Kass v. Young

• Decision Date: 14 February 1977
• Citation: 136 Cal.Rptr. 469,67 Cal.App.3d 100
• Court: California Court of Appeals Court of Appeals
• Parties: Richard KASS, Plaintiff and Appellant, v. Neil YOUNG, Defendant and Appellant. Civ. 38186.

Page 469

136 Cal.Rptr. 469

67 Cal.App.3d 100

Richard KASS, Plaintiff and Appellant, v. Neil YOUNG, Defendant and Appellant.

Civ. 38186.

Court of Appeal, First District, Division 3, California.

Feb. 14, 1977.

As Modified Feb. 18, 1977.

Milton Stern, Jr., San Francisco, for plaintiff and appellant.

Mitchell, Silberberg & Knupp, Daniel A. Weber, Russell J. Frackman, Los Angeles, Goldstein, Barceloux & Goldstein, San Francisco, for defendant and appellant.

DEVINE, ^* Associate Justice.

Plaintiff Kass appeals from an order vacating a default judgment in a class action and vacating the default of defendant Neil Young insofar as it relates to a class action, but allowing the default to remain against appellant Young to the extent that defendant as an individual is concerned (judgment to be subject to proof of damages as to plaintiff's individual rights). Appellant Young cross-appeals from the order allowing the limited default to remain. Both sides agree that the case appears to be one of first impression as to the effect of default in an alleged class action.

The complaint alleges that Kass was one of about 14,000 patrons at a 'rock' concert on March 31, 1973 at the Oakland Coliseum. Defendant Young was the star performer. ¹ He terminated the concert by abruptly walking off the stage. The purchasers of tickets 'did not receive the consideration of a full concert performance for which they had paid.' Damages are alleged to be about $98,000, including ticket prices, transportation and parking expenses. It is alleged that the entire class of patrons is affected exactly as is plaintiff.

Summons and complaint were served personally on Young on September 30, 1973. His default was entered on November 12, 1973.

At the hearing, Kass testified that about 14,000 were present; that Young walked out in the middle of a song; that everyone stood for a long time clapping and yelling, but Young did not return. Counsel for Kass presented three ticket stubs, one of which was Kass's; he proposed $91,000 as the amount of damages, calculated by multiplying 14,000 by the median price of $6.50 (tickets were $7.50, $6.50 and $5.50, but there was no evidence of the number sold of each category); he waived (for the whole class presumably) the parking fee item; by silence, he waived (for the class) punitive damages which had been prayed for, based on alleged malice. Read into the record were newspaper accounts which reported that the 'jarring' walkoff, a 'rip off,' a 'temper tantrum' occurred about an hour after the concert started, and reported that Young had said he couldn't go on because of repressive action of the security guards. Although at the hearing nothing was made definite about the subject of proof of membership in the class, there was a suggestion by counsel that refunds would be made to those who had retained ticket stubs.

The judge (not the judge from whose order the present appeals are taken) rendered judgment on June 26, 1974, awarding to plaintiff Kass, on behalf of himself and of all others who purchased tickets for the concert, the sum of $91,000; 40 per cent of the recovery was awarded to plaintiff's attorney; the whole amount collected was to be deposited in the attorney's trust account; payment was to be made to those who proved to the satisfaction of Counsel ² that they were members of the class (no method of determining the amount to be paid to each is stated; presumably each would be reimbursed his or her actual outlay); the balance unclaimed, after a reasonable time (which was not defined), would be disposed of by the court. There was no provision for notice even by publication.

On October 10, 1974, Young moved to vacate the default and the default judgment. One of the grounds was that the default and the judgment were jurisdictionally defective in that no notice had been given to the alleged class and that no class had been certified. On this ground the vacating order was made and the proposed answer of Young was permitted to be filed. (The answer alleges that Young had substantially completed his performance when he was forced to leave the stage by unnerving disturbance among the audience.)

