D'Amico v. Sitmar Cruises, Inc.

[325]

Opinion

ROTH, P. J.

appeal is from the trial court’s order dismissing all unnamed members of a purported class in the matter, the effect of which was to determine a class action was not appropriate therein. That order was the culmination to the point of its making on July 19, 1979, of a disagreeable experience allegedly suffered by appellant and some 900 other passengers during a 2-week cruise under the auspices of respondents from Los Angeles to Puerto Rico via the Panama Canal.

In appellant’s complaint it was maintained in causes of breach of contract, breach of warranty, strict liability and negligence that respondents had covenanted to provide a healthful and fit environment, lodging, food and beverages during the trip and that they had failed to do so in such fashion that appellant “and hundreds of the [other] passengers became ill.” Those who did not become ill, it was further asserted, were subjected to “an unenjoyable travel atmosphere, frustrating the travel purpose of all the passengers” in that they were deprived of “the pleasure of the company of other passengers and the enjoyment of the foods, beverages and other amenities and characteristics of a pleasure cruise.” The collective damages to all the passengers thus allegedly constituting the class represented by appellant was claimed to be approximately $900,000.

When the case had remained virtually dormant for 23 months, respondents moved to strike all class action allegations from the complaint and for an order declaring the class action was not proper. That motion, as indicated above, in essence was granted.

In its moving papers, respondents asserted, inter alia, that the class action requisite of community of interest, i.e., the existence and predominance of common questions of law and fact among the members of the purported class, was clearly lacking in that: (a) those who had not suffered physical illness and who would therefore essentially be claiming injury based upon a form of emotional distress, could establish liability on respondents’ part only through the individual testimony of each person so involved; and that (b) those who had become ill could likewise cast the responsibility therefor on respondents, at least by virtue of proving proximate cause, only in the same manner.