] claim, amount of any tation of the estimated including prospective loss, as it be known at the time of may or insofar pre- injury, damage, claim, of the with the basis of amount together sentation computation claimed.” in a class claim to
In of information determining quantity required section, we note the cases suf- gauging of above satisfy provisions of claims must be divided into two ficiency groups. treats where there has been some with all
The first claims compliance (See, has been Rowan elements —but e.g., required compliance defective. City etc. 244 308 San Francisco Cal.App.2d [53 of V. (described “3358- accident as “3350 instead of of Scott St.” place 88] Oakland, St.”); City supra, 3360 Johnson v. 188 181 Scott Cal.App.2d of (indicated accident of 35th instead of occurred front 1819 Avenue 1819 34th-Avenue); City Angeles (1955) Johnson v. Los 134 Cal.App.2d of (indicated 600 P.2d accident on southeast corner in- occurred 713] [285 Atchison, intersection); stead southwest Sandstoe v. T. & S. F. of corner of (verified Ry. Co. P.2d father 215 28'Cal.App.2d 216] child).) instead of claimant minor In these cases the test of “substantial there controls: Is sufficient information disclosed on face compliance” the filed of claim to enable the to make an ade- reasonably entity public of the merits of the claim and to settle it without the investigation quate aof lawsuit? expense Here, the second of cases the courts have been less lenient.
In group claims were for failure to with a successfully entirely challenged comply City Angeles, (See, Hall v. Los statutory requirement. e.g., particular of supra, (failure accident); LaPay v. 19 Cal.2d to state of Whitson place unverified); (claim (1957) 153 P.2d Cal.App.2d 45] Ghiozzi Francisco, City supra, (failure South to state v. San Cal.App.2d of occurrence); City Berkeley, supra, Eppstein date and place claimant).) (failure to state address of In determining Cal.App.2d claims, such liberal test of substantial more sufficiency compliance has not been courts applied recognizing compliance “[substantial —the Angeles, City cannot Los no predicated upon compliance.” {Hall Oakland, 198, 202; City supra, Johnson v. 188 Cal. 181, 183.) App.2d that the sufficiency
From these two we conclude gauge groups, claim, two tests shall be Is there some particular compliance applied: and, so, all of with if is this statutory suf- requirements; compliance ficient constitute substantial compliance? *10 ascertain
To the of information in a class claim to quantity required test, the threshold satisfy “some we must first determine the compliance” of “claimant” in section as it relates to a class. There are two meaning 910 alternatives: can with each individual mem- “Claimant” either equated ber of the class or with the class itself. 910, “claimant,”
We conclude as used in section must be equated with the class itself and therefore the reject necessity filing suggested an individual claim for each the class. To member of purported require such detailed re severely information in advance of the complaint the strict maintenance of class to contrary appropriate recognized actions — Proc., 382; Supe (Code Vasquez them. v. Civ. see also policy favoring § Court, 4 statutes supra, rior Cal.3d We do not believe the claims were intended to thwart class relief.5
Moreover, class is with treatment of the as claimant consistent treating the While section 422.40 class for filing purposes complaint. of the Code of name the Civil Procedure “parties,” requires complaint an it is settled the need the existence of ascertain establish pleading Yellow Cab (Daar class v. able rather than name each member of the class. 695, 724, 732].) 433 P.2d Cal.2d Co. Cal.Rptr. [63 statutes, Thus, class must claim satisfy provide claims name, address, represen concerning and other information specified ascer and make identify tative and then sufficient information to plaintiff statutory would meet tainable the class itself. Because such information address, the class would any to identify of name and effort requirements this, of the iden compliance sufficiency some test. satisfy Beyond compliance test. the substantial information must be measured by tifying It is therefore clear a class claim may the claims statutes satisfy requir Thus, we conclude these statutes do not class ac ements. prohibit tions against entities for inverse and nuisance. governmental condemnation
However, defendant next that even if some class claims argues satisfy the statutes, the claims filed claim here failed to do so because the description of the class as those situated” is insufficient to constitute people “similarly substantial compliance. California, 5 Language indicating contrary State conclusion in Bozaich 688, holding Cal.App.3d light must be read of that of its in its court’s limitation 5, page recognizing possibility
