Petersen

Filed 12/11/

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHRISTINA I. PETERSEN et al.,

Plaintiffs and Appellants, G048387

v. (Super. Ct. No. 30-2011-00449059)

BANK OF AMERICA et al., OPINION

Defendants and Respondents.

Appeals from a judgment and an order of the Superior Court of Orange County, Gail Andrea Andler, Judge. Appeal from judgment. Reversed and remanded with directions. Appeal from order. Dismissed. Motion to augment record. Granted. Brookstone Law, Vito Torchia, Jr., Sasan Behnood, Carlos E. MacManus and Deron Colby for Plaintiffs and Appellants. Bryan Cave, Stuart W. Price, Trevor Allen and Douglas E. Winter for Defendants and Respondents. * * * This appeal, after a successful demurrer for misjoinder, tests the limits of California’s permissive joinder statute, section 378 of the Code of Civil Procedure.1 There are no less than 965 plaintiffs listed in the caption of the third amended complaint. Strictly speaking, though, this is a “mass action,” not a “class action.” Had…

This appeal, after a successful demurrer for misjoinder, tests the limits of California’s permissive joinder statute, section 378 of the Code of Civil Procedure. 1 There are no less than 965 plaintiffs *241 listed in the caption of the third amended complaint. Strictly speaking, though, this is a “mass action,” not a “class action.” Had this case been filed prior to 2005, in all probability it would have been filed as a class action. However, in 2005, Congress enacted the Class Action Fairness Act of 2005 (CAFA) codified at 28 United States Code section 1332 (d). (See generally Visendi v. Bank of America (9th Cir. 2013) 733 F.3d 863, 866-867 (Visendi).) CAFA allows the removal to federal court of state court class actions when there is a class with 100 or more class members, with at least one class member from a different state than at least one defendant, and there is more than $5 million at stake. (2 Newberg on Class Actions (5th ed. 2012) § 6:14, pp. 542-646.) That is certainly this case — if it had been filed as a class action. And perhaps even if it had not been so pleaded.

We face two questions of state law: First, despite the rather staggering number of joined…

Dissenting. — I respectfully dissent. I would affirm the correct decision of the trial court. The result of the majority’s decision to reverse the trial court will be as breathtaking as it is legally unsupported. The majority is approving the joinder of the claims of some 818 plaintiff home loan borrowers with the claims of the first named plaintiff, John P. Wright, into a single massive lawsuit. 1 This vast joinder of borrowers’ claims is unprecedented under California and federal law.

Joining the claims of so many plaintiffs not only is unprecedented, but also is not justified by the relevant standards and principles governing joinder. Code of Civil Procedure section 378, subdivision (a)(1) (section 378(a)(1)) permits joinder only if two requirements are satisfied: (1) the claims arise out of the same transaction or occurrence and (2) there is a common legal or factual question. Plaintiffs’ third amended complaint (the Complaint) does not come close to satisfying the standards for joinder under section 378(a)(1).

Plaintiffs’ claims did not arise out of the same transaction or occurrence; rather, they arose out of over 1,000 separate and distinct loan and loan modification…