Reyes v. Board of Supervisors

BENKE, J.—I concur.

The court below concluded Metcalf v. Edelman (N.D.I11. 1974) 64 F.R.D. 407 , precludes the class action herein. I do not believe it does so. Moreover, I would read Metcalf not as a confusing expression of law but as being consistent with that federal authority which defines when class certification is proper.

Existing California authority provides a class action is not inappropriate merely because each class member must, at some point, make an individual *1281 showing as to eligibility for recovery or the amount of damages involved. (Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266 [ 178 Cal.Rptr. 612 , 636 P.2d 575 ].)

Moreover, where there is but one essential issue to be pursued and each claimant’s entitlement to benefits depends upon the existence of this single issue rather than a separate set of issues or facts applicable to him, the class action may go forward. (Hypolite v. Carleson (1975) 52 Cal.App.3d 566, 579-580 [ 125 Cal.Rptr. 221 ] [class defined as those denied benefits because their parents maintained a home together elsewhere]; also see Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 617 [ 236 Cal.Rptr. 605 ] [class composed of those who were charged for one or more unanswered long distance calls; damage amount may vary; class action permitted]; Lazar v. Hertz Corp. (1983) 143 Cal.App.3d 128, 140 [ 191 Cal.Rptr. 849 ] [misrepresentation is inferred as to entire class, hence individual “minitrials” not necessary; class action permitted].)

However, where, after the common questions have been determined, each class claimant would still have to litigate a number of substantial questions peculiar to himself in order to recover, there does not exist a necessary community of interest and there is no assurance the class representative would indeed be representative. A class action is therefore improper. (See D'Amico v. Sitmar Cruises, Inc. (1980) 109 Cal.App.3d 323, 326 [ 167 Cal.Rptr. 254 ].)

The preceding rules are easy to articulate. However, the difficulty and danger in examining the number of issues at the class certification stage lies in determining at what point the number of substantial issues passes from the permissible number into the impermissible and whether the multiple issues problem will present itself at the liability or remedial stage of the proceedings. While it is certainly possible, and the court is duty bound to detect an unascertainable class at the certification stage, incorrect focusing at that time on the number of substantial issues potentially involved or when they will arise may in doubtful cases serve to prematurely foreclose a legitimate class action which might more properly be limited or eliminated by decertification in later proceedings on the merits.

Unfortunately, existing California authority does not clearly set forth how the lower court is to go about deciding whether existing issues are appropriately considered at the litigation’s merits stage or its remedial stage. As has been observed, the various rules and classifications contained in our case law respecting class actions are not easily reconcilable. (4 Wit-kin, Cal. Procedure (3d ed. 1985) Pleading, § 202, p. 238.)

*1282 One potential danger is that multiple issues which may arise and which can properly be absorbed into administrative proceedings and forums at the remedial stage, will be mistaken for an impermissible number of issues for purposes of the litigation on the merits. I believe this is what occurred below.

Whether the multiple issues will arise at the liability or remedial stages depends in large part upon the theory of liability to be advanced by the proposed class. For purposes of the case herein, it is instructive that there is federal authority where, despite potential differences amongst members’ claims, certification has been ordered because the legal theory of liability was “as broad as the class claimed.” (See Donaldson v. Pillsbury Co. (8th Cir. 1977) 554 F.2d 825, 832, fn. 6 ; Gibson v. Local 40, Supercargoes & Checkers, Etc. (9th Cir. 1976) 543 F.2d 1259, 1264-1265 ; Tonya K. v. Chicago Bd. of Educ. (N.D.Ill. 1982) 551 F.Supp. 1107, 1111 .) Metcalf v. Edelman, supra, 64 F.R.D. 407, 409 , upon which the trial court here relied, is consistent with these federal cases. Indeed, it appears to me that certification was denied in Metcalf not simply because of the number of issues involved, but because plaintiff’s counsel were unable to offer the court an objective definition of the class which was consistent with and as broad as their theory of liability, i.e., denial of a livelihood compatible with health and well-being. (Ibid.) In this case, the plaintiff’s theory of liability is that the county illegally sanctioned individuals without first drawing a distinction between those acting willfully and those acting nonwillfully. The proposed class—everyone “sanctioned”—is objectively discernible and coextensive with the theory of liability.

Although the county’s ultimate liability to each class member may well depend upon individual factual circumstances, the county’s existing administrative forums do provide a suitable means of protecting individual interests without sacrificing the efficacy of a class proceeding. Thus, contrary to the court’s ruling below, the holding in Metcalf is not an impediment to certification of the proposed class.

A petition for a rehearing was denied December 4, 1987, and appellants’ petition for review by the Supreme Court was denied March 3, 1988.