Anthony v. Superior Court

COBEY, J.

I concur. In view of the fiduciary obligation of named plaintiffs to unnamed plaintiffs in a class action (see La Sala v. American Sav. & Loan Assn., 5 Cal.3d 864, 871 [97 Cal.Rptr. 849, 489 P.2d 1113]; Marcarelli v. Cabell, 58 Cal.App.3d 51, 54 [129 Cal.Rptr. 509]; L.A. Super. Ct., Manual for Conduct of Pretrial Proceedings in Class Actions, § 470; 15 Marshall, Cal. Practice, App., p. 475), it is clear to me that judicial approval of the proposed dismissal was properly required. I further agree with my colleagues that the trial court did not abuse its discretion in refusing to approve, under current circumstances, the dismissal of the underlying action.

I am unable to agree, however, with my colleagues’ suggestion, citing Jamison v. Butcher & Sherrerd (E.D.Pa. 1975) 68 F.R.D. 479, 484, and Norman v. McKee (N.D.Cal. 1968) 290 F.Supp. 29, 36, that it is never appropriate for a class action settlement to provide that the defendant shall pay plaintiffs’ attorney fees.

*773It is true that the “private attorney general” theory, as a basis for an award of attorney fees against a class action defendant, currently has an uncertain vitality in California.1 The appropriateness of its application to this case, however, seems clear to me in view of the increase in highway safety obtained, at least in part, by the plaintiffs for all who use the highways.

Furthermore, a negotiated dismissal under which the only monetary payment is to plaintiffs’ attorneys is not inappropriate under the circumstances of this case.2 Its principal objective, the recall of all trucks with defective wheels, has been achieved. Plaintiffs’ unlitigated damage claims seem to be of negligible value at best and the proposed dismissal is stated to be “without prejudice” as to the unnamed plaintiffs.3

Yet it is the fact that these unnamed plaintiffs have received neither notice of the proposed dismissal (including its terms) nor completely disinterested representation in the negotiation of the underlying settlement that causes me to concur with my colleagues. An inherent conflict of interest exists with respect to the proposed dismissal between plaintiffs’ attorneys on the one hand and their unnamed clients on the other.4

In my view, this conflict could be eliminated either (a) by court appointment of independent counsel who would give his opinion of the consequences of the dismissal for the unnamed plaintiffs or (b) by sending notice of the proposed dismissal (including its terms) to these plaintiffs and soliciting their objections, if any, to it. If the trial court *774were assured by either method that the unnamed plaintiffs could suffer no harm by the dismissal, then I would conclude that it would be within sound judicial discretion to approve a dismissal of this case on the terms proposed by the parties.

A petition for a rehearing was denied July 27, 1976, and petitioners’ application for a hearing by the Supreme Court was denied September 29, 1976. Mosk, J., was of the opinion that the application should be granted.

APPENDIX

SETTI EMENT AGREEMENT

RECITALS.

1. The case of,G. IV. Anthony and Herbert T. Lockerbie, Plaintiffs, v. Genera! Motors Corporation, Defendant, Superior Court of the State of California, County of Los Angeles, No. 959,058 (Class Action), was commenced by the named plaintiffs through their attorneys Zetterberg & Zetterberg (formerly Zetterberg & George) on August 12, 1969. In said action, the named plaintiffs purport to represent all owners of 1960 through 1965 ¾-ton Chevrolet or GMC trucks equipped with 15x5.50 Kelsey-Hayes three-piece disc wheels (hereinafter referred to as “TRUCKS”).

•2. On or about October 7, 1969, with the approval of the United States of America, Department of Transportation, General Motors Corporation mailed letters to all then known registered owners of such TRUCKS, offering to replace at General Motors expense the wheels on such TRUCKS which were equipped with a camper or other special body, and offering to reimburse the owners of such TRUCKS equipped with a camper or other special body in the event such owners had replaced their wheels subsequent to May 1969.

3. On October 17, 1969, the named plaintiffs, through their attorneys, filed a supplemental complaint, and on May 27, 1970, the named plaintiffs, through their attorneys, filed a first amended and supplemental complaint.

4. On September 2, 1969, Algird S. and Rida Bizer, Arizona residents and members of the class purported to be represented by named plaintiffs Anthony and Lockerbie, through their attorneys Dushoff & Sacks (formerly Dushoff, Sacks & Corcoran), of Phoenix, Arizona, filed the case of Bizer v. General Motors Corporation, No. C 226436 in the Superior Court of the State of Arizona, in and for the County of Maricopa. The named plaintiffs in the Bizer case purport to represent the same class as named plaintiffs Anthony and Lockerbie. The Bizer case was stayed by the Arizona Superior Court on December 12, 1969, pending the outcome of Anthony v. General Motors Corporation.

5. Following exhaustive briefing and lengthy hearings regarding the propriety of Anthony v. General Motors Corporation as a class action, and the refusal of the named plaintiffs to amend.their complaint so as to set forth claims solely on their own behalf, the Superior Court for the State of California, on December 22, 1971, ordered said case dismissed.

6. The named plaintiffs, through their attorneys, appealed from the Order of Dismissal, and on July 26, 1973, the District Court of Appeal reversed and remanded the *775case to this Court for further proceedings (G. W. Anthony, et al. v. General Motors Corporation, 33 Cal.App.3d 699).

7. On November 6, 1970, the case of United States of America v. General Motors Corporation, Civil No. 3298-70, was filed in the United States District Court for the District of Columbia. Said case involved the same truck wheels which are the subject matter of the Anthony and Bizer cases.

