Bauman v. Islay Investments

Opinion

FLEMING, Acting P. J.

Holly Bauman, on behalf of herself and all others similarly situated, appeals the judgment which dismissed her class action against Islay Investments, a partnership, for failure to establish the requisites for a class action.

Bauman’s action, filed November 1971, relied on Civil Code section 1950.5 (former § 1951), which limits the landlord’s claim against a tenant’s deposit to secure performance of a rental agreement to the amount reasonably necessary to remedy the tenant’s default and provides that bad faith retention of the unused portion of the deposit may subject the landlord to $200 damages in addition to actual damages. Bauman sought to represent past and present tenants of 22 apartment buildings owned by Islay in Santa Barbara and Ventura Counties, who, after 1 January 1971, the effective date of section 1950.5, entered written agreements with Islay Investments and paid “nonrefundable cleaning fee[s].” Bauman alleged that Islay refused to refund those portions of the cleaning fees not used to clean the apartments of tenants who terminated their tenancies, that such tenants were entitled to recover the unused portions of their cleaning fees, that present tenants are entitled to injunctive and declaratory relief establishing their future right to unused portions of their cleaning fees.

In

Bauman

v.

Islay Investments,

30 Cal.App.3d 752 [106 Cal.Rptr. 889], this court (Division Four) found section 1950.5 applicable to cleaning deposits and reversed a dismissal of the action on the pleadings.

[800]

On remand to the trial court, Islay put in issue the existence and composition of the asserted class and the presence of common questions of law and fact suitable for resolution by class action. The trial court ordered a hearing on the class issues, including the constitution, approximate numbers, and geographic location of the class; the existence of common questions of law and fact affecting class members; the superiority of a class action over other forms of relief available to class members; membership of plaintiff in the class; and plaintiff’s ability to properly represent the class. Under this order plaintiff was required to establish by competent evidence the existence of the asserted class and the suitability of the action as a class action. The trial court’s order for an early trial (hearing) on the class issues (see Code Civ. Proc., § 597) appropriately followed a procedure similar to that utilized under the Consumers Legal Remedies Act (Civ. Code, § 1781, subd. (c)) and the federal class action rules (Federal Rules of Civ. Proc., rule 23, subd. (c)(1);