Beckstead v. Superior Court

Opinion

STEPHENS, Acting P. J.

On January 4, 1971, petitioners filed a class action complaint in respondent Superior Court of Los Angeles County naming real parties in interest as defendants.

1

Demurrers to the original complaint were sustained without leave to amend, and a judgment dismissing the class action was entered. On June 18, 1971, petitioners (by petition for writ of mandate supported by points and authorities) asked this court to compel respondent court to set aside its judgment and to vacate its orders sustaining the demurrers without leave to amend. On July 27, 1971, we granted an alternative writ and set September 1, 1971, for the hearing to show causé why a writ of mandate should not issue. No appearance was made on behalf of respondent court, but briefs were filed on behalf of the real parties in interest.

It is a tenet of California civil procedure that the sustaining of demurrers without leave to amend is an extraordinary judicial procedure. Witkin (vol. 3, Cal. Procedure (2d ed. 1971) § 844) states: “Such a drastic step is unwarranted, and ordinarily constitutes an abuse of discretion if there is a reasonable possibility that the defect can be cured by amendment.” In particular, the California Supreme Court has expressed its disfavor with this practice as applied to class action suits.

(La Sala

v.

American Sav. & Loan Assn., 5

Cal.3d 864 [97 Cal.Rptr. 849, 489 P.2d 1113];

Vasquez

v.

Superior Court, 4

Cal.3d 800 [94 Cal.Rptr. 796, 484 P.2d 964];

Jones

v.

H. F. Ahmanson & Co.,

1 Cal.3d 93 [81 Cal.Rptr. 592, 460 P.2d 464];

Daar

v.

Yellow Cab Co., 67

Cal.2d 695 [63 Cal.Rptr. 724, 433 P.2d 732].) In

Vasquez,

the court said: “For the purpose óf determining if the demurrers should have been overruled, it is sufficient that there is a reasonable possibility plaintiffs can establish a prima facie community of interest among the class members .... Plaintiffs’ inability to do so, if that be the ultimate result, can be deter