footnote proper claims. above, rationale While, the “no surprise” we cannot accept noted here, decide we not need the claim filed which trial court approved available is relief not Extraordinary was this claim sufficient. whether Clara (County Santa with claims statutes. defective remedy compliance 547-551 Superior Court Cal.3d (1942) Superior Court 774]; etc. Sch. Dist. v. Redlands P.2d P.2d Community Insufficient Interest *11 next the trial discretion Defendant contends court abused its by this class because there is an insufficient of interest. certifying community The contention is correct. action a court of class is in product equity —codified
section 382 of the Code on of Civil Procedure. It rests considerations of convenience, (Daar a necessity and to failure of justice. adopted prevent Co., Yellow supra, 695, 703-704.) v. Cab Cal.2d 61 But while this section was to class actions justice, may foster designed create The class an absent class member injustice. may action deprive claim, his a defendant from opportunity independently press preclude fullest, each individual to its and even a defending litigant claim deprive Interpleader: (Note, and constitutional Class Actions right. California 120; Simon, (1953) Procedure and the Federal Rules 6 Stan.L.Rev. Class Engine Tool or 7 (1971) Destruction Lincoln L.Rev. Actions—Useful 20, 22; Note, (1971) Vasquez Superior Comments on v. Court 18 1041, 1052, 50, 1064.) U.C.L.A. L.Rev. fn. that,
The initial to these was their dangers response despite widespread v. (Comment, Vasquez Su- class suits were restricted. recognition, largely County: A in Fraud perior Joaquin Court San Class Action Consumer However, times, 165, (1971) 8 recent Cal.Western L.Rev. more this restrictive as class actions been utilized tendency has have dissipated more to meet the number of extensively alleged growing “group wrongly in an increasingly society. complex has the re- with class in the this court eliminated
Dealing actions past, Superior (1962) (Chance of a “common v. Court fund” quirements 275, 761, 849]); recovery” Cal.2d 373 P.2d “common Cal.Rptr. [23 Co., 707); 695, v. (Daar supra, necessity Yellow Cab 61 Cal.2d v. Tourna- (Weaver that class Pasadena members “necessary parties.” P.2d It has ment Roses 32 Cal.2d adopted to make the use of class more again, urging new suits procedures effective— Court, supra, (Vasquez Superior trial courts to be innovative. 800, 820-821.) Cal.3d actions, it has not
However, of class this court’s general support despite or of the limited been unmindful of the of injustice dangers accompanying Instead, it has within which these suits serve beneficial scope purposes. benefits trial consistently carefully weigh admonished courts respective sub class action where and burdens and to allow maintenance of the (Collins v. Rocha stantial benefits and the courts. accrue both litigants 225]; Vasquez Cal.3d 497 P.2d Co., Court, 810; Cab Superior supra, 4 Cal.3d Daar v. Yellow 695, 713.) It has that the same facilitating also urged procedures non- where they class actions be used to suits prove proper prevent beneficial.6 court,
The trial
these
certified the class
utilizing
procedures,
appro-
there is as much
priate
concluding
of interest here
community
as in Daar
—
Vasquez.
It further
belief that recent decisions
this court
expressed
cast
doubt on
continued
of older
validity
cases such as Weaver v.
*12
Roses,
Pasadena
supra,
Holding cannot be maintained where each member’s case, to recover right on facts to his Weaver depends peculiar remains viable in this state. The rule exists the because of in community terest is not satisfied if member of the requirement every alleged would be to numerous and substantial required litigate determin questions his individual to ing recover right “class deter following judgment” issues common to the mining (32 838-840, class. Cal.2d at purported pp. 842-843.) ——J
This court has consistently continued of this rule. recognized validity Co., (See 695, 704-705, Daar v. Yellow supra, 707-708; Cab Cal.2d 61 Court, Superior Chance v. supra, 275, 285; Vasquez Superior 58 Cal.2d v. Court, supra, 800, 809, Rocha, 4 811, 815-816; Cal.3d supra, Collins v. 232, 1 Cal.3d 237-238.) Most in Stephens Gerhard v. significantly, (1968) 612, 68 Cal.2d 692], court, 442 P.2d this Cal.Rptr. [69 “ rule, based on this suit, refused to a class certify stating, ‘Applicable preo- Court, Vasquez Superior In supra, 800, 820-821, v. 4 Cal.3d this court utilized Legal hearing Consumers Remedies a provide plaintiff Act to wherein required be to maintaining demonstrate appropriateness action a class. Additionally, 23(c) it incorporated provisions of rule Federal Rules of Civil Procedure to make the trial court’s certification of the class so that conditional the court would respond be able to appear inappropriate. should class later the ascertainable class requirement they
