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Court of Appeal, Second District, Division 2, California.

Frank COLLINS, Frank Gonzales, Ward Daniels, John Drake, Joseph Lanier, Hardy Bell, Glover Gant, William Blackwell, Eugene Harris; and all others similarly situated, Plaintiffs and Appellants, v. Pete ROCHA, Defendant and Respondent.

Civ. 35817.

Decided: October 06, 1970

Ralph S. Abascal, Edgar A. Kerry and Peter Haberfeld, Marysville, for plaintiffs and appellants. Hutton, Foley & Anderson and Peter D. Anderson, King City, for defendant and respondent.

Appellants, the nine persons named in their complaint as plaintiffs, filed this action in the superior court as a class action on behalf of themselves and thirty-five other unnamed persons seeking recovery of damages for each of the forty-four members of the so-called class. The complaint purports to state four separate causes of action alleging fraud, breach of contract and violations of sections 201, 202, 970 and 972 of the Labor Code. The damages claimed totaled $3,707.90 for each of the members of the class for whom recovery was sought under the first three causes of action and $4,153.40 for each of those allegedly entitled to recover on all four causes of action.

Respondent filed a demurrer which stated several grounds as to each cause of action, including insufficiency of the alleged facts to state a cause of action or to constitute a proper class action and uncertainty in specified particulars.

The trial court sustained respondent's demurrer and ordered the action transferred to the Municipal Court, Los Angeles Judicial District. The order expressly recites the court's determination that the complaint failed to show the existence of any ascertainable class with the same community of interest and that the allegations of the complaint were uncertain in some of the particulars specified in the stated grounds of the demurrer. The appeal is from this order which, as appellants correctly point out, is an appealable order. (Daar dv. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732.)

Appellants do not challenge the correctness of the order insofar as it sustains the special demurrer but contend that the trial court erred in its determination that the requirements essential to sustain a class action were not met and in transferring the case to the Municipal Court. We have concluded that the trial court's fdetermination is in conformity with the law and that the order must be affirmed.

In Daar v. Yellow Cab Co., supra, 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732, the Supreme Court, after referring to section 382 of the Code of Civil Procedure, stated the applicable law as follows:

‘That section provides in relevant part: ‘* * * and 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, one or more may sue or defend for the benefit of all.’ The section is based upon the equitable doctrine of virtual representation which “rests upon considerations of necessity and paramount convenience, and was anopted to prevent a failure of justice.”' (Bernhard v. Wall (1921) 184 Cal. 612, 629, 194 P. 1040, quoting from 15 Ency. of Pl. & Pr. 629; see Weaver v. Pasadena Tournament of Roses Assn. (1948) 32 Cal.2d 833, 837, 198 P.2d 514; California Gas. Retailers v. Regal Petroleum Corp. (1958) 50 Cal.2d 844, 850, 330 P.2d 778; Chance v. Superior Court (1962) 58 Cal.2d 275, 291, 23 Cal.Rptr. 761, 373 P.2d 849; see also Chafee, Some Problems of Equity (1950), 200–205; 11 U.C.L.A.L.Rev. 308–309; 6 Stan.L.Rev. 120, 121–122.)

‘Although the statute appears to speak in the alternative, it uniformly has been held that wo requirements must be met in order to sustain any class action: (1) there must be an ascertainable class (Chance v. Superior Court, supra, 58 Cal.2d 275, 290, 23 Cal.Rptr. 761, 373 P.2d 849: Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, 842–843, 198 P.2d 514; Barber v. California Emp. Stab. Comm. (1954) 130 Cal.App.2d 7, 14, 278 P.2d 762); and (2) there must be a well defined community of interest in the questions of law and fact involved affecting the parties to be represented (Chance v. Superior Court, supra, 58 Cal.2d 275, 286, 23 Cal.Rptr. 761, 373 P.2d 849; California Gas. Retailers v. Regal Petroleum Corp., supra, 50 Cal.2d 844, 850, 330 P.2d 778; Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, 837, 841, 198 P.2d 514; Noroian v. Bennett (1919) 179 Cal. 806, 808–810, 179 P. 158; see also, Hansberry v. Lee (1940) 311 U.S. 32, 44–46, 61 S.Ct. 115, 85 L.Ed. 22 132 A.L.R. 741; Fallon v. Superior Court (1939) 33 Cal.App.2d 48, 50–51, 90 P.2d 858.) See generally, 1 Chadbourn, Grossman & (Van Alstyne, Cal. Pleading (1961) Class Actions, § 613 et seq.; 2 Witkin, Cal.Procedure (1954) Representative or Class Suits, § 99 et seq.)’ (67 Cal.2d pages 703–704, 63 Cal.Rptr. page 731, 433 P.2d page 739.)

It is immediately apparent from a reading of the complaint in the case at bench that the ‘considerations of necessity and paramount convenience’ (which, as stated in Daar, underlie the doctrine of virtual representation and section 382 of the Code of Civil Procedure) do not operate to qualify this as a class action. Debatable as the issue appears to be, it may be assumed for present purposes that the nine named plaintiffs and the thirty-five other unnamed persons might qualify as an ascertainable class. However, it affirmatively appears that there does not exist that ‘well defined community of interest in the questions of law and fact involved affecting the parties to be represented.’

