City of San Jose v. Superior Court

TOBRINER, J.

I dissent.

The issue before us is whether the trial court abused its discretion in certifying this case as a class action. The majority, however, give no deference to that court’s exercise of its discretion. In a one-sided presentation, the majority opinion notes the individual issues which divide the proposed class, but pays little heed to the more significant common issues of law and fact which unite the class; observes the burden of class litigation but overlooks the far greater burden of individual suits; claims to protect the rights of class members to claim damages, but takes from them the most effective means of enforcing that right. The trial judge carefully weighed the benefits and burdens of a class proceeding, and concluded that maintenance of this suit as a class action would yield a substantial saving of time and expense; the majority lean on the scales.

“[T]he determination of the question whether a class action is appropriate will depend upon whether the common questions are sufficiently pervasive to permit adjudication in a class action rather than in a multiplicity of suits.” (Vasquez v. Superior Court (1971) 4 Cal.3d 800, 810 [ 94 Cal.Rptr. 796 , 484 P.2d 964 , 53 A.L.R.3d 513 ]; see Collins v. Rocha (1972) 7 Cal.3d 232, 238 [ 102 Cal.Rptr. 1 , 497 P.2d 225 ].) In the instant case, the underlying legal controversies respecting the liability of an airport for diminution of the market value of adjoining property, the defense of governmental immunity, and the matter of compliance with the claims *466 statute present issues of law common to each member of the class. Common issues of fact include the expansion of airport operations, the schedule of arriving and departing aircraft, and the pattern and intensity of noise and vibrations emanating from the planes.

The diverse issues stressed in the majority opinion relate to the proof of damages, 1 and arise only because of the variety of land use within the flight pattern of the San Jose Municipal Airport. Since the impact of noise and vibration upon property values may depend upon the use and location of the property, the determination of damage to a single family residence may have little in common with proof of damage to a parking lot two miles away. Yet within a subclass of single family homes, common issues may predominate over diverse issues; an appraiser, for example, might find it possible to use the same tools of analysis and record of comparable sales to appraise the market value of all residences in a neighborhood. Thus the presence of the diverse issues cited in the majority opinion need not operate to deprive the parties and the courts of the benefits of class litigation.

As we suggested in Vasquez v. Superior Court, supra, 4 Cal.3d at page 821, and as plaintiffs have proposed here, the class could be divided into subclasses for purpose of trial. Perhaps the trial court could devise a procedure under which a joint trial on the common issues of law and fact would be followed by individual or subclass hearings on diverse issues. In Vasquez we enjoined the trial courts to “adopt innovative procedures which will be fair to the litigants and expedient in serving the judicial process” ( 4 Cal.3d at p. 821 ); we should not hastily assume that the trial court’s creativity will be unequal to that task in the instant case.

Rejecting the subclassification proposed by plaintiffs, the majority bar maintenance of this suit as a class action on three grounds: (1) that plaintiffs do not properly represent the members of the class; (2) that subclassification offends against the principle that each parcel of land is unique; arid *467 (3) that an unmanageable number of subclasses would be required. Each of these grounds lacks merit.

In order to eliminate issues which affect only a portion of the class, plaintiffs limited their prayer for damages to the diminution in market value caused by the flights, and declined to seek additional damages for annoyance, inconvenience, or actual physical injury. The majority maintain that plaintiffs’ failure to claim damages for such harm constitutes a breach of the fiduciary duty owing by plaintiffs to the class they represent.

This court gave short shrift to a similar contention in Chance v. Superior Court (1962) 58 Cal.2d 275 [ 23 Cal.Rptr. 761 , 373 P.2d 849 ]. In the present case, as in Chance , “all of the members of the instant class are ascertainable . . ., and it is assumed that they will be given notice of the pending class . . . action by registered mail or other like reliable method . . ., thereby being afforded an opportunity to decide whether to appear and argue for any and all appropriate or available forms of redress desirable from their individual points of view . . . .” ( 58 Cal.2d at p. 290 .) Thus the continued maintenance of this suit as a class action will permit the class members to choose between asserting their individual damage claims upon whatever theory they select and taking advantage of the economy and convenience of class representation.

Under these circumstances, the assertion that the plaintiffs are not properly representing the class, especially when presented by the defendant, strikes a hypocritical note. The majority opinion speaks of protecting the right of class members to damages, but destroys what'may be the only efficient means of redress. The cost and inconvenience of individual litigation may very well dissuade many members of the class from instituting individual suits, and the result of the present decision will then be that such members will recover no damages for loss of market value nor for any other harm.

