Plaintiff David Daar, suing "in behalf of himself and all other persons similarly situated," appeals from an order of the superior court sustaining defendant's demurrer to plaintiff's complaint without leave to amend and transferring the cause to the municipal court.
Plaintiff, in behalf of himself and all other persons similarly situated, commenced the instant action on November 20, 1964, to recover as damages overcharges allegedly made by defendant Yellow Cab Company
Count one alleges in substance that defendant is engaged in the business of providing taxicab transportation in the City of Los Angeles (hereinafter referred to as the city); that at all times mentioned, said defendant has been franchised in writing and by agreement with the Public Utilities Commission of said city to engage in such business and to charge rates in taxicabs only in those amounts fixed by the commission; that defendant used meters approved by the commission which automatically registered the rates and the cost of transportation of each particular trip; that the meters could be set to register rates of transportation set by the commission and "could be adjusted to any other unit of rate for purposes of registering the total cost of each trip"; that defendant, under the conditions of its franchise, could charge no rates other than those fixed by the commission; that defendant was authorized to and did sell coupon books, denominated "Yellow Cab Script" to be accepted by it in payment for transportation; that each of said script books bore a serial number and contained coupons of various denominations, each bearing the same serial number as that of the respective book.
It is further alleged in count one that plaintiff is a resident of the County of Los Angeles and "sues on behalf of himself and all others similarly situated"; that "all members of this class are purchasers and users of said script books" and have paid for taxicab transportation with coupons from the books; that plaintiff "and all those on whose behalf this action is maintained are purchasers and users of the said script books and the taxicab transportation furnished by the defendants to them within four years last past"; that the names and addresses of all purchasers and users of script books can be definitely ascertained from defendant's books and records; and that there are common interests of facts and law that unite
Count one further alleges that within four years immediately preceding the commencement of this action, defendant constructed, maintained and installed in its taxicabs meters which were to be used for the purposes of registering each trip cost at the approved rate established by the commission and as represented by defendant to plaintiff and the members of the above class; that defendant "did contract in writing with the plaintiff and the aforesaid class" to accept coupons in payment of taxicab service and "did contract in writing with the City of Los Angeles and the plaintiff and persons of the aforesaid class" that taxicab service would be furnished at rates established by the commission; that defendant did not adjust and maintain the meters to register rates and mileage approved by the commission and "did instead adjust and set the meters to register rates in excess of same, and did thereby charge to its customers, the plaintiff and aforesaid class of persons, an amount in excess of that which was lawful and in accordance with the agreements made between defendants and the Public Utilities Commission and between the defendants and plaintiff and the aforesaid class of persons."
It is further alleged in count one that "by reason of the foregoing," defendant overcharged plaintiff and members of the aforesaid class for taxicab services "within four years
Count two, after incorporating by reference those allegations of count one dealing with defendant's business, franchise, use of meters, adjustment of meters to register other than established rates and resulting overcharges, but omitting all references to script book coupons, alleges in substance that plaintiff is a resident of Los Angeles County and "sues on behalf of himself and all others similarly situated"; that plaintiff "and all others on whose behalf this action is maintained, are users of the taxicab services supplied by the defendants"; and that there are common interests of facts and law that unite all the members of the class in whose behalf the action is instituted.
Count two further alleges that defendant "did contract in writing with the City of Los Angeles and the plaintiff that the said public transportation taxicab service would be furnished at rates set forth and designated" by the commission; that "in fact higher rates were charged plaintiff and his said
Plaintiff prayed for damages and an accounting.
Defendant's demurrer asserts that each of the two counts fails to state a cause of action (§ 430, subd. 6), fails to state a cause of action in that each does not contain the elements of a proper class action (§ 430, subd. 6) and evidences a nonjoinder of parties plaintiff (§ 430, subd. 4), and that the complaint is uncertain in various particulars (§ 430, subd. 9). In a separate specification (par. VIII) the demurrer asserts: "This court has no jurisdiction over this matter concerning either the first or second cause of action." (§ 430, subd. 1.) Defendant also moved to strike particular portions of the complaint as being sham and redundant. The trial court sustained the demurrer on the basis of lack of jurisdiction (par. VIII thereof; see fn. 1, ante) without leave to amend, giving no reason for its action. Despite the court's specific reference to paragraph VIII of the demurrer, it is clear to us that its ruling embraces the ground that each of the two counts fails to state sufficient facts to establish the elements of a class action.
The issue confronting us on this appeal, therefore, is whether each of the two counts of the complaint states facts sufficient to constitute a proper class action under section 382.
