Hogya v. Superior Court

• Decision Date: 16 November 1977
• Citation: 75 Cal.App.3d 122,142 Cal.Rptr. 325
• Court: California Court of Appeals
• Parties: Frank HOGYA, etc., Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; NATIONAL MEAT PACKERS, INC., et al., Real Parties in Interest. Civ. 16727.

Page 325

142 Cal.Rptr. 325

75 Cal.App.3d 122

Frank HOGYA, etc., Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent NATIONAL MEAT PACKERS, INC., et al., Real Parties in Interest.

Civ. 16727.

Court of Appeal, Fourth District, Division 1, California.

Nov. 16, 1977.

Rehearing Denied Dec. 2, 1977.

Hearing Denied Feb. 10, 1978.

William J. Bauer and George J. Schultz, Bonita, for petitioner.

Seltzer, Caplan, Wilkins & McMahon, by Gerald L. McMahon and Howard J. Barnhorst, II, San Diego, for real parties in interest.

Evelle J. Younger, Atty. Gen., Herschel T. Elkins, and Albert Norman Shelden, Deputy Attys. Gen., for amici curiae.

GERALD BROWN, Presiding Justice.

Petitioner seeks a writ of mandate to compel respondent court to vacate its order dismissing his suit as a class action and to grant his motion for class certification.

According to the complaint in the underlying action, National Meat Packers, Inc., and other real parties in interest and their agents, sold falsely upgraded beef to Navy commissaries in San Diego County. The beef was represented as being of "choice" quality when in fact it was only of "good" quality.

Frank Hogya, petitioner, is one member of the group of approximately 350,000 consumers who purchased falsely upgraded beef from the commissaries. Seeking compensatory and punitive damages and injunctive relief on behalf of himself and other consumers similarly situated, he brought a class action against the real parties in interest pursuant to the Consumers Legal Remedies Act (Civ. Code § 1750, et seq.).

Civil Code section 1780, ¹ subdivision (a), provides:

"(a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770, may bring an action against such person to recover or obtain any of the following:

(1) Actual damages, but in no case shall the total award of damages in a class action be less than three hundred dollars ($300).

(2) An order enjoining such methods, acts, or practices.

(3) Punitive damages.

(4) Any other relief which the court deems proper."

Section 1770 declares in pertinent part:

"The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful:

". . .llo

(g) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another."

These sections clearly authorize Hogya to bring a consumer action against the real parties in interest.

Section 1781 establishes the circumstances under which a court may allow a consumer suit to proceed as a class action and the procedure to be followed (Vasquez v. Superior Court, 4 Cal.3d 800, 817, 94 Cal.Rptr. 796, 484 P.2d 164). It provides in part:

"(a) Any consumer entitled to bring an action under Section 1780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages or obtain other relief as provided for in Section 1780.

"(b) The court shall permit the suit to be maintained on behalf of all members of the represented class if all of the following conditions exist:

(1) It is impracticable to bring all members of the class before the court.

(2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members.

(3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class.

(4) The representative plaintiffs will fairly and adequately protect the interests of the class.

"(c) If notice of the time and place of the hearing is served upon the other parties at least 10 days prior thereto, the court shall hold a hearing, upon motion of any party to the action which is supported by affidavit of any person or persons having knowledge of the facts, to determine if any of the following apply to the action:

(1) A class action pursuant to subdivision (b) is proper.

(2) Published notice pursuant to subdivision (d) is necessary to adjudicate the claims of the class.

(3) The action is without merit or there is no defense to the action.

"A motion based upon Section 437c of the Code of Civil Procedure shall not be granted in any action commenced as a class action pursuant to subdivision (a)."

In the matter before us, the court held several hearings, in accordance with subdivision (c) of section 1781, to determine if a class action was proper. On December 14, 1976, at the conclusion of its third hearing, the court ruled, among other things, that petitioner's motion to certify the class action would be granted. Then, on its own motion the court reopened the hearing to reconsider its ruling in light of Blue Chip Stamps v. Superior Court, 18 Cal.3d 381, 134 Cal.Rptr. 393, 556 P.2d 755.