The majority’s assertion that subclassification in the present case is incompatible with the maxim that each parcel of land is unique is both historically and logically unsound. This venerable maxim, which for centuries has served the useful but limited purpose of permitting equitable suits for specific performance of land sale contracts, has nothing to do with class actions. Uniqueness means only that each parcel of land differs in some particular from every other parcel, just as each person differs in some way from every other person. A valid classification, or subclassification, however, does not require that all members of the class possess identical characteristics; it requires only the existence of “issues common *468 to the class as a whole sufficient in importance so that their adjudication on a class basis will benefit both the litigants and the court.” (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 811.) The unique character of each parcel of land would not, in itself, prevent a court from concluding that the common issues of fact and law concerning all parcels justified the proposed subclassification.

Indeed, this court and others have often entertained actions brought on behalf of a class composed of the owners of interests in real property. (See, e.g., Chance v. Superior Court, supra, 58 Cal.2d 275 (action to foreclose trust deeds); Bauman v. Islay Investments (1973) 30 Cal.App.3d 752 [ 106 Cal.Rptr. 889 ] (tenants’ action to construe lease); Foster v. City of Detroit, Michigan (6th Cir. 1968) 405 F.2d 138 (inverse condemnation); Biechele v. Norfolk & Western Railway Co. (N.D.Ohio 1969) 309 F.Supp. 354 [7 A.L.R.Fed. 894] (nuisance).) The unique character of land did not destroy the classification in those cases; I perceive no reason why the maxim should carry greater weight in the' present case.

Finally, the majority assert that since the liability to each landowner will depend upon the use of each parcel, and such variables as noise, vapor, and vibration, compounded by factors of distance and direction, the number of subclassifications required approaches a statistical permutation of these elements. The reasoning is statistically erroneous, since it assumes that each element listed is independent of every other element. If, as seems more likely, the degree of noise, vapor, and vibration each vary directly with distance from the flight path, then these elements are not independent factors and do not require separate classification. (Cf. People v. Collins (1968) 68 Cal.2d 319, 328-329 [ 66 Cal.Rptr. 497 , 438 P.2d 33 , 36 A.L.R. 3d 1176 ].) The majority’s reasoning is also legally meritless, for it assumes that each diverse issue compels the creation of a separate subclass, an assumption which conflicts, with the principle that class litigation requires only that common issues predominate over diverse issues. 2

What the majority opinion overlooks are the manifest benefits arising from the use of a class action to resolve the controversy concerning noise and vibration damage to property in the vicinity of the San Jose Municipal Airport. There are 733 parcels within the area described by plaintiffs’ com *469 plaint. Seven hundred thirty-three separate trials, or even half that number, would overwhelm the courts. The mere filing of a single complaint and answer, in place of several hundred complaints and answers, represents a substantial saving of time and effort. The court could determine the question of compliance with the claims statute on the basis of a single class claim in place of numerous individual claims. Extensive — and expensive —expert testimony on noise and vibration patterns need be presented once, difficult legal issues of liability and governmental immunity need be resolved but once. Within each subclass, appraisers could assess damages to related properties without need for individual trials.

I conclude that neither the grounds stated in the majority opinion, nor the diverse issues here present, preclude the maintenance of this suit as a class action. The substantial saving in judicial time and litigation expense which would result from use of the class action format fully justify the trial court’s exercise of its discretion.

Mosk, J. and Taylor, J. * concurred.

The petitions of the real parties for a rehearing were denied October 2, 1974. Sullivan, J., did not participate therein. Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

The majority stress the argument that the diverse and individual issues in the present case bear upon the question of liability as well as damages. In fact, all diverse issues here pertain only to the proof of the existence and amount of damages. Plaintiffs, however, assert counts for nuisance and inverse condemnation; in both counts the existence of some damage is an essential element of the cause of action. Thus in a technical sense the diverse issues in the present case go to the question of liability —in that damage itself is an essential element of liability — but this factor does not prove that diverse issues here predominate over common issues. It demonstrates, instead, that the distinction between issues of liability and issues of damages is not a useful tool for determining the desirability of a class action in cases in which damage is not an independent controversy but an element of the cause of action.

The majority’s assertion that a great many subclasses would be required is pure supposition. The record, before us does not indicate how many subclasses will be necessary, and the trial court has rendered no finding on that subject. If later in this litigation the trial court discovers that the number of subclasses is so large that management of the class action is unfeasible, it can then decertify this suit as a class action. (Vasquez v. Superior Court, supra, 4 Cal.3d at p. 821.)