edents indicate that observing to the that a are at the same time giving group recognition principle recover, which is on a set of individuals’ to each of based separate rights facts, a class action.’ be determined cannot judgment [Citation.]” 912.) at (68 Cal.2d p. likewise the continued
The Courts of have recognized validity Appeal (See, ex- Weaver, to classes the rule where refusing certify applied. 694-696; 688, California, supra, v. State Cal.App.3d Bozaich ample, Assn., 270, Digest Stilson v. Reader’s Inc. 28 Cal.App.3d Cal. Corp. (1971) 20 581]; Diamond v. General Motors Cal.Rptr. 47 A.L.R.3d App.3d
In whether sufficient determining community interest exists to action, justify maintenance of class we start from certain settled prem ises: Before the aof on absent can be imposition judgment binding parties it justified, must be shown that substantial benefits both to the and litigants Co., (Daar the court will v. supra, result. Yellow Cab Cal.2d 713; Court, Vasquez Superior supra, v. 4 Cal.3d The burden Court, of such a falls on (Vasquez Superior showing plaintiff 800, 820), and the ultimate determination of whether the class action is turns on the existence extent appropriate of common ques and tions above, of law and fact. As noted each member must not be required numerous individually and substantial litigate determine his questions to recover right the class and the following issues which judgment; may tried, when jointly with those compared requiring separate adjudication, must be sufficiently numerous substantial to make the class action ad Rocha, to the vantageous judicial (Collins to the process litigants. *13 supra, 7 Cal.3d
In these it must be concluded the facts applying premises, instant do not a of interest present community Vasquez. to Daar or comparable cases, In those the issue of the defendant’s to the class a liability as whole could be determined facts common to all. by to class could be Liability established evidence by defendant an scheme to cheat or engaged illegal with a overcharge from defendant’s own books patrons, coupled showing that defendant was successful in his scheme.7
However, the action for nuisance and inverse condemnation is present Rocha, 232; 7 Similarly, Collins v. & see La Sala v. American Sav. 1113]; Loan Assn. Cal.Rptr. Cal.3d 864 P.2d Metowski [97 Corp. (1972) 599]; Coberly- Traid Cal.App.3d Cal.Rptr. Fanucchi v. 332 [104 33]; West Co. Diamond v. General Mo Cal.App.2d 72 P.2d cf. Corp., supra, tors Cal.App.3d 374. on facts to each An predicated peculiar prospective plaintiff. approaching or aircraft or not rise to actionable nuisance or may may departing give a inverse condemnation on of individualized myriad evidentiary depending all, factors. While or be a fact to common landing departure may liability can be established after extensive examination of the circumstances use, each surrounding zoning, party. Development, topography, physical condition, and relative location are criteria to many among important factor, level,8 considered. No one not even will be as noise determinative to all parcels. character, and
The uncontradicted evidence reveals development, class are diverse. Within the uses of of this geographic region proposed warehouses, are industrial buildings, body gas region plants, public shops, stations, residences, office family multi-unit buildings, single apartments, bisected a vacant land —some farmed. The is being by major region and bounded a a railroad by highway. Finally, right-of-way thoroughfare . through passes portion proposed region. case, of Weaver to this
Plaintiffs avoid attempt application class, to sustain the the need individual evalua- thereby by avoiding the class to divide the of land They tion. attempt represented parcels determine, the diminution subclassifications and then to group, into scheme fails in for all members in each subclassification. This in value two respects.
First, all liability the scheme necessarily disregard requires plaintiffs (i.e., for other actual damage injury forms physical property). below, As we shall a class not be conclude may representative Hence, allowed to commit such a breach of a duty. fiduciary proposed is classification system unacceptable.