We shall examine the complaint in order to determine first whether it sets forth facts sufficient to show the requisite ascertainable class. Applicable precedents indicate that in observing the ascertainable class requirement they are at the same time giving recognition to the principle that a group of individuals' rights to recover, each of which is based on a separate set of facts, cannot be determined by a judgment in a class action.
In order to illustrate this point we find it convenient to allude briefly to the last three cited cases preceding a more detailed discussion of them later.
We articulated the foregoing rationale in Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, 842-843, stating: "[T]hese unknown parties [who held identification stubs, but were refused tickets to the Rose Bowl game] are ascertainable only insofar as each may come forward and individually present proof of all of 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 judgment in any other." In Barber v. California Emp. Stab. Com., supra, 130 Cal.App.2d 7, 14, the court stated: "If the rights of each member of the class are dependent upon facts applicable only to him, there is not the requisite ascertainable class required for a representative suit." In Price v. Communications Workers of America, supra, 167 Cal.App.2d 524, 532 (overruled on other grounds in Chance v. Superior Court, supra), the court stated: "There is no community of interest regarding questions of law and fact between the named and the unnamed plaintiffs. In fact, there is no definite, ascertainable class. There is only a large number of individuals, each of whom may or may not have or care to assert a claim against the union. There could be an indefinite number of factual situations applicable to the about 300 of those claimed to be similarly situated whom the named plaintiffs seek to make parties to this action without their knowledge, consent, participation, and, so far as appears, regardless of their wishes. A decision favorable or adverse to the named plaintiffs or any of them could not determine the rights of any of the unnamed plaintiffs whom the named plaintiffs purport to represent. To permit this as a representative suit might deprive defendant of the right to assert any defenses it might have against individual, unnamed plaintiffs. A judgment that the named plaintiffs are or are not entitled to recover should not operate as res judicata against either the unnamed plaintiffs or against defendant union."
A finding of a community of interest at this time may provoke later questions as to the res judicata effect of any judgment herein.
We have said that it is not essential to the establishment of a class action that a common fund exist. (Chance v. Superior Court, supra, 58 Cal.2d 275, 288.) Under proper circumstances, the existence of a common fund is merely one way to satisfy the community of interest requirement. We have also said that it is not essential that the represented parties be so united in interest with the plaintiff as to make them necessary parties. (Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, 841.) Such an "interpretation would restrict ... [the statute's] application in cases where `many persons' or `numerous parties,' though not necessary litigants, nevertheless have a `common or general interest' in the subject-matter of the controversy as a premise for a class proceeding in the disposition of the merits of their collective claims." (32 Cal.2d at p. 841.)
Nor is a common recovery required in order to establish a community of interest. In Chance v. Superior Court, supra, 58 Cal.2d 275, 285, we observed: "It was indicated in Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, 838-840, 842-843, that for related causes of action to preclude representative litigation they must be separate and distinct in the sense that every member of the alleged class would have to litigate numerous and substantial questions determining his individual right to recover against the named defendant or defendants following the rendering of a `class judgment' which determined in plaintiffs' favor whatever questions were common among the plaintiffs sought to be represented as a class. (Accord: Barber v. California Emp. Stab. Com., 130 Cal.App.2d 7, 15 [278 P.2d 762]; see 6 Stan.L.Rev. 120, 128; cf. Noroian v. Bennett, 179 Cal. 806, 808-810 [179 P. 158].)" We continued there: "As stated by another authority, the community of interest requirement is lacking and separate and distinct claims present, in those situations
Under Federal Rules of Civil Procedure former rule 23(a)(3), which required that a "common relief" be sought,
As a practical matter, a requirement of common relief has no compelling importance and its absence presents no insuperable difficulties. A determination of the interest of each member of the class in any damages recovered does not seem to us dissimilar to a determination of each member's interest in a common trust fund, such determination sometimes being required after the common issues have been resolved in a class action. Only at such final stage do the individual interests become critical and does the community of interest requirement lose significance. "It is not unusual for class actions to involve such subsidiary questions wherein individual creditors or groups thereof contest issues among themselves after common questions as to basic liability have been settled. (See Chafee, Some Problems of Equity (1950) Representative Suits, pp. 209, 223; 71 Harv.L.Rev. 874, 938, fn. 465; 6 Stan. L.Rev. 120, 130.)" (Chance v. Superior Court, supra, 58 Cal.2d 275, 287; see Bowles v. Superior Court (1955) 44 Cal.2d 574, 587-588 [283 P.2d 704].)