I. Vacating of the Default Judgment

It was proper to set aside the default judgment because of a jurisdictional deficiency, namely, that there had been no certification of the asserted class and no provision for notice to the asserted class. A default judgment which is in excess of jurisdiction may be set aside at any time either by motion or an independent action in equity. (Sullivan v. Sullivan, 256 Cal.App.2d 301, 64 Cal.Rptr. 82.) Although, as was said at the outset, a case involving default judgment in a class action has not been found, it is to be inferred from the cases relating to the necessity for certification and for notice in class actions that the procedures which have been decreed to be mandatory establish these procedures as jurisdictional; wherefore, default judgment rendered without compliance with them is subject to vacation. In Home Savings and Loan Association v. Superior Court, 42 Cal.App.3d 1006, 117 Cal.Rptr. 485, a peremptory writ of prohibition was issued restraining the trial court from proceeding to trial on the substantive merits of the cause without prior adjudication of the suitability of the lawsuit as a class action, determination of the composition of the class, and appropriate notification to its members. Although the court in that case did not refer to the failure to meet the prescribed procedures as a jurisdictional defect in so many words, nevertheless the facts that it issued a writ which normally at least is employed only to restrain a lower tribunal from exceeding its jurisdiction (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 109 P.2d 942; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, § 39, p. 3813), and that the court in Home Savings and Loan Association based its decision in part on the constitutional requirement of due process of law (42 Cal.App.3d at pp. 1012, 1014, 117 Cal.Rptr. 485) give evidence that the court did not regard the trial court's failure as mere procedural error.

But if Home Savings and Loan Association be not authority for the proposition that the mandatory procedures are truly jurisdictional, we do not hesitate to declare them so. The strong language about the necessity of these procedures and the careful explanations of the reasons for that necessity appearing not only in Home Savings and Loan Association but also in the City of San Jose v. Superior Court, 12 Cal.3d 447, 115 Cal.Rptr. 797, 525 P.2d 701; Vasquez v. Superior Court, 4 Cal.3d 800, 820, 821, 94 Cal.Rptr. 796, 484 P.2d 964; Blue Chip Stamps v. Superior Court, 18 Cal.3d 381, 385, 386, 134 Cal.Rptr. 393, 556 P.2d 755, are persuasive of the jurisdictional nature of prejudgment adjudication of the suitability of the action as a class action, determination of the composition, and appropriate notification. The elaborate and scholarly reasoning exhibited in those decisions need not be repeated here, but a few words may be said about the application of the principles established by those authorities to the present case. First, as to the parties: without determination of the proper class and of appropriate notice, the defendant would be subject not only to judgment in the purported class action but also to suits by individuals acting alone or in other asserted classes. (Home Sav. & Loan Assn. v. Superior Court, supra, 42 Cal.App.3d at p. 1012, 117 Cal.Rptr. 485.) To be sure, defendant Young chose not to answer the complaint; but a party in default is not made subject to unlimited effects of his default. Relief may not be given beyond that prayed for (Code Civ.Proc., § 580); damages except when fixed by contract must be proved (Code Civ.Proc., § 585; Liberty Loan Corp. of North Park v. Petersen, 24 Cal.App.3d 915, 101 Cal.Rptr. 395); substantial amendment to the pleading after default is not permitted without second service of process (Leo v. Dunlap, 260 Cal.App.2d 24, 66 Cal.Rptr. 888). In a purported class action, the defaulting defendant should be entitled to have the court either on motion of plaintiff's counsel or on its own motion decide the appropriateness of the class action so that if it truly be suitable and if the necessary notice be given to potential plaintiffs, there will be but a single binding judgment against him. As to potential plaintiffs, the prejudgment procedures are so connected with due process as to be jurisdictional. These persons are entitled to the best practical notice under the circumstances, advising them that they may be excluded from the class if they so request and that they will be bound by the judgment, whether favorable or not, if they do not request exclusion. (Home Sav. & Loan Assn. v. Superior Court, supra, 42 Cal.App.3d at pp. 1012, 1013, 117 Cal.Rptr. 485; American Pipe & Construction Co. v. Utah, 414 U.S. 538, 545--549, 94 S.Ct. 756, 38 L.E.2d 713.)

Then there is a consideration of damages in this particular case relating to the potential plaintiffs which is rather unique. The representative plaintiff has simply assumed that all 14,000 patrons of the concert were equally damaged and that their damages amounted to the price of the average ticket. ³ It may be that many of the patrons or 'fans' of the performer who had entertained them for an hour did not regard themselves cheated or that some may have sympathized with his antagonism toward a number of the security guards. In the absence of notice, the single plaintiff has been able to enlist 14,000 persons, willing or not, and wherever they may be, to join his cause. In Weaver v. Pasadena Tournament of Roses, 32 Cal.2d 833, 835, 198 P.2d 514, 515, four appellants "on behalf of themselves and all others similarly situated" brought an action for damages, seeking $100 for each person (it was estimated there were 1,850) who had been promised that upon standing in line at the box...