The instant complaint alleges that the nine named plaintiffs are farm workers residing in Los Angeles County. It contains no allegations to indicate either the identity or the places of residence of the other thirty-five persons purportedly represented. It is alleged that the defendant is ‘a farm labor contractor whose principle [sic] place of business is in the County of Monterey, State of California.’

According to the complaint, the named plaintiffs ‘went to the Farm Labor Service office of the Department of Employment, State of California, * * * for the purpose of obtaining farm work. Plaintiffs were told by representatives of the Farm Labor Service that employment opportunities existed with defendant Pete Rocha.’ It is further alleged that an officer of the Farm Labor Service made certain representations to plaintiffs concerning the nature and terms of employment that would be made available to them by defendant in Monterey County. The complaint does not directly allege the authority of said officer to act as defendant's agent.

The complaint further alleges that certain of the representations thus made were false and that plaintiffs justifiably relied upon them and were thereby induced to travel to Monterey County to become employees of the defendant. It is alleged that some of the workers who were thus induced to travel to Monterey County were discharged without cause within three hours and that the remainder were discharged within three days. It is alleged that some of the workers were not paid for their services and that defendant was liable to them in varying amounts for unremunerated services.

Disregarding the fact that the complaint fails to allege that all members of the class of workers purportedly represented were present and heard the alleged false representations, it is self-evident that the issue of reliance would require proof of the subjective state of mind of each person claimed to have been damaged. As stated in Slakey Brothers Sacramento, Inc. v. Parker, 265 Cal.App.2d 204, 208, 71 Cal.Rptr. 269, 272, ‘Knowledge and reliance are subjective elements, requiring direct or circumstantial proof of state of mind.’

Even if it were assumed that the named plaintiffs could prove every other element of their alleged causes of action for fraud, breach of contract, and violations of the Labor Code on behalf of every worker purportedly represented, the amount of recoverable damages could be determined only by evidence sufficient to establish the varying amounts of the damage allegedly sustained by each of the forty-four persons for whom recovery is sought.

An essential element required to justify a class action, as stated in the words of the statute, is that ‘it is impractical to bring them all before the court.’ In the usual class action this requirement is satisfied because the class consists of a very large number of persons and because some of the members of the class have relatively small claims that would not justify individual actions. (Cf. Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 715, 63 Cal.Rptr. 724, 433 P.2d 732.) In the instant case, however, appellants seek to recover damages of more than $3,700 for each member of the class purportedly represented.

In Weaver v. Pasadena Tournament of Roses Assn., 32 Cal.2d 833, 198 P.2d 514, the four named plaintiffs sought to recover in a class action the statutory penalty provided for an unlawful refusal of admission to a football game alleging that defendant had failed to make available the promised number of tickets for public sale. The plaintiffs asserted that they were suing in behalf of themselves and others who had waited in line and failed to get tickets because of defendant's alleged misconduct. In Weaver, as in the case at bench, the trial court ruled that since the action did not qualify as a class action, the court was without jurisdiction and ordered the cause transferred to the appropriate lower tribunal.

The following from the decision of the Supreme Court affirming the order is equally applicable in the present case: ‘* * * The causes of action of the several plaintiffs and the other unnamed aggrieved individuals are separate and distinct. The question, as to each individual plaintiff, is whether he ‘as a person over the age of twenty-one years' presented himself and demanded admittance to the game, whether he tendered the price of the ticket, and whether, as to him, the refusal of admission was wrongful under section 53 of the Civil Code, entiting him ‘to recover * * * his actual damages, and one hundred dollars in addition thereto.’ (Civ. Code, § 54; emphasis added.) * * * ' (Page 838, 198 P.2d page 517.)

The following concluding paragraph of the decision in Weaver articulates additional considerations adverse to appellants' contention that the instant cause qualifies as a class action:

‘In concluding this discussion, there is one further point to be noted. In cases properly falling within the category of representative litigation, the judgment or decree would be res judicata for or against the class sought to be represented. (Freeman on Judgments (5th ed.), § 436, p. 952; Price v. Sixth District Agricultural Assn., 201 Cal. 502, 513, 258 P. 387.) But that result could not be extended to entirely separate causes of action, such as the four plaintiffs have pleaded here, so as to bind ‘several hundred individuals' who are not named, and who are, so far as the complaint shows, unknown and unascertainable. Rather, these unknown parties are ascertainable only insofar as each may come forward and individually present proof of all the facts necessary to authorize a recovery in accordance with the merits of his particular case, and judgment in one would by no means be a judgment in any other. Plaintiffs here do not claim to represent an association or protective committee, nor do they present any reasonable basis for ascertaining the members of the alleged class for whom they seek to act in this litigation. (Cf. Marolda v. LaPiner, 81 Cal.App.2d 742, 743, 185 P.2d 40.) In short, plaintiffs' complaint can be regarded as no more than an invitation to such persons as may be interested to join with them in this action in seeking relief ‘arising out of the same transaction or series of transactions' (Code Civ.Proc., § 378), but such situation furnishes no ground for the maintenance of a representative proceeding so as to confer jurisdiction on the superior court to hear and determine plaintiffs' cause.’ (Pages 842–843, 198 P.2d page 520.)

In Barber v. California Emp. Stab. Comm., 130 Cal.App.2d 7, 278 P.2d 762, it was held that an action by seamen to recover employment benefits did not qualify as a class action since it appeared that the status of each claimant purportedly represented by the plaintiffs and his right to recover necessarily depended upon facts applicable to him alone.

The order is affirmed.

HERNDON, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.

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