Wechsler v. Laskey-Weil, Inc.

Opinion

STEPHENS, J.

This appeal is from an order sustaining a demurrer to a first amended complaint on the sole ground that “no claim properly cognizable as a class action is stated.” In all other respects, the demurrer was overruled.

The case of

Daar

v.

Yellow Cab Co.,

67 Cal.2d 695, 699 [63 Cal.Rptr. 724, 433 P.2d 732] determined that where the legal insufficiency of the complaint as a class action is sought to be determined by an order sustaining the demurrer, the order is tantamount to a dismissal of the class action and is an appealable order.

The first amended complaint purports to state a cause of action on behalf of a class composed of former tenants of apartment houses owned and operated by defendants. It is alleged that at the termination of their leases the members of the class did not receive any interest on the key and security deposits which they were required to leave with defendants

[730]

pursuant to their leases.

1

The propriety of the action as a class action was not raised by demurrer. However, the court sustained the demurrer on this basis. Appellant contends that the propriety of the action as a class action is not a legitimate ground for demurrer. In support of his position, appellant relies on

Jensen

v.

Allstate Ins. Co.,

32 Cal.App.3d 789, 793 [108 Cal.Rptr. 498], The

Jensen

court stated: “As grounds for its demurrer, defendant urged in the trial court, and urges here, sundry matters going to the propriety of the action as a class suit. In light of

Vasquez