Bozaich v. State of California

• Decision Date: 30 May 1973
• Docket Number: No. 1679,1679
• Citation: 32 Cal.App.3d 688,108 Cal.Rptr. 392
• Court: California Court of Appeals Court of Appeals
• Parties: Bozo BOZAICH and Matia Bozaich, Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent.

Page 392

108 Cal.Rptr. 392

32 Cal.App.3d 688

Bozo BOZAICH and Matia Bozaich, Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent.

No. 1679.

Court of Appeal, Fifth District, California.

May 30, 1973.

As Modified on Denial of Rehearing June 29, 1973.

Hearing Denied July 25, 1973.

[32 Cal.App.3d 691] Desmond, Miller & Desmond and Richard F. Desmond, Errol V. Miller, and Donald H. Wollett, Sacramento, for plaintiffs and appellants.

Evelle J. Younger, Atty. Gen., Lloyd Hinkleman, John M. Morrison, Deputy Attys. Gen., Sacramento, for defendant and respondent.

OPINION

GARGANO, Associate Justice.

Respondent in this appeal is the State of California. Appellants are forty individuals; they appeal from an order of the Superior Court of Sacramento County.

On December 11, 1970, appellants made an application with the State Board of Control pursuant to section 915 of the Government Code for leave to file a late claim. ¹ The proposed claim inter alia alleged that each claimant owned or rented property within the boundaries of the 'State Capitol Plan,' and that the State of California had acquired or was in the process of acquiring the property by settlement agreement under threat of eminent domain or by judgment in eminent domain. It alleged further, that the claimants had been or were being required to move without any payment or remuneration for moving or relocation expenses; it sought reimbursement for such expenses in an unspecified amount on behalf of the claimants and all other persons who owned property within the boundaries of the 'State Capitol Plan' and who were similarly situated.

The application was denied by the State Board of Control on January 20, 1971.

On April 1, 1971, appellants filed a motion in the Superior Court of Sacramento County, pursuant to section 946.6, asking to be relieved from the claim filing requirements of the Government Code on the ground that the delay in presenting the claim to the State Board of Control was caused by time consumed by appellants' counsel in researching the law and in investigating the validity of the claims.

On the same day appellants filed a class action against the State of California to recover the moving and relocation expenses; the complaint expanded the class to every person who owned or rented property in California and who was similarly situated and prayed for judgment in excess of $1,000,000.

On May 26, 1971, the court denied appellants' motion to be relieved from the claim filing requirements of the Government Code. Thereupon, the state moved to strike the complaint. It also filed a general demurrer alleging that the complaint did not state a cause of action and that the cause of action, if any, was barred by the provisions of Government Code sections 905.2 and 911.2.

On July 19, 1971, the court denied the state's motion to strike the complaint. The court also sustained the demurrer with leave to amend; the trial judge determined that as to Bozo Bozaich and Matia Bozaich, a claim was presented timely and apparently refused to strike the complaint for this reason.

On July 26, 1971, appellants filed a first amended complaint; the amended complaint contained several new allegations and, like the initial complaint, was filed on behalf of the original plaintiffs and every person in the State of California who was similarly affected.

On August 2, 1971, the state filed a notice of motion to strike from the first amended complaint all references to any plaintiff other than Bozo and Matia Bozaich. It also filed a general demurrer; the motion to strike was granted and the demurrer was overruled. It is from the order granting the motion to strike that appellants, including the Bozaiches, have appealed.

Appellants admit that in order to recover a money judgment against the State of California, in an action based on tort or contract, the plaintiff must allege and prove that he presented a claim to the State Board of Control within the time required by section 911.4. (Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647; Burgdorf v. Funder, 246 Cal.App.2d 443, 447, 54 Cal.Rptr. 805.) The main thrust of appellants' appeal is that their action is a class action and that the individual claim requirements of division 3.6 have no application to a class action. Appellants assert that a class action constitutes an exception to the doctrine of exhaustion of administrative remedies and that the 'filing of a claim by a representative plaintiff will carry into court a class of unnamed plaintiffs similarly situated.'