Second, that the scheme is with the fundamental maxim incompatible 3387; (Civ. Code, Porporato each of land is see also parcel unique. § (1968) 261 Cal.App.2d Devincenzi law, this
Although rule was created at common factors very giving it in the vitality of its take on added days genesis simple significance *14 stated, this modern era of are now more there development. Simply instance, may 8 For by airport it is conceivable the noise traffic cause no created actionable runway— interference immediately adjoining with land the end of the use, because noisy may that land is used a industrial while the air traffic be same causing giving substantial liability single family interference rise to to a residence away. Similarly, agricultural compare opposed miles vacant to those lots zoned zoned residential. Contrast a home built a area with one in the heart of residential built next to the railroad tracks. characteristics and criteria which each of land differs from by every piece other. decline alter this rule of
We substantive law to make class actions more available. Class actions are as a means to provided only enforce substantive law. the substantive law to Altering accommodate would be to confuse the means with the ends—to sacrifice the procedure for the goal going.9
Moreover, even here, were we to allow a subclassification process factors rule would giving vitality serve to break uniqueness down alleged beneficial which such a under these aspects might yield process facts, a making class action here Given the unmanageable. many recognized factors land, to make combining of each up uniqueness parcel number of subclassifications into which class would be required meaningful divided to yield Then, any result would be substantial. because is liability here noise, on like the predicated variables degree and vibration, the vapor, is problem factors of distance compounded and direction these affecting variables. The result a becomes statistical and permutation, number of subclassifications requisite quickly ap- proaches total number of circumstances, in the class. parcels Under such there is little or no benefit in as a maintaining action class. these factors
Conversely,
weigh heavily
favor of
uniqueness
requir-
to each
ing
litigation
liability
its owner.
independent
parcel
Because
here is
liability
on the
of certain activities on
predicated
impact
land,
a
the factors determinative of the close
particular piece
issue of
are the
liability
characteristics of that
specific
The
parcel.
grouping
of a
treating
however,
number of different
together,
parcels
necessarily
diminishes the
to evaluate the merits of
ability
each
parcel.
superficial
which class
adjudications
treatment
here
entail could
either
deprive
the defendant or the members of the class—or both —of a fair trial. Reason
and the constitutional
mandates
due
us to
sanction
process compel
deny
such
proceeding.
9 The federal law on
is
class actions
in accord. Rule 23 was not intended to make
change
(see
in the
Proc.;
substantive law
rule
Fed. Rules Civ.
Zahn v. Inter
Paper
(1973)
national
Co.
505]; Snyder
Inadequacy also conclude We the trial court abused its discretion in certi this class fying action for the reason the fail to plaintiffs adequately the members of the class. represent
To maintain a action, class must representative plaintiff adequately represent interests of other members of the protect Assn; (La class. Sala V. American & 864, Sav. Loan 871- 849, 489 P.2d This is' a natural requirement of the consequence equitable origins action and is the product of the relation between part the res judicata éffect of the class on judgment absent members and the due (Hansberry v. Lee requirements process.12 U.S. 32 L.Ed. 741]; S.Ct. A.L.R. Carroll v. American Federation (2d Musicians U.S. & 1967) Can. Cir. F.2d Court, 10 Our Vasquez Superior decision here is consistent with where we pointed out possibility dividing (4 a into class subclassifications. Cal.3d 821.) This explicit decision serves to implicit make what was there there are —that limits of which outside system'ceases subclassification perform sufficiently useful justify function to the maintenance of the class action. The instant situation represents merely example falling an of facts outside these limits. 11 The federal cases are similarly disallowing in accord in airport for actions (See Virginians Volpe nuisance and (E.D.Va. “inverse condemnation.” Dulles v. 1972) 573, 575; Airlines, 344 F.Supp. (D.Conn. Town East Haven v. Eastern Inc. 1971) 16, 18.) 331 F.Supp. 12 Similarly, federal law will not allow a class to be except “repre maintained sentative” party. party fairly This adequately must protect the interests of the (Rule 23(a), Proc.) class. Fed. Rules Civ.
464 class be alleged
The
here
represent
plaintiffs
inadequately
fail to raise claims
to be raised
they
reasonably expected
by
cause
which,
of the class and thus
a course
even should the
pursue
members
class,
be
would
members
resolved in favor
class
litigation
deprive
elements of damage.
many
in a successful nuisance action for
Damages recoverable
injuries
to real
include not
diminution in market value but also
only
property
inconvenience,
(Kornoff Kings-
for
annoyance,
and discomfort
damages
burg
(1955)
507]);
Cotton Oil Co.
