Diamond v. General Motors Corp.

• Decision Date: 30 September 1971
• Citation: 20 Cal.App.3d 374,97 Cal.Rptr. 639
• Court: California Court of Appeals Court of Appeals
• Parties: , 3 ERC 1227, 47 A.L.R.3d 759, 2 Envtl. L. Rep. 20,046 Roger J. DIAMOND, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents. Civ. 36600.

Page 639

97 Cal.Rptr. 639

20 Cal.App.3d 374, 3 ERC 1227, 47 A.L.R.3d 759,

2 Envtl. L. Rep. 20,046

Roger J. DIAMOND, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION et al., Defendants and Respondents.

Civ. 36600.

Court of Appeal, Second District, Division 4, California.

Sept. 30, 1971.

Rehearing Denied Oct. 19, 1971.

Hearing Denied Nov. 24, 1971.

Roger J. Diamond, in pro. per.

Gibson, Dunn & Crutcher, Sherman Welpton, Jr., Bruce A. Toor, Arthur L. Sherwood, McCutchen, Black, Verleger & Shea, G. William Shea, Philip K. Verleger, Franklin H. Wilson, Lawler, Felix & Hall, Reed A. Stout, Los Angeles, Roger Arnebergh, City Atty., James A. Doherty, Gilmore Tillman, Chief Asst. City Attys., Milton N. Sherman, Asst. City Atty., Arthur T. Devine and Brian Crahan, Deputy City Attys., for defendants and respondents.

FILES, Presiding Justice.

This is an action brought by plaintiff 'on behalf of himself and all other possessors of real property in, and residents of, the County of Los Angeles,' as a class numbering 7,119,184 persons. The named defendants are 293 industrial corporations and municipalities who are alleged to have polluted the atmosphere of the county. Additional defendants, whose names are unknown to plaintiff, are also sued under the fictitious name of 'Doe 1 through Doe 1,000.' The complaint seeks billions of dollars in compensatory and punitive damages, ¹ and 'an injunction permanently restraining defendants from emitting and discharging pollutants into the atmosphere of the County of Los Angeles.' As against those defendants which are engaged in the manufacture and distribution of automobiles, the complaint also seeks 'an injunction restraining the sale and registration in the County of Los Angeles of motor vehicles manufactured and produced by defendants which pollute the atmosphere' and 'the appointment of a special administrator to administer the retrofitting of each motor vehicle registered in the County of Los Angeles and produced and manufactured by the defendants,' the cost of such retrofitting to be assessed against the defendant manufacturers.

A number of defendants appeared and demurred to the first amended complaint. All demurrers were sustained without leave to amend upon the grounds of (1) misjoinder of parties plaintiff, and (2) failure to state facts sufficient to constitute a cause of action. In a memorandum the trial judge explained his opinion that (1) this is not a class action, (2) a private person may not maintain an action for the abatement of a public nuisance without pleading special injury to himself, (3) the court lacks facilities or competency to undertake the problem of abating air pollution within the Los Angeles Basin, and (4) the complaint fails to state a cause of action in favor of plaintiff as an individual. Several orders of dismissal were made, separately dismissing the action as to particular named defendants. Plaintiff filed notice of appeal with respect to the dismissal of 41 of the defendants only. Subsequently plaintiff abandoned his appeal as to some of them. ²

The amended complaint is drafted in 14 counts, setting forth conventional allegations for tort claims based upon theories of negligence, nuisance, trespass and products liability. Injury to the persons and property of the 7,119,184 residents is alleged to have resulted.

In substance, the automobile manufacturers are charged with negligently producing and distributing machines which are defective in that they emit harmful substances into the atmosphere; petroleum refiners are charged with manufacturing and distributing motor fuel which, in its intended use, pollutes the atmosphere; owners of industrial plants, steam generating plants, gasoline filling stations and airports are charged with unnecessarily discharging harmful substances and odors into the air. ³ The conduct of the defendants is characterized as wilful, malicious and oppressive.

The complaint is plainly an attempt to deal with the problem of air pollution in Los Angeles County as a whole, as between all of the individuals in the county constituting a class of plaintiffs, and the industries which plaintiff believes to be responsible for the problem, as defendants. The failure of plaintiff to perfect appeals as against a substantial number of the dismissed defendants somewhat reduces the size of the undertaking; but we review the superior court's judgment upon the record which was before that court.