After further briefing and oral argument the trial court reversed its previous ruling and denied petitioner's motion for class certification. The court issued findings of fact and conclusions of law in conjunction with its determination. The first four conclusions of law closely track the requirements of section 1781, subdivision (b). ² In addition, the court concluded denial of class relief would result in advantage to the real parties in interest, forms of recovery were available which would accomplish justice, deterrence of the practices complained of was desirable and could be accomplished by the award of actual and punitive damages, and notice by publication (Civ. Code § 1781, subds. (d) and (c)) would suffice.

Nevertheless, the court refused to certify the class, apparently for reasons expressed in its fifth conclusion of law:

"Substantial benefits will not accrue to the litigants, the class, the public and the courts by permitting this action to be maintained as a class action. It is not probable that a high percentage of members of the class will come forward ultimately and prove separate claims to a portion of the total recovery; any potential recovery to the individual purchasers of meat would be small and would not justify the time and expense needed to accomplish same."

Hogya petitioned this court for a writ of mandate to compel respondent court to certify the class. The Attorney General filed an amicus curiae brief on his behalf, and we issued an order to show cause.

The principal question is whether section 1781, subdivision (b), establishes exclusive criteria for class certification in suits brought pursuant to the Consumers Legal Remedies Act. Before turning to the main question, however, we explain our willingness to employ a prerogative writ to review the order before us.

Petitioner asserts Blue Chip Stamps v. Superior Court, supra, 18 Cal.3d 381, 134 Cal.Rptr. 393, 556 P.2d 755, holds mandamus is appropriate to review an interlocutory order concerning class certification. Real parties in interest, relying on the same case, contend writs should be employed only to review orders certifying actions as proper class actions, and not orders denying such certification.

"Generally, a writ (of mandate) will lie when there is no plain, speedy, and adequate alternative remedy; the respondent has a duty to perform; and the petitioner has a clear and beneficial right to performance. (Citations.)" (Payne v. Superior Court, 17 Cal.3d 908, 925, 132 Cal.Rptr. 405, 417, 553 P.2d 565, 577.)

It is the petitioner's burden to establish the inadequacy of other relief. (Phelan v. Superior Court, 35 Cal.2d 363, 366, 217 P.2d 951; Running Fence Corp. v. Superior Court, 51 Cal.App.3d 400, 408-409, 124 Cal.Rptr. 339; Pettis v. Municipal Court, 12 Cal.App.3d 1029, 1032, 91 Cal.Rptr. 263.)

Where there is a right to an immediate review by appeal, that remedy is considered adequate unless petitioner can show some special reason why it is rendered inadequate by the particular circumstances of his case (In re Marriage of Skelley, 18 Cal.3d 365, 369, 134 Cal.Rptr. 197, 556 P.2d 297; Phelan v. Superior Court, supra, 35 Cal.2d 363, 370, 217 P.2d 951; Lohr v. Superior Court, 111 Cal.App.2d 231, 234-235, 244 P.2d 5).

Where an order is not appealable, but is reviewable only upon appeal from a later judgment, various factors must be considered in evaluating the adequacy of the appellate remedy (Phelan v. Superior Court, supra, 35 Cal.2d 363, 370, 217 P.2d 951). Such factors include, without being limited to, the expense of proceeding with trial (id.), prejudice resulting from delay (id.), inordinate pretrial expenses (see San Diego Unified Port Dist. v. Superior Court, 67 Cal.App.3d 361, 364-365, 136 Cal.Rptr. 557), the possibility the asserted error might not infect the trial (see People v. Medina, 6 Cal.3d 484, 491, 99 Cal.Rptr. 630, 492 P.2d 686), and the possibility the asserted error might be corrected in a lower tribunal before or during trial (Rescue Army v. Municipal Court, 28 Cal.2d 460, 466, 171 P.2d 8). A remedy is not inadequate merely because more time would be consumed by pursuing it through the ordinary course of law than would be required in the use of an extraordinary writ. (Rescue Army v. Municipal Court, supra, 28 Cal.2d 460, 466, 171 P.2d 8; Mitchell v. Superior Court, 98 Cal.App.2d 304, 219 P.2d 861.)

In the case of most interim orders, "the parties must be relegated to a review of the order on appeal from the final judgment." (Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 723, 465 P.2d 854, 859, quoting Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 185-186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439; Rescue Army v. Municipal Court, supra, 28 Cal.2d 460, 466, 171 P.2d 8; see Babb v. Superior Court, 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; Blue Chip Stamps v. Superior Court, supra, 18...