In several cases, the facts have not supported the requisite community of interest to maintain a class suit. In Weaver v. Pasadena Tournament of Roses Assn., supra, 32 Cal.2d 833, plaintiffs sued on behalf of themselves and others, all of whom held identification stubs but were refused tickets to the Rose Bowl game as a result of alleged fraudulent and unauthorized disposition of admission tickets, each seeking to recover the one hundred dollar statutory penalty imposed for the wrongful refusal of admission (former Civ. Code, §§ 53, 54). We found no community among the class, stating: "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, entitling him `to recover ... his actual damages, and one hundred dollars in addition thereto.' (Civ. Code, 54; emphasis added.) Moreover, other independent factors of consideration arise in connection with the respective individual claims by reason of the provision that a `person under the influence of liquor, or who is guilty of boisterous conduct, or [who is] of lewd or immoral character, may be excluded from any such [public] place of amusement.' (Civ. Code, § 53.) ..." (32 Cal.2d at p. 838.) "While each would be `similarly situated' in that his cause of action arises under the same statute, his recovery would rest on a distinct premise correlative with varying proof as to the facts of his particular case. In such circumstances there is not the necessary `common or general interest' in the subject-matter of the litigation appropriate to the maintenance of a representative action as that type of proceeding has been analyzed in the adjudicated cases." (32 Cal.2d at p. 840; see also, Kennedy v. Domerque (1955) 137 Cal.App.2d Supp. 849, 850-851 [290 P.2d 85].)
In Barber v. California Emp. Stab. Com., supra, 130 Cal.App.2d 7, claimants, all members of the National Union of
In other cases, not totally dissimilar to the case at bench, the facts supported the requisite community of interest. In Chance v. Superior Court, supra, 58 Cal.2d 275, plaintiffs, each an owner of a note in default sold in separate transactions secured by a trust deed on a parcel of land all in the same tract, sued on behalf of themselves and all other owners of trust deeds on lots within the same tract, seeking judicial foreclosure on the trust deeds to the end that all of the secured parcels be sold as a unit. This court stated in finding the requisite community of interest present: "While the notes and trust deeds involved herein are separate; are secured by allegedly separate parcels of property, and were acquired through [the immediate seller] in apparently separate transactions, there are also present a number of questions common to all of these owners of notes secured by trust deeds upon parcels in the Newhall tract. All of the instant trust deeds and notes were created and transferred to Exchange in the same overall transaction, all of the notes and all of the trust deeds are identical as to conditions and provisions, differing only as to face amounts, and all of the allegedly separate `lots' are situated within the same tract of land and apparently
"Furthermore, it is apparent that there are important factual-legal issues which must be determined on behalf of this entire group of plaintiffs." (58 Cal.2d at pp. 285-286.)
In Fanucchi v. Coberly-West Co. (1957) 151 Cal.App.2d 72 [311 P.2d 33], 18 plaintiffs, cotton growers who had their cotton ginned by the defendants, sued on behalf of themselves and all other growers similarly situated, to recover for a portion of the cotton seed derived from the cotton delivered by the growers, which portion was retained by defendants and for which the growers had never been paid, because of an erroneous method of accounting for the seed. The cotton seed had been intermingled and the complaint prayed that the defendant be declared a constructive trustee for the excess and for distribution of such excess or the reasonable value thereof to the plaintiffs in accordance with their respective interests. In finding that there was a sufficient community of interest and that there was an ascertainable class, the court stated: "The basic facts necessary to establish liability on the part of the defendants were all exactly the same with respect to each grower, and would have to be established by each grower if he sued separately. Since the cotton seed was mingled, with no records kept as to the weights applicable to any particular grower, a recovery by any grower would have to be on a pro rata basis, the main foundation for which would also be applicable to each and every grower. While the recovery of each grower would have to correspond with the weight of the cotton delivered by him to the gin, that is a matter of record and the amount of each grower's recovery could easily be ascertained by mere mathematical computation. [Citation.] If, as the respondents suggest, the defendant might have a defense as to a particular grower, such as the fact that he actually knew of and consented to the method by which
Thus, we must examine the complaint before us in order to determine whether under the facts alleged each person's right to recover is based on questions of law and fact which are separate and distinct.
Count two of the complaint similarly contains the following factual allegations affecting the class of taxicab users therein described: Each member of the class used Yellow Cab transportation within four years immediately preceding the commencement of the action; each paid the fare in cash at the time of each trip; defendant contracted in writing with the City of Los Angeles that taxicab service would be furnished at rates established by the commission, but in fact higher rates were charged to all of the class members; all of the class members were overcharged for the taxicab services furnished to them; the percentage of rate of overcharge to each member of the class was identical and uniform at all relevant times; all sustained a loss by reason of the overcharges; the exact amount of the overcharge can be ascertained at trial; the nature and amount of the overcharge is within defendant's knowledge; and defendant has failed to account for the overcharges.
