Can a class action be sustained under section 382 of the Code of Civil Procedure?

Section 382 of the Code of Civil Procedure provides, in pertinent part, "... when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." Two requirements must be met to sustain a class action under section 382: There must be an ascertainable class, and there must be a well-defined community of interest in the questions of law and fact involved. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470, 174 Cal.Rptr. 515, 629 P.2d 23.) We find the present action eminently suitable for class action disposition.

Class members are "ascertainable" where they may be readily identified without unreasonable expense or time by reference to official records. (Hypolite v. Carleson (1975) 52 Cal.App.3d 566, 579, 125 Cal.Rptr. 221.) The identity of the class in the instant case is readily ascertainable from PERS' departmental records. Respondents' contention that the four named appellants cannot be certified as representatives of present and future recipients of benefit is erroneous. In construing the class to include future retired local safety members, respondents apparently relied upon the language in the appellant's original petition for writ of mandate rather than the subsequent notice of motion and motion for order determining that action is maintainable as a class action. The latter document seeks an order certifying a class to include only present retirees or widowed spouses receiving pensions. Moreover, in a very practical sense, named appellants are representative of future member employees. Their representative capacity stems from the fact that PERS will likely amend its administrative procedures to harmonize with the ultimate outcome of the substantive merits of this litigation, rather than pursue the undesirable alternative of repetitive and unavailing litigation.

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The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Richmond v. Dart Industries, Inc., supra, 29 Cal.3d 462, 470, 174 Cal.Rptr. 515, 629 P.2d 23.) In the present action, only the first [126 Cal.App.3d 933] two elements are disputed by the litigants. We find that appellant has satisfied both of the elements in question. The one decisive issue pervading the litigation, whether the class members have been wrongfully deprived of pension benefits by an improper method of computation, will not be decided on the basis of facts peculiar to each class member, but rather, on the basis of a single set of facts applicable to all members. Thus, appellants' action involves only one claim which turns on only one question of law common to all class members. Consolidation in a class action thereby creates substantial benefits for both the parties and the courts in that class action disposition averts the unnecessary risk of numerous and repetitive administrative and judicial proceedings with the attendant possibility of inconsistent adjudication.