8. By virtue of a Consent Order dated November 6, 1975, entered in United States of America v. General Motors Corporation, General Motors was ordered to send and has sent notice by first-class mail to the persons who, according to the R. L. Polk & Co. survey commissioned by General Motors in the summer of 1974, are registered as owners of the TRUCKS involved in said District of Columbia case, offering to replace the wheels on said TRUCKS free of charge, and further offering to reimburse TRUCK owners who paid to replace said wheels on their own behalf subsequent to May 28, 1969.

9. Although the complaints in the Anthony and Bizer cases seek money damages of various sorts, the primary relief which has been sought in said cases from the outset has been an injunction requiring General Motors Corporation to replace the wheels on said TRUCKS free of charge. Now that this relief has been afforded to the named plaintiffs and the class they purport to represent in the Anthony and Bizer cases as a result of the Consent Order entered in United States of America v. General Motors Corporation, the remaining claims raised by the respective complaints in the Anthony and Bizer cases are of little, if any, significance and serious questions are posed to the Court as to whether said remaining claims, even if pursued, may appropriately be maintained on behalf of a class or at all.

10. The named plaintiffs and their attorneys (a) claim that the institution of the Anthony and Bizer cases and, as well, the diligent prosecution of the Anthony case on behalf of the named plaintiffs, contributed to the willingness of General Motors Corporation to enter into the Consent Order in United States of America v. General Motors Corporation, which said Consent Order has resulted in the named plaintiffs in the Anthony and Bizer cases and, as well, the members of the class they purport to represent, either receiving or being entitled to receive replacement of the wheels on their TRUCKS free of charge, and (b) claim that under its equitable powers the Court could, under various theories, require General Motors to pay attorneys’ fees to plaintiffs’ attorneys for their claimed contribution to obtaining the relief afforded the purported class as a result of the Consent Order. General Motors denies these claims and denies each and all of the material allegations contained in the respective complaints; denies that plaintiffs are entitled to maintain this action as a class action and denies any and all liability with regard to the respective complaints to the named plaintiffs, to the class they purport to represent as alleged in the complaint or otherwise and, as well, to plaintiffs’ attorneys.

11. Because the basic thrust of plaintiffs’ complaints in the Anthony and Bizer cases has now been rendered moot as a result of the Consent Order entered in United States of America v. General Motors Corporation, and because the parties are desirous of avoiding further litigation expense, time and effort and, as well, are desirous of not further burdening the Court with matters of little significance;

NOW, THEREFORE, IT IS AGREED between the parties hereto, by and through their respective counsel of record, subject to the approval of the Court, as follows:

1. The Anthony and Bizer actions, and each of them, shall be dismissed without prejudice, on behalf of the class the named plaintiffs purport to represent.

2. The Anthony and Bizer actions, and each of them, shall be dismissed with prejudice, on behalf of the named plaintiffs, and said named plaintiffs shall execute releases in favor of General Motors Corporation in the form annexed hereto as Exhibit A.

3. Concurrent with the dismissal of the Anthony and Bizer actions, as provided in paragraphs 1 and 2 hereof, and upon receipt of properly executed releases as set forth in *776paragraph 2 hereof, General Motors Corporation shall deliver its check in the amount of $300,000, as and for attorneys’ fees and costs rendered and/or incurred in connection with the Anthony and Bber cases, made payable to the law firm of Zetterberg & Zetterberg. It is expressly understood that the law firm of Zetterberg & Zetterberg agrees to hold harmless and indemnify General Motors Corporation against any and all claims regarding attorneys' fees and costs, of attorneys of record in the Bber case and the Anthony case, and of attorneys who may have assisted them. The responsibility for any distribution or allocation of said $300.000 in attorneys’ fees and costs to such other attorneys or law firms, if any, shall be the sole responsibility of Zetterberg & Zetterberg.

4. No Court determination shall.be made of the issues in this case, or of the conflicting claims of plaintiffs and General Motors or plaintiffs’ attorneys and General Motors, other than those which result as a matter of law from the dismissals with prejudice of the claims of the named plaintiffs in Anthony and Bier.

The theory was rejected by the United States Supreme Court in Alyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 263 [44 L.Ed.2d 141, 156, 95 S.Ct. 1612], Our Supreme Court has twice refused to pass upon the question. (See D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 27 [112 Cal.Rptr. 786, 520 P.2d 10], and Bozung v. Local Agency Formation Com., 13 Cal.3d 483, 485 [119 Cal.Rptr. 215, 531 P.2d 783].) Petitioners’ counsel informs us that our Supreme Court has granted a hearing in a case in which attorney fees were awarded on the basis of the private attorney general theory. See Serrano v. Priest, L.A. No. 30398; hg. granted Jan. 3, 1975.)

There is substantial evidence in the record before this court that petitioners’ attorney fees of $300,000 ar.e reasonable in light of the work done and result accomplished.

I am not now satisfied that such would be its effect. For example, if the action were to be dismissed, some plaintiffs might be unable to file new actions because of the running of the statute of limitations. (Cf. American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, 541-542 [38 L.Ed.2d 713, 720, 94 S.Ct. 756].)

In this connection. 1 want to stress that there is absolutely nothing in the record indicating any failure whatsoever of plaintiffs' attorneys to live up to their professional obligation to all their clients in negotiating the settlement underlying the dismissal.