It is clear rule, under California law a cannot, general as a party cause single a of action13 because the first bars' split judgment recovery a (3 Witkin, second suit on the same (2d cause. Cal. Procedure ed. result, 1971) Pleadings, 1715-1716.) a by As pp. seeking § value, diminution in market damages plaintiffs effectually be waiving, members, on behalf of the hundreds any possible recovery substantial or This potentially future. damages present they — not do. may
This has long been concerned with court representa requiring members, tive interests the absent class even im party protect do fiduciary (La so on the posing duty class member. representative Assn., Sala v. American Sav. & Loan 864, 871.) Cal.3d To ful fill this fiduciary duty must raise those claims representative plaintiff “reasonably (See, to be raised expected by the members of the class.” Circuits, Printed Ltd. v. (N.D.Ill. Methode Electronics 1968) Technograph 721.) under Clearly, the facts here members F.Supp. alleged of the class would to seek reasonably recovery expected damages beyond mere Thus, diminution in market values. certifying class, this the trial court sanctioned a clear violation of plaintiffs’ fiduciary duty.14 rule, 13 While there exceptions general protect are to this none would serve to (See member of adequately class here whose interests are represented. not
Witkin, (2d 1971) Cal. Pleadings, Procedure p. § ed. status, 14 While is clear the it class action proceed present cannot under its ordi narily representative plaintiff would be opportunity afforded cure inade quate amending representation by (La Sala v. complaint. Sav. & Loan American Assn., supra, 872.) Here, however, Cal.3d because could not amendment cure community interest, the failure affording of sufficient opportunity such would serve no useful function.
Conclusion here of interest community there is insufficient conclude we
Because of a fiduciary in violation because suit, and plaintiffs, class to sustain the alleged of the members represent fail adequately duty, class this certification of purported trial court’s class, the we conclude lies discretion, mandamus for which of abuse a substantial constitutes 800, 805-806, Court, Cal.3d supra, 4 Superior v. (Vasquez remedy. as a 278; Court, 275, State Farm supra, 58 Cal.2d 825; Superior v. Chance 13].) 428, P.2d 47 Cal.2d (1956) [304 Court Superior v. Ins. Co. etc. to vacate court is ordered The trial is granted. of mandamus The writ the order dismissing to enter an the class and certifying its order writ of The alternative pro- matter. the above-entitled of action portion discharged. hibition is J., Burke, J., McComb, J., concurred. C. and
Wright, TOBRINER, J. I dissent. discretion in abused its trial court whether the before us is issue
The however, no def- give The majority, as a class action. this case certifying In a one-sided presenta- of its discretion. that court’s exercise erence to the divide issues which the individual *18 and vibration values the use may and location upon upon property depend the of the determination to a of residence property, damage single family have may little in with common of a lot two damage proof parking homes, Yet a away. miles within subclass of issues single family common may issues; diverse over an for predominate might appraiser, example, it find same use the tools of and record of possible analysis comparable sales to the market value of a all residences in appraise neighborhood. Thus the of diverse the issues cited in the need presence majority opinion not the operate and the courts of the benefits class deprive parties of litigation. Court,
As we in suggested Vasquez Superior Cal.3d at page here, have the class could be into and as divided proposed plaintiffs trial. the court could of trial devise a Perhaps subclasses for purpose pro- trial on the of under which a common issues law and fact joint cedure be individual or subclass on diverse issues. hearings followed by the trial we courts to innovative Vasquez “adopt In enjoined procedures litigants which will fair to the expedient serving judicial 821); (4 we should not assume hastily Cal.3d at that the trial p. process” court’s will be to that task in the instant case. creativity unequal the subclassification
Rejecting by plaintiffs, bar proposed majority maintenance as a of this suit class action grounds: (1) on three that plain- class; tiffs do not (2) the members of the that subclassifi- properly represent cation offends against the that each of land is arid principle parcel unique; 1 The majority argument stress the that and individual the diverse issues in present fact, case damages. upon question liability bear as well In all diverse pertain here only proof damages. issues to the of the and amount of Plain existence tiffs, however, condemnation; assert counts for nuisance and counts in both inverse damage the existence of some is an essential element cause action. Thus in go liability a technical sense the issues in the to the present question diverse case damage that —in liability itself is essential an this factor does not element —but demonstrates, prove that predominate diverse issues here over issues. It in common stead, that the of liability damages distinction between issues and issues of is not determining tool desirability damage useful for of a action in class cases which independent controversy not an is but an element of cause action. that an number of unmanageable subclasses would be Each required. of these lacks grounds merit. class, to eliminate issues which affect order portion
In market limited their for to the diminution in damages prayer plaintiffs to seek additional for value caused and declined flights, damages inconvenience, or actual main- annoyance, injury. majority physical that failure to claim for harm constitutes a damages tain such plaintiffs’ breach of the to the class fiduciary duty owing by plaintiffs they represent.
