Greater Westchester Homeowners Assn., Inc. v. City of Los Angeles

• Decision Date: 16 December 1970
• Citation: 91 Cal.Rptr. 720,13 Cal.App.3d 523
• Court: California Court of Appeals Court of Appeals
• Parties: GREATER WESTCHESTER HOMEOWNERS ASSOCIATION, INC., etc., Plaintiff and Appellant, v. CITY OF LOS ANGELES, etc., Defendant and Respondent. Civ. 36109.

Page 720

91 Cal.Rptr. 720

13 Cal.App.3d 523

GREATER WESTCHESTER HOMEOWNERS ASSOCIATION, INC., etc., Plaintiff and Appellant, v. CITY OF LOS ANGELES, etc., Defendant and Respondent.

Civ. 36109.

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

Dec. 16, 1970.

Greenwald, Landrum & Baim, Lee W. Landrum and Jack A. Hendler, Los Angeles, for plaintiff and appellant.

Roger Arnebergh, City Atty., Milton N. Sherman, Asst. City Atty., and James H. Pearson, Deputy City Atty., for defendant and respondent.

DUNN, Associate Justice.

Appellant, Greater Westchester Homeowners Association, Inc., together with some 669 individually named persons, filed a first amended complaint to which respondent, City of Los Angeles demurred and filed a notice of motion to strike some paragraphs from the amended complaint. The demurrer and motion to strike were heard together, the court sustaining the demurrer and granting twenty days leave within which to amend; it additionally granted the motion to strike so far as appellant Association was concerned. The Association filed no amendment within the time allowed, ¹ and a judgment was filed dismissing Association from the action. It appeals from this judgment.

The suit purported to be a class action. The amended complaint's first paragraph alleged: 'Plaintiffs (property owners, residents and those similarly situated, herein called Homeowners) are the individuals named in the caption of this Complaint and those similarly situated.' The fourth paragraph alleged: 'Greater Westchester Homeowners Association, Inc. is a non-profit California corporation organized by persons owning property or residing in the Westchester area of Los Angeles for the purpose of their mutual protection against damage to their property, person, family and those residing with them, caused by the Los Angeles International Airport. Association therefore sues as a representative of its members.' Following these allegations no further mention is made of the Association. All the allegations are made by 'Homeowners.' For example, the complaint alleges 'Homeowners' filed claims with defendant City; 'Homeowners" properties were damaged by virtue of noise, vibration and fumes arising from use of the airport; and 'Homeowners' suffered personal injuries. In their prayer for relief, 'Homeowners' seek (1) compensation for the taking and damaging of their properties (inverse condemnation), (2) moneys for damage to each home (property damages) and (3) damages for personal injuries.

Inasmuch as no cause of action is stated on behalf of appellant the trial court properly sustained the demurrer and granted the motion and, upon appellant's failure to amend, properly dismissed appellant from the action.

Aside from the foregoing fatal omission, it is apparent appellant is not a proper party; it does not have the 'standing' to sue. Representative (class) actions are authorized under Code Civ.Proc. § 382 providing, in part: '* * * 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 existence of a community of interest between the members of the class, with regard to the questions of law and fact involved, is essential. Daar v. Yellow Cab Co., 67 Cal.2d 695, 704, 63 Cal.Rptr. 724, 433 P.2d 732 (1967); Bowles v. Superior Court, 44 Cal.2d 574, 587, 283 P.2d 704 (1955); Parker v. Bowron, 40 Cal.2d 344, 352, 254 P.2d 6 (1953); Weaver v. Pasadena Tournament of Roses Ass'n, 32 Cal.2d 833, 837, 198 P.2d 514 (1948); Collins v. Rocha, 11 Cal.App.3d 1012, 90 Cal.Rptr. 224 (1970).

The complaint sets forth no facts bringing appellant under this rule regarding representative actions. It is not alleged and there is nothing to indicate that appellant is a member of the interested class,...