WEAVER v. PASADENA TOURNAMENT OF ROSES ASS (1948)

Plaintiffs and appellants, four in number, brought an action in the Superior Court of Los Angeles County, ‘on behalf of themselves and all others similarly situated’, each seeking to recover $100 damages under section 53 of the Civil Code upon the ground that they were wrongfully refused admission to the Rose Bowl game at Pasadena on New Year's Day, 1947. The defendants Pasadena Tournament of Roses Association, Associated Students University of California at Los Angeles and William C. Ackerman, appeared by demurrer and motion to strike. At the hearing of the demurrers and motions, the court made the following order:

‘It appearing upon argument of demurrer that this is not and cannot be a representative action, that it involves a money demand for less than $1,000.00, to-wit, statutory penalties in the aggregate amount of $400.00, and that this court is without jurisdiction, this cause is transferred to the Justice's Court for Pasadena Township, and demurrers and motions are placed off calendar.’

Plaintiffs have appealed from the foregoing order.

Plaintiffs alleged that in November, 1946, University of California at Los Angeles was selected to represent the Pacific Coast Conference in the annual Rose Bowl football game on January 1, 1947; that defendants advertised by newspapers and radio a public sale of approximately 7,500 tickets of admission to the game; that on December 23, 1946, plaintiffs ‘and others' presented themselves at the box office of the Rose Bowl, and while waiting in line were issued (by whom it is not stated) numbered identification stubs assuring them their places in line and an opportunity to purchase two tickets; that approximately 3,350 of such stubs were issued, but that after only 1,500 tickets had been sold the box office was closed and it was announced that all available tickets had been sold. On New Year's Day plaintiffs ‘and others' who held stubs, but who had been denied tickets, presented themselves at the Rose Bowl, demanded admission and tendered the admission price, but were refused admittance. Plaintiffs charged that although defendants had ample accommodations, admission was denied to plaintiffs because there had been a ‘fraudulent and unauthorized’ disposition of approximately 6,000 of the 7,500 tickets advertised as available. Judgment was prayed on behalf of plaintiffs ‘and all others similarly situated’ for $100 each.

The sole question presented by the appeal from the order of transfer is whether this is a proper representative suit. If it is not, then the maximum recovery can be only that prayed for on behalf of the four plaintiffs, or $400 and the cause was properly transferred to the justice court.

Plaintiffs alleged that they brought the action ‘on behalf of themselves and all others similarly situated who may come in and seek relief and contribute to the expenses of this action’. They further alleged:

‘That the issues stated in this action and the questions herein to be litigated are of common and general interest to all other persons similarly situated and affect all the other persons in exactly the same manner as these plaintiffs are affected and that such other persons are so numerous, amounting to several hundred individuals, that it is impracticable to bring all of said persons before the court as individual plaintiffs and that, therefore, these plaintiffs sue for themselves and for the benefit of all the other persons similarly affected.’

Section 382 of the Code of Civil Procedure provides: ‘Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; * * * 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.’

‘Like most of the other exceptions to the general rule, the doctrine of virtual representation rests upon considerations of necessity and paramount convenience, and was adopted to prevent a failure of justice.’ Bernhard v. Wall, 184 Cal. 612, 629, 194 P. 1040, 1048; 20 Cal.Jur. 483.

Appellants' contentions are that all the individuals who waited in line but were denied tickets to the game have the same interest in the subject matter and the recovery; that the facts necessary to prove the cause of action of any one of them are the same as those necessary to prove the cause of action of any one or all the others; and that the number of interested individuals, ‘amounting to several hundred’, renders it impracticable to bring them all into court. ‘The trend of recent decisions' urge appellants, ‘seems to stress the question of whether there is a unity of interest, or in the alternative, whether it is impracticable to bring into one case numerous plaintiffs.’ Citing Goes v. Perry, 18 Cal.2d 373, 115 P.2d 441; Moore v. Bowes, 8 Cal.2d 162, 64 P.2d 423.

The present case, it seems to us, cannot properly be a representative suit, but falls within the category of such cases as Carey v. Brown, 58 Cal. 180, and Watson v. Santa Carmelita Co., 58 Cal.App.2d 709, 137 P.2d 757, 762. In the lastcited case, injunctive relief was sought against the collection of assessments by a mutual water company, based on alleged fraudulent representations made separately to plaintiffs and 1,500 other investors. In holding that a representative suit was not proper, the court said: ‘There is no allegation of a common ground on which plaintiffs and their unnamed group may stand. There is no fund in which plaintiffs and the unnamed persons have a common interest; no property is mentioned in which the unnamed have an interest in common with plaintiffs; nothing to show that the 1500 are necessary parties to the action. [A representative suit is warranted] only in those cases where the represented group is so united in interest with the actual plaintiff in the action as to make them necessary parties under the statute. Section 382, Code Cov.Proc. A representative suit is proper only where the action is for the purpose of conserving a common fund of property in which all of those represented have an interest. It may not be used to reinforce the claim of one who merely seeks relief against promoters who alleged to have deceived plaintiff and his fellow stockholders in the sales of corporate shares. By no principle of legalistic logic does it appear that the unnamed 1500 are necessary to the prosecution by plaintiffs of their action. Plaintiffs allege that they were defrauded by deceitful representations made to them by defendants. Such representations do not necessarily affect the rights of their unnamed companions. Plaintiffs may proceed without let or hindrance against the defendants upon whatsoever grievances they deem themselves to have suffered. In the event of their recovery, the judgment would not transfer any advantages to those unnamed. If they lose in the contest, the 1500 uncomplaining shareholders are still possessed of any claims they may have had against defendants. Plaintiff's causes of action, if any, against defendants are several and distinct from the rights of the 1500. There is no privity of estate between plaintiffs and the unnamed group. * * *’

