MacManus

Frederick O. MacManus and Barbara-Helene Smith appeal orders (1) denying their application to allow a class action, (2) granting summary judgment against them on their cause of action under the Cartwright Act, (3) granting judgment on the pleadings to *1109 and dismissal of Realty Escrow, Inc., and (4) denying them leave to amend their complaint.

I

In 1979, MacManus and Smith purchased a home from A. E. Realty Partners (AERP). The sales agreement required their signatures on escrow instructions to be provided by AERP. 1 The forms were received bearing the name of Realty Escrow, Inc. (REI), a wholly owned subsidiary of AERP. MacManus and Smith had been informed of the relationship between the entities through the Real Estate Commissioner’s Public Report, but signed an escrow instruction stating “the services of any of the foregoing companies [including REI] may be used in connection with this transaction, that such use has not been made a condition of this sale by any party.” Escrow closed July 18, 1979, with fees paid in the amount of $319, allegedly in excess of the standard charge.

In July 1980, MacManus filed a class action on behalf of all AERP home-buyers who…

I respectfully concur in part, and dissent in part, in the result the majority reaches today.

1. Cartwright Act Action

I concur in reversing the order dismissing REI under the second cause of action because, as a result of the first MacManus appeal, it is law of the case *1118 that a Cartwright Act action is stated whether or not AERP and REI operate as a single entity. The majority’s analysis of the impact of Copperweld appears to be dicta, which should await decision in another case.

2. Class Action

I respectfully dissent from the reversal of the order denying class certification.

It is law of the case that the case’s key issue (whether AERP required buyers to use the services of REI as a condition precedent to purchase) is a question of fact to be resolved at trial. (MacManus v. A. E. Realty Partners (1983) 146 Cal.App.3d 275, 284 [ 194 Cal.Rptr. 567 ].) I would hold that this requires separate proof as to each purchaser, precluding a class action. (Fletcher v. Security Pacific National Bank (1979) 23 Cal.3d 442 [ 153 Cal.Rptr. 28 , 591 P.2d 51 ].) This case does not involve violation of a statute thereby precluding the need for individualized proof of lack of knowledge of…

SONENSHINE, Acting P.J.

Frederick O. MacManus and Barbara-Helene Smith appeal orders (1) denying their application to allow a class action, (2) granting summary judgment against them on their cause of action under the Cartwright Act, (3) granting judgment on the pleadings to and dismissal of Realty Escrow, Inc., and (4) denying them leave to amend their complaint.

In 1979, MacManus and Smith purchased a home from A.E. Realty Partners (AERP). The sales agreement required their signatures on escrow instructions to be provided by AERP. [1] The forms were received bearing the name of Realty Escrow, Inc. (REI), a wholly owned subsidiary of AERP. MacManus and Smith had been informed of the relationship between the entities through the Real Estate Commissioner's Public Report, but signed an escrow instruction stating "the services of any of the foregoing companies [including REI] may be used in connection with this transaction, that such use has not been made a condition of this sale by any party." Escrow closed July 18, 1979, with fees paid in the amount of $319, allegedly in excess of the standard charge.

In July 1980, MacManus filed a class action on behalf of all AERP…