California Court Dismisses Berkeley Resident’s Class-Action Claims Against Neighboring Fraternities But Allows Case to Move Forward as a “Representative Action” Under Berkeley’s Municipal Code

Michael C. Osborne

A California trial court has recently again granted a dismissal of the class-action claims asserted by plaintiff Paul Ghysels against almost every fraternity located near the University of California at Berkeley.  Just one week before the 4-year anniversary of the filing of the class-action complaint in Ghysels v. Interfraternity Council, et al., Judge George C. Hernandez, Jr., of the Alameda County Superior Court’s Complex Litigation Department, dismissed the class-action claims, finding that “there is no reasonable possibility that the class proposed by plaintiffs could be certified for the panoply of nuisances alleged.”

In language that is likely applicable to a class action for nuisance against neighboring fraternities brought anywhere in the United States, Judge Hernandez’s order states:  “The court agrees that the claims, as pleaded, cannot be tried on a class basis because determining liability for common law nuisance involves a fact-intensive inquiry that is highly individualized in nature; because plaintiffs seek to try together claims against numerous defendants who have separate locations and management from other defendants; and because the court cannot envision, and plaintiffs have not proposed, methods to manage these individualized issues.”

While recognizing that “trial courts do not usually resolve class issues at the pleading stage,” the court issued its dismissal in reliance on the California Court of Appeal’s statement that when “a complaint, on its face, fails to allege facts sufficient to establish a community of interest as to the elements of the class claims, it would be a waste of time and judicial resources to require a full evidentiary hearing when the matter can properly be disposed of” by a summary dismissal.

After reviewing the law applicable to class actions, the judge concluded that “there does not appear to be any possibility that the nuisance claims pertaining to a substantial number of class members’ parcels can be tried together.”  He offered the following reasoning:  “For example, if Fraternity A played loud music on a particular Friday night, whether class members experienced an invasion of their right to quiet enjoyment of their property would depend upon their proximity to the fraternity, whether it was summer or winter (and thus whether windows were open, although persons with air conditioning might not be similarly affected), the orientation of their homes and the layout of their yards, the materials with which their homes were built, and whether the occupant was in fact at home.  Persons living at the other end of the campus zone may not have been impacted at all, and persons living in some intermediate area may have been impacted, but not to a substantial or unreasonable degree.  This example does not take into account the fact that, depending upon a location, an individual might be exposed to noise from two separate fraternities that only rise to the level of a private nuisance in the aggregate, but individually, would not constitute a nuisance.”

Before the hearing on the motion, Judge Hernandez issued a tentative ruling in which he noted that plaintiff’s attorneys “have requested leave to amend but have not stated how they would amend to address” the deficiencies of the claims.  In his tentative ruling, the judge challenged plaintiff’s attorneys to, at the hearing, “be prepared to state whether and how plaintiffs can amend the complaint” to survive another motion to dismiss.  At the hearing, one of plaintiff’s attorneys stated, “What do we do going forward?  It seems to me, and this is something we all have to take under submission I think because we just thought of that, that we might want to recast the case as not a class action but as a representative action under the Private Attorney General Statutes.”  (Hearing Transcript, italics added.)

After hearing this last-minute suggestion that plaintiff could amend to allege a “representative action,” the judge decided to allow plaintiff another opportunity to amend his complaint, acknowledging California’s “liberal policy” on allowing amendments.

Plaintiff has filed a Fifth Amended Complaint, in which plaintiff now contends that the Berkeley Municipal Code authorizes him to pursue a “representative action” for public nuisance on behalf of every single property owner and resident of the City of Berkeley.  As one of plaintiff’s other attorneys admitted at the hearing:  “And this is probably going to be, this is as far as I’m aware, the first case of attempting to enforce social standards using the” local Berkeley ordinance.

In April the judge, ruling on the plaintiffs’ Fifth Amended Complaint, found that plaintiffs may be able to pursue a “representative action” under Berkeley’s Municipal Code.  The judge has allowed the case to proceed now on its merits – with no class claim for damages and no class claim for injunctive relief.  The parties have begun preliminary discovery and return to Court in December for a further Case Management Conference.

Michael C. Osborne, a partner at Archer Norris in San Francisco, California, serves as lead counsel in the lawsuit originally filed in 2010 as a class action against 67 fraternity chapters and housing corporations, Ghysels v. Interfraternity Council et al.  He and his Greek Organization Litigation Practice Group defend fraternities and sororities in high-stakes litigation throughout the United States.  He can be reached at mosborne@archernorris.com.