We are confronted with two preliminary and perplexing problems. The first is whether a class claim was ever presented timely to the State Board of Control as appellants assert. The record shows that appellants presented an application to file a late claim and that the application was rejected. The record shows further that appellants then moved the superior court to relieve them of the claim filing requirements of the Government Code and that this request was denied by the court. Finally, the record shows that appellants did not appeal from the court's order denying their motion and that this order, an appealable order, is now final. (Dockter v. City of Santa Ana, 261 Cal.App.2d 69, 67 Cal.Rptr. 686; 2 Witkin, Cal.Procedure (2d ed.) Actions, § 171, p. 1035.)

Appellants attempt to solve the problem with a bootstrap argument; they insist that the claim of Bozo and Matia Bozaich 'gathered' in all the other appellants and every person in the State of California who was similarly situated.

While the trial court may have ultimately ruled that as to Bozo and Matia Bozaich a claim was presented timely, the fact remains that the court's earlier order denying appellants' motion to be relieved from the claim filing requirements of the Government Code included the Bozaiches and, arguably, is a final order determining that no timely claim was ever presented by anyone. In addition, if appellants' solution to the problem were adopted, the time requirements for the presentation of claims to the state and other governmental entities would be meaningless as to claims of the kind involved in this case, and stale and outlawed causes of action could be revived, no matter when the causes of action arose.

Second, it seems clear to us that the lawsuit which appellants commenced in the court below is an action in inverse condemnation, not a class action for damages arising from tort as appellants seemingly assume; each of the forty named appellants is seeking to recover damages necessarily flowing from the taking of his property by the state for a public purpose. ² It is apparent, however, from the claim appellants attempted to file with the State Board of Control that their properties were taken (and presumably paid for) by the state pursuant to settlement agreements or judgments acquired in eminent domain proceedings. It is doubtful as to the forty named appellants, at least, that the complaint states a cause of action. 'A party cannot split a single and entire demand into separate causes of action,' particularly where, as here, the party who has split the cause of action has merely conjured up a new theory for recovery; otherwise, there would be no end to litigation. (1 Cal.Jur.3d, Actions, § 70, p. 528.)

We do not find it necessary to concern ourselves with these problems. We have concluded that appellants' lawsuit does not qualify as a class action and that the trial court's order should be affirmed for this if for no other reason.

The statutory authority for the filing of class actions is found in Code of Civil Procedure section 382. Under this section two requirements must be met: (1) there must be an ascertainable class, 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. These requirements were reviewed extensively by the California Supreme Court in three recent opinions, and there is nothing we can add to the scholarly discussions contained in those opinions. (Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732; Vasquez v. Superior Court, 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964, and Collins v. Rocha, 7 Cal.3d 232, 102 Cal.Rptr. 1, 497 P.2d 225.) It is sufficient to state that the perimeters of section 382 of the Code of Civil Procedure have been broadened widely and that in determining whether the requirements for a class action have been met, we are no longer fettered with rigid and unbending concepts. For example, it is not now essential to the establishment of a class action that a common fund exist,; '(n)or is a common recovery required in order to establish a community of interest.' (Daar v. Yellow Cab Co., Supra, 67 Cal.2d, p. 707, 63 Cal.Rptr. p. 733, 433 P.2d, p. 741.) Also, '(t)he mere fact that separate transactions are involved does not of itself preclude a finding of the requisite community of interest so long as every member of the alleged class would not be required to litigate numerous and substantial questions to determine his individual right to recover subsequent to the rendering of any class judgment which determined in plaintiffs' favor whatever questions were common to the class.' (Vasquez v. Superior Court, Supra, 4 Cal.3d, p. 809, 94 Cal.Rptr., p. 801, 484 P.2d, p. 969.)

However, the right to bring a class action is not without limitation. An ascertainable class is still a necessary ingredient and 'whether there is an ascertainable class depends in turn upon the community of interest among the class members in the questions of law and fact involved.' (Daar v. Yellow Cab Co., Supra, 67 Cal.2d at p. 706, 63 Cal.Rptr. at p. 732, 433 P.2d at p. 741.) Thus, if the rights of each member of the class are dependent upon the facts applicable only to him, there is not the requisite ascertainable class required for a representative suit. (Vasquez v. Superior Court, Supra, 4 Cal.3d at p. 809, 94 Cal.Rptr. 796, 484...