Since the demurrer admits the truth of the foregoing allegations, both the class in count one and the class in count two are entitled to recover the overcharges under a common set of facts. Proof of separate claims would not be required. (See Chance v. Superior Court, supra, 58 Cal.2d 275, 285-287; Fanucchi v. Coberly-West Co., supra, 151 Cal.App.2d 72, 80.) We conclude, therefore that the complaint states facts constituting a sufficient community of interest among the class members to support a class action under both counts.
Other factors impel us to the same conclusion. It may very well be assumed that the issues which are common among each group of class members would be the principal issues in any individual action, both in terms of the time to be expended in their proof and of their importance. (See Chance v. Superior Court, supra, 58 Cal.2d 275, 286; Hefferman v. Bennett & Armour, supra, 110 Cal.App.2d 564, 595.) If a class suit is not permitted here, a multiplicity of legal actions dealing
Moreover, absent a class suit, recovery by any of the individual taxicab users is unlikely. The complaint alleges that there is a relatively small loss to each individual class member. In such a case separate actions would be economically unfeasible. Joinder of plaintiffs would be virtually impossible in this case.
In an effort to undermine the sufficiency of the complaint, defendant argues that even if a class action were permitted, the appearance of each class member in court still would be required, "for each claimant must appear and testify to the facts, among many others, that he rode a taxicab within the statutory period, the number of such rides, the fare paid for each, and the special damages to him, if any, beyond those
The order made January 28, 1965, sustaining the demurrer to plaintiff's complaint and transferring the cause to the municipal court is reversed with directions to the superior court to overrule the demurrer as to all grounds therein specified except the ground of uncertainty, and to rule on the special demurrer for uncertainty. The attempted appeals from all other orders, rulings and judgments are, and each of them is, hereby dismissed. The appellant shall recover costs on appeal.
Traynor, C.J., McComb, J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
Paragraph VIII of the demurrer reads: "This court has no jurisdiction over this matter concerning either the first or second cause of action." In his notice of appeal plaintiff also appeals from all other orders entered in the case at any time and from "such judgment, orders and rulings ... pertaining to this case." The record discloses no formal judgment. Plaintiff now makes clear to us that he is appealing only from the above-quoted order of January 28, 1965. The attempted appeal from all other orders, rulings and judgments must therefore be dismissed.
Hereinafter, unless otherwise indicated, all section references are to the Code of Civil Procedure.
Section 89 provides in part: "1. Municipal courts shall have original jurisdiction of civil cases and proceedings as follows: (a) In all cases at law in which the demand, exclusive of interest, or the value of property in controversy, amounts to five thousand dollars ($5000) or less, ..."
"1. Each member of plaintiff's class has purchased the Yellow Cab script books, as hereinbefore set forth.
"2. Each member of plaintiff's class has paid an amount of money in cash for the said script books in advance, prior to the use thereof.
"3. Each member of the said class has used Yellow Cab transportation facilities within the period of four years last past prior to the filing of the within action and has used the Yellow Cab script coupons in payment of their fares for taxicab transportation furnished by the defendants to them.
"4. Each member of the class has sustained a loss by virtue of the facts hereinafter set forth.
"5. Each individual plaintiff member of the class is known to the defendants in that the defendants have maintained detailed records of the identity of the purchasers and users of each such cab script book.
"6. That the members of the class for whom this action is maintained exceeds [sic] several thousand persons and they are so numerous that it is impractical at this time to bring them all into this action individually as parties hereto.
"7. That proof of a common or single state of facts and law will establish the right of each member of the class of users of Yellow Cab script to recover damages.
"8. That the percentage of rate of overcharge to the plaintiff and each member of the class by the defendants was identical and uniform at all times herein mentioned."
"1. Each member of the said class has used Yellow Cab transportation facilities within the period of four years last past prior to the filing of the within action and has paid for same in cash at the time each taxi trip was made by them.
"2. Each member of the class has sustained a loss by virtue of the facts hereinafter set forth.
"3. That the members of the class for whom this action is maintained exceed several thousand in number and they are so numerous that it is impractical to bring them all individually before the court at this time as parties hereto.
"4. That proof of a common or single state of facts will establish the right of each member of the class of users of YELLOW CAB transportation to relief.
"5. That the percentage of rate of overcharge to the plaintiff and each member of the class by the defendants was identical and uniform at all times herein mentioned."
"(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought." (Italics added.)
"(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
"(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:...
"(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action."
However, in the present posture of this case, such an argument is prematurely raised and will not be considered here. It lies within the sound discretion of the trial court, within the dictates of the applicable law, to determine the manner in which any further proceedings will be conducted.