So in the present case, the causes of action of the several plaintiffs and the other unnamed aggrieved individuals are several. The question, as to each individual plaintiff, is whether he presented himself and demanded admission, whether he tendered the price of admission, and whether, as to him, the denial of admission was wrongful under section 53 of the Civil Code. A decision favorable or adverse to these plaintiffs or any one of them, could not determine the rights of any of the unnamed parties whom plaintiffs claim to represent. True, the plaintiffs, and perhaps others who stood in line and were denied tickets, have an interest in a common question of law, to-wit, whether a recovery under section 53 of the Civil Code is authorized when an operator of a place of public amusement advertises 7,500 tickets for sale to the general public and subsequently announces that only 1,500 of such tickets are available. But the determination of this question in the instant case would still leave to be litigated the right of any other person to recover, that is, whether such person, in reliance upon the advertised sale, stood in line, received a stub, was denied tickets before the advertised 7,500 had been sold, presented himself at the Bowl, demanded admission, tendered the price, and was refused.

In general, a representative suit is proper because it is in behalf of a common interest of an ascertained class in the subject matter of the litigation. Moore v. Bowes, 8 Cal.2d 163, 64 P.2d 423; Goes v. Perry, 18 Cal.2d 373, 115 P.2d 441; Baumann v. Harrison, 46 Cal.App.2d 84, 115 P.2d 530; Farmers' & Merchants' National Bank v. Peterson, 5 Cal.2d 601, 55 P.2d 867; Person v. Donelley, 33 Cal.App.2d 133, 91 P.2d 123; Mitchell v. Pacific Greyhound Lines, 33 Cal.App.2d 53, 91 P.2d 176. In the present case there is no ascertained class, such as the stockholders, bondholders, or creditors of an organization. There is only a large number of individuals, each of whom may or may not have, or care to assert, a claim against the operators of the 1947 Rose Bowl Game for wrongful denial of admission to such game. Each of such claimants must prove, separately, that he was denied admission, and that such denial was wrongful under section 53 of the Civil Code.

The situation here presented parallels that in Ballin v. L. A. County Fair, 43 Cal.App.Supp.2d 884, 111 P.2d 753, 755, in which the plaintiff, a patron of a licensed race-track, sought to recover a nominal amount on the ground that the operators of the track had erroneous computed the ‘breakage’ under the pari-mutual system of wagering. The Appellate Department of the Superior Court there said: ‘In addition to stating his cause of action as above set forth, plaintiff claims by his complaint to represent and sue for numerous other persons who have made wagers at defendant's track and against whom defendant has made the same error in figuring ‘breakage’, and he demands in their behalf an accounting of all these transactions and seeks to recover for them sums aggregating more than $200,000. We have carefully considered these allegations and find them entirely insufficient to show a case in which the law would authorize the bringing of such a representative suit by plaintiff or entitle him to an accounting. * * * Our conclusions that he cannot maintain this as a representative action is based on the principles declared in Carey v. Brown, 1881, 58 Cal. 180, 183, 184, construing section 382 of the Code of Civil Procedure, and in cases construing like statutes of other states * * *. (Citing cases.)'

We are confronted with a situation in which four aggrieved parties, each seeking to recover upon his own individual cause of action, purport to represent several hundred individuals, who are not named, who may or may not care to press their claims, if any, and who are, so far as the complaint shows, unknown and unascertainable. These unknown parties are ascertainable only so far as each may come forward and individually present proof of all the facts necessary to authorize a recovery. A judgment in a proper class suit is binding on those ‘who accept the representation, and who connect themselves with the litigation, either by coming into the suit or seeking to share in the fruits of the judgment, or by acquiescing in it.’ In other words, in a truly representative action, the judgment would be res judicata for or against the class sought to be represented. Haese v. Heitzeg, 159 Cal. 569, 573, 574, 114 P. 816, 817. In an ordinary class suit the members of the class are reasonably ascertainable, such as shareholders, creditors, beneficiaries and the like. In the present cause the members of the class are, so far as the complaint shows, entirely unknown. The plaintiffs do not claim to represent an association or protective committee, but have by their complaint merely issued invitations to such persons as may be interested to join with them in the action.

The order appealed from is affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.