Goldman v. County of Santa Barbara

asserted to be invalid. After the filing of the notice of appeal, the appellants sold their property. Consequently, the question to be determined prior to any consideration of the appeal on its merits is whether the matter has now become moot.

The appellants contend that the questions raised are not moot because the action does not relate solely to the particular parcel of land described in their pleading but is in the nature of a class or representative action. Moreover, they assert that Frank B. Malinowski, who has resided on property owned by him within 200 feet of their former residence since a time prior to the institution of the proceeding, relied on their action for the protection of his interests and should 'now be allowed to intervene therein. They also claim that, as owners of another parcel of land, not mentioned in their pleading, which is approximately 3 miles away from the proposed shopping center, they are aggrieved by the kind of zoning permitted under the ordinances which they attack. The nature of that property and of the particular zoning with respect thereto is not disclosed. Finally, they assert that as taxpayers they have a right to bring an action against public officials for illegal use or expenditures of public funds “in enforcing and regulating the zoning ordinances here in ques[tion.”

It is manifest that if the action must be considered as one brought by the appellants solely for the protection of their residential property particularly described in the complaint, which was adjacent to the proposed commercial development, as we think it must be,^[1] then the appeal must be

dismissed because the sale of that property rendered moot the question of injury to a property interest of the appellants as alleged in their pleading. (See McIntosh v. McIntosh, 70 Cal. App.2d 585 , 586 [ 161 P.2d 407 ]; Agnew v. Superior Court, 118 Cal.App.2d 230 , 233 [ 257 P.2d 661 ]; McKenna v. McCardle, 97 Cal.App.2d 304 , 305 [ 217 P.2d 433 ].) The appellants seek to avoid such a determination by the contention that the action is a representative or class action. The difficulty is that the pleading does not sufficiently sustain that position and there is no indication that it could be amended to overcome the defect. “ One who sues on behalf of a class must allege the facts which make the action a proper class suit and which justify his representation of the other members of the class.”^[2] (2 Witkin on California Procedure, p. 1452.) The only allegation with respect thereto in the present ease is that “petitioners bring this action on behalf of themselves and other owners of property and homes located in the immediate vicinity of said Petersen property who will be similarly damaged by the establishment of said commercial uses on said Peterson property.” That persons having a community of interest are many or that “the parties are numerous, and it is impracticable to bring them all before the Court,” is not evident. Such pleading is insufficient upon which to base an assertion that the action is representative in nature. (See 39 Am.Jur., Parties, § 53, p. 927; Note 132 A.L.R. 749 , 753.) The appellants’ position is not aided by Mr. Malinowski’s willingness to intervene because there is still no showing of the existence of the factual situation necessary for a representative suit under the provisions of section 382 of the Code of Civil Procedure. (See Kennedy v. Domerque, 137 Cal.App.2d Supp. 849 , 850 [ 290 P.2d 85 ].) The further arguments of the appellants that they are the owners of other property some distance away, not mentioned in their pleading, which property is subjected to damage because of invalid zoning legislation, and that they have a cause of action as taxpayers, are unavailing on the question of mootness. Such grounds of action are not embraced within the allegations of the present pleading, and, assuming that the appellants have such causes of action, they