This court
short shrift to a similar
in Chance v. Su-
gave
contention
perior
Court
Under these the assertion that the are not plaintiffs prop- class, defendant, erly when representing especially presented strikes note. The of majority hypocritical opinion speaks protecting of class members to be the right only but damages, destroys what'may efficient means of redress. The cost and of individual liti- inconvenience gation may well dissuade members of the class from very many instituting suits, individual and the result decision will then be that present such members will recover no for loss of market value nor damages other harm. any is
The assertion that subclassification in the case majority’s present both with the maxim that each of land is is incompatible unique parcel maxim, historically and unsound. This venerable which for logically centuries has served useful but limited purpose permitting equitable contracts, suits for has to do with of land sale specific performance nothing class actions. that land means each differs Uniqueness only parcel some from other as each differs in every particular just person parcel, classification, some from way every other valid or subclassifi- A person. cation, however, does that not all members of require possess characteristics; identical it the existence of “issues common requires their that adjudication so a whole sufficient in importance to the class as (Vasquez court.” v. and the the litigants will benefit both a class basis on of each character Court, The supra, Cal.3d at Superior p. unique that not, itself, concluding a court from of land prevent parcel justified all concerning of fact and law parcels the common issues subclassification. proposed on
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Finally, the assert majority that since the to each liability landowner will the use of each depend noise, and such as upon variables parcel, vapor, and vibration, factors of compounded by direction, distance and number of subclassifications a statistical required approaches permutation of these erroneous, elements. The is reasoning statistically since it assumes that each element listed If, is other independent every seems element. more noise, likely, the degree of and vibration each vapor, vary directly *20 with distance from then these flight path, elements are not independent factors and do not require (Cf. People classification. separate Collins 328-329 438 P.2d A.L.R. 3d 1176].) The majority’s meritless, is also reasoning legally for it assumes that each issue diverse subclass, the creation of a compels an as- separate conflicts, which sumption with the that litigation class principle requires that common issues over predominate diverse issues.2
What the majority overlooks are the opinion manifest benefits arising from the a use of class action to resolve the controversy noise concerning and vibration damage in Jose property vicinity San Municipal There are 733 Airport. within the area parcels described com- plaintiffs’ majority’s 2 The great assertion many required that a be subclasses would pure is record, supposition. The necessary, and the trial many before us does not indicate how subclasses will be finding subject. court no has rendered on that If later in this litigation the trial court discovers large that the number subclasses is so that man agement unfeasible, class decertify action is it can then this suit as a class Superior Court, (Vasquez action. 4 Cal.3d at p. Seven hundred thirty-three trials, number, or half that plaint. even separate overwhelm courts. The mere of a filing single and complaint answer, answers, in several hundred and place complaints represents substantial of time and saving effort. The court could determine the ques- tion of with the claims statute on the compliance basis of single claim in of numerous individual claims. place Extensive —and expensive on —expert testimony noise and vibration need patterns presented once, difficult issues of legal liability governmental need be immunity resolved but subclass, once. Within each could assess appraisers damages to related without need for properties individual trials.
I conclude that neither the stated grounds nor majority opinion, the diverse issues here present, maintenance this suit as a preclude class action. The substantial saving time judicial and litigation expense which would result from use of the class action format fully justify trial court’s exercise of its discretion.
Mosk, J. and J.* concurred. Taylor, of the real for a were denied October petitions parties rehearing Sullivan, J., 1974. Mosk, did J., J., not Tobriner, therein. participate were of the that the should be opinion petitions granted.
*Assigned by the Chairman of Judicial Council. notes tion, the opinion majority issues common class, significant little heed to more but pays proposed of class liti- class; the burden observes unite the and fact which of law suits; claims of individual burden the far greater but overlooks gation them but takes from damages, members to claim of class rights protect carefully that The trial judge of enforcing right. most effective means and concluded a class burdens of the benefits and proceeding, weighed a substantial would yield suit as a class action maintenance of this that lean on scales. and majority of time saving expense; a class action is whether appro- determination of question “[T]he are sufficiently the common will whether questions depend upon priate than in a multi- in a class action rather adjudication pervasive permit 800, 810 Superior suits.” Court (Vasquez plicity 513]; P.2d see Collins Rocha A.L.R.3d Cal.Rptr. Cal.3d P.2d In the instant case, the of an liability controversies underlying legal respecting airport for diminution of the market the defense of value adjoining property, and the matter of with the claims governmental immunity, compliance law member of the Com- issues of common to each class. statute present fact the schedule mon issues of include expansion airport operations, aircraft, and the of noise arriving intensity departing pattern and vibrations from emanating planes. in the relate to the diverse issues stressed majority opinion proof and arise because of the of land use within damages,1 variety Jose Since the noise flight San pattern Municipal impact Airport.