Opinion
Complaint seeking recovery for a class and for the individual plaintiff was filed December 19, 1969. It alleged that Bank of Americа, as lender, had insured with Prudential Insurance Company the lives of its borrowers to assure payment of the loans. It asserted thаt borrowers had been charged premiums in excess of what was necessary to secure payment of their obligatiоns to the bank, and that the bank had received dividends or premium refunds which were not credited to the borrowers. The two defеndants answered, each asserting that the action could not properly be maintained as a class action. Nonetheless, plaintiff failed to seek judicial determination of the propriety of the class aspect of the аction, what form of notice to members of the class was required, or the adequacy of his representation of the class. On October 17, 1974, defendant bank moved for determination of the class, if any, and for fixing of notice to be given. Defendаnt insurer joined the motion the next day. On November 1, defendants moved for dismissal of the class action aspect of the аction. On November 6, 1974, plaintiff for the first time indicated a desire to have those issues determined. He filed a document in which he “joined” the defendants’ “motion to determine the class” but asserted that “said determination should be made . . . upon the trial *32 оf the action.” Plaintiff requested a delay, and the hearing was held November 13. On November 15, the trial court found that there had bеen no determination as to the class aspect of the case; no notice to members of the class agrеed upon, determined or given; and no determination made as to whether plaintiff is an adequate representativе of the class. The order noted that trial had been set for December 16, that the action had been pending for more than 4 years and 10 months, and that “no meaningful or effective notice to the members of the class prior to trial can be given.” It therefore dismissed the action as it related to a class. On November 22, it granted motions for summary judgment as to the individual action. Plaintiff appeals.
Determination of propriety of a class action should follow the guidelines of subdivision (с) of section 1781 of the Civil Code and rule 23 of the Federal Rules of Civil Procedure. (Vasquez v.
Superior Court, 4
Cal.3d 800, 820-821 [
“Prompt and early determination of the class is essential” in order to permit class members to elect whether to proceed as members of the class, to intervene with their own counsel, or to be еxcluded from the class action. (Home
Sav. & Loan Assn.
v.
Superior Court,
Neither rule 23 nor the code provision, however, states who has the burden of securing hearing and ruling upon the membership of the class and the notice to be given. The federal cases under rule 23, although largely dicta, are split upon this question. Four seem to favor dismissal when the issue is not timely determined (Carracter v.
Morgan
(4th Cir. 1973)
*33 A plaintiff clearly hаs the burden of bringing a case to trial within five years after filing of the complaint, since dismissal of the action is mandatory upоn expiration of the five-year period. (Code Civ. Proc., § 583, subd. (b).) There is no suggestion here of a stipulation for extension of the period, or of impossibility of bringing the case to trial in time. The burden of securing determination of the class and of the nоtice to be given obviously is not shared equally by the class, the defendants, and the trial court, as plaintiff-appellant аrgues.
It is quite true that the full five-year period had not finally expired on November 15, the date of the order appeаled from. But it is undisputed that the 34 days remaining of that period was grossly inadequate for the giving of notice to the large and geographically scattered class for which plaintiff purports to act and to allow even a minimally reasonablе period for exercise by the class members of their options.
1
To go through the mere formality of fixing notice at that lаte date would have been a useless act, since dismissal, 34 days later and before completion of any reasonable notice period, would have been mandatory. Hence we conclude that dismissal of the class aspеct of the action was proper. Appellant’s argument that fixing of the class and prescribing of notice should havе followed trial of the action has been flatly rejected.
(Home Sav. & Loan Assn.
v.
Superior Court, supra,
The November 22, 1974, grant of summary judgment on plaintiff’s individual cause оf action was correct. Plaintiff’s claim asserted that excessive premiums had been charged and that dividends thereon paid to the bank had not been credited to plaintiff. The claim is in contract and thus, the right of action, upon filing of plаintiff’s petition in bankruptcy was transferred to the trustee in bankruptcy (11 U.S.C.A. § 110 (a), (5) and (6);
Reichert
v.
General Ins. Co.,
Judgment affirmed.
Brown (H. C), J., and Good, J., * concurred.
Notes
Even published notice would require 28 days (Gov. Code, § 6064) and publication in accordаnce with that section is required by the guideline statute (Civ. Code, § 1781). Under optimum conditions, the earliest possible publication in each of the counties required would leave at most live days for election by the numerous class members and for commencement of trial.
A recent decision
(Cartt
v.
Superior Court,
Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.