As we shall explain, we believe the trial court properly concluded that the class action which plaintiff is attempting may not be maintained. This is a case where (1) there are significantly disparate interests within the alleged class; (2) the right of each member to recover (as well as the amount of his recovery) will depend upon substantial issues which must be litigated as between individual plaintiffs and defendants; and (3) the number of parties, the diversity of their interests, and the multiplicity of issues all in a single action would make the proceeding unmanageable.

The memorandum written by the trial judge states that the dismissal was without prejudice to the filing of an action by any member of the purported class for personal injury or property damage. Although that declaration was not carried forward into the judgments, it is a correct statement of the applicable law. (See Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 51, 92 P.2d 804; 4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, §§ 173, 174, p. 3315.) The dismissal was not on the merits. The court did not decide whether any resident of the county is entitled to any relief against any or all of the defendants. Thus the dismissal is not a bar either to individual actions, or to other class actions appropriately framed.

The Class Suit As an Action for Damages

The substance of the factual allegations of the damage claims (other than the defective products counts against the automobile and oil industries) is that the defendants are maintaining a continuing public nuisance. ⁴ Ordinarily the abatement of such a condition is the business of the sovereign, acting through its law officers. (See Civ.Code, §§ 3491, 3494; Calif. Oregon Power Co. v. Superior Court (1955) 45 Cal.2d 858, 871, 291 P.2d 455; People v. McCue (1907) 150 Cal. 195, 88 P. 899.) Civil Code section 3493 provides: 'A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.' Plaintiff here attempts to bring his complaint within that statute by alleging that each member of the class has suffered special injury in that each 'is prevented from enjoying his own unique property.' No particulars of these special injuries are set forth.

Plaintiff relies upon such cases as Fisher v. Zumwalt (1900) 128 Cal. 493, 61 P. 82 for the proposition that a single plaintiff who is specially damaged by a public nuisance may have relief in the form of damages and injunction; and plaintiff argues that he is simply combining here all of the special damage claims of the persons he proposes to represent. ⁵ This means that plaintiff is trying to allege, in a single cause of action, 7,119,184 claims for unliquidated damages arising out of 7,119,184 special injuries.

Requiring plaintiff to state separately the seven million causes of action, and to plead factually the damage as to each, would in and of itself constitute a practical bar to this action. If we were to ignore the pleading problem and allow plaintiff to come into court with a single general allegation, the trial court's problems would be only beginning. Whether an individual has been specially injured in his person will depend largely upon proof relating to him alone--going to such matters as his general health, his occupation, place of residence, and activities. ⁶ Whether a percel of real property has been damaged will depend upon its unique characteristics, such as its location, physical features and use.

The problem of trying a case of this kind is compounded by the joinder of a large number of defendants who are not alleged to have acted jointly. Nor has plaintiff alleged, or suggested that he could allege, any facts which would make one defendant vicariously liable for the acts of others. Thus the critical fact of injury would have to be litigated on distinct facts by each of the seven million residents against each of the defendants.

Plaintiff points out that under Code of Civil Procedure sections 379a, 379b and 379c, where he is in doubt as to which person is liable, he may join all so that the court may determine which is liable. Although the code authorizes the joinder, this does not eliminate the difficulty of determining, from the evidence, the facts upon which liability may be based with respect to each plaintiff and as against each defendant.

In addition to the counts of the complaint which allege nuisance, there are two counts which add allegations that the described conditions constitute trespasses; and there are four counts which seek damages from the automobile and oil industries upon theories of negligent manufacture and strict liability for defective design. Every one of these counts, whether stated in the language of trespass, negligence, or strict liability, presents the same basic problem of trial and proof. Each is an aggregation of tort claims for unliquidated damages; each requires a determination of the fact of injury (as well as the amount of damage) separately as to each resident as against each defendant.

This complaint lacks the characteristics which were found to justify a class action in Vasquez v. Superior Court (1971) 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964 and Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 63 Cal.Rptr. 724, 433 P.2d 732. In Daar and Vasquez the class was composed of consumers or customers who had dealt with the defendants in an identifiable series of similar transactions. Here we have an aggregation of individual tort...