Wechsler

This appeal is from an order sustaining a demurrer to a first amended complaint on the sole ground that “no claim properly cognizable as a class action is stated.” In all other respects, the demurrer was overruled.

The case of Daar v. Yellow Cab Co., 67 Cal.2d 695, 699 [ 63 Cal.Rptr. 724 , 433 P.2d 732 ] determined that where the legal insufficiency of the complaint as a class action is sought to be determined by an order sustaining the demurrer, the order is tantamount to a dismissal of the class action and is an appealable order.

The first amended complaint purports to state a cause of action on behalf of a class composed of former tenants of apartment houses owned and operated by defendants. It is alleged that at the termination of their leases the members of the class did not receive any interest on the key and security deposits which they were required to leave with defendants pursuant to their leases. The propriety of the action as a class action was not raised by demurrer. However, the court sustained the demurrer on this basis. Appellant contends that the propriety of the action as a class action is not a legitimate ground for demurrer. In support of his…