Diamond v. University of Southern California 11 Cal.App.3d 49 (1970) p775.
Subject:
Performance and breach: repudiation
Facts:
Complaint was filed 2 weeks after D's football team had been selected to play in the Rose Bowl game on January 1, 1969. D had promised to give holders of economy tickets an option to purchase a Rose Bowl ticket, if the team were selected to play there. After the selection, P received a note on Dec. 4 saying that due to circumstances beyond its control, first time economy season ticket holders could not be furnished with such applications. Because there were limited tickets available a system of priorities was established. Later, but after P had filed suit, enough tickets were still available, so first time economy ticket holders were eligible to buy tickets.
Procedure:
Kaus, an attorney, who in this class action represents himself and about 600 others "similarly situated," appeals from a judgment in defendant's favor. The judgement followed the superior court's granting of a motion for summary judgment. P sued for damages for himself and 600 other economy ticket holders.
Issue:
Sole purpose of this appeal: does P have a right to attorney's fees?
Rule:
The doctrine of anticipatory repudiation does not apply to unilateral contracts.
Holding:
Because the action was premature, P does not have a right to attorney's fees.
Rationale:
Although belatedly, D met its obligations to the members of plaintiff's class. Had P acted on his own behalf, D's offer to sell him a ticket would have destroyed any cause of action he had and that a summary judgment in D's favor alone would have been proper. No reason to reach a different result because this is a class action. When D repudiated on Dec. 4, its obligation the contract became unilateral because only D had an obligation to perform. Because it was unilateral, the doctrine of anticipatory repudiation does not apply.
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