cy pres doctrine in California

2000But “fluid recovery,” as the majority acknowledges, is simply a term California courts have sometimes adopted when referring to “ ‘the application of the equitable doctrine of cy pres in the context of a modem class action.’ ” (Maj. opn., ante, at p. 127; accord, Levi Strauss, supra, 41 Cal.3d at p. 472 .) Interchangeably, we have used the term “fluid distribution.” (See Levi Strauss, supra, at p. 474 .) The cy pres doctrine originated in the common law of charitable trusts: “Where compliance with the literal terms of a charitable trust became impossible, the funds would be put to ‘the next be

2000But “fluid recovery,” as the majority acknowledges, is simply a term California courts have sometimes adopted when referring to “ ‘the application of the equitable doctrine of cy pres in the context of a modem class action.’ ” (Maj. opn., ante, at p. 127; accord, Levi Strauss, supra, 41 Cal.3d at p. 472 .) Interchangeably, we have used the term “fluid distribution.” (See Levi Strauss, supra, at p. 474 .) The cy pres doctrine originated in the common law of charitable trusts: “Where compliance with the literal terms of a charitable trust became impossible, the funds would be put to ‘the next be

1971“It being established that the bequest actually is a charitable one, it becomes the duty of the court, if possible, to apply cy pres.” (Estate of Faulkner, 128 Cal.App.2d 575, 579 [ 275 P.2d 818 ].) The purpose of the application of the cy pres doctrine is to prevent the failure of valid charitable trust gifts.

1971“It being established that the bequest actually is a charitable one, it becomes the duty of the court, if possible, to apply cy pres.” (Estate of Faulkner, 128 Cal.App.2d 575, 579 [ 275 P.2d 818 ].) The purpose of the application of the cy pres doctrine is to prevent the failure of valid charitable trust gifts.

1978Rep. 79, 80 [primary beneficiary ceased to exist, legacy to second beneficiary pursuant to express gift-over provision, notwithstanding the subsequent incorporation of primary beneficiary by same persons for similar purposes]; In re Loring Estate (1946) 29 Cal.2d 423, 436 [ 175 P.2d 524 ]; In re Harrington’s Estate, supra, 36 N.W.2d 577, 583 ; Mississippi Children’s Home Society v. City of Jackson (1957) 230 Miss. 546 [ 93 So.2d 483, 487-488 ]; Rest.2d Trusts, supra, § 399, com. c, p. 299; compare, Estate of Lamb (1971) 19 Cal.App.3d 859, 867 [ 97 Cal.Rptr. 46 ]: “The absence of a gift over is

1978Rep. 79, 80 [primary beneficiary ceased to exist, legacy to second beneficiary pursuant to express gift-over provision, notwithstanding the subsequent incorporation of primary beneficiary by same persons for similar purposes]; In re Loring Estate (1946) 29 Cal.2d 423, 436 [ 175 P.2d 524 ]; In re Harrington’s Estate, supra, 36 N.W.2d 577, 583 ; Mississippi Children’s Home Society v. City of Jackson (1957) 230 Miss. 546 [ 93 So.2d 483, 487-488 ]; Rest.2d Trusts, supra, § 399, com. c, p. 299; compare, Estate of Lamb (1971) 19 Cal.App.3d 859, 867 [ 97 Cal.Rptr. 46 ]: “The absence of a gift over is

1979(Bogert, supra, at p. 490.) Further illumination of the doctrine is found in Restatement Second of Trusts (§ 399, com. o, p. 305) where, in a discussion of the cy pres doctrine, it states: “If a testator devises or bequeaths property to a charitable corporation or association which refuses to accept the devise or legacy, or which is incapable of taking or holding it, or which is not in existence, the disposition will not fail if the testator manifested an intention to devote the property to charitable purposes and not merely to make a gift to the particular corporation or association.” In Esta

1979(Bogert, supra, at p. 490.) Further illumination of the doctrine is found in Restatement Second of Trusts (§ 399, com. o, p. 305) where, in a discussion of the cy pres doctrine, it states: “If a testator devises or bequeaths property to a charitable corporation or association which refuses to accept the devise or legacy, or which is incapable of taking or holding it, or which is not in existence, the disposition will not fail if the testator manifested an intention to devote the property to charitable purposes and not merely to make a gift to the particular corporation or association.” In Esta

1976In view of the contentions of Museum, Stanford and the Attorney General, we turn to an analysis of the trust doctrines of “cy pres” and “deviation.” The cy pres doctrine has been stated as follows: “ ‘If a trust for charity . . . becomes . . . impossible or impracticable of fulfillment. . . , and if the settlor, or testator, manifested a general intention to devote the property to charity, [a court of equity] may, on application of any trustee, or any interested party or the attorney general of the state, order an administration of the trust, devise or bequest as nearly as possible to fulfill

1976In view of the contentions of Museum, Stanford and the Attorney General, we turn to an analysis of the trust doctrines of “cy pres” and “deviation.” The cy pres doctrine has been stated as follows: “ ‘If a trust for charity . . . becomes . . . impossible or impracticable of fulfillment. . . , and if the settlor, or testator, manifested a general intention to devote the property to charity, [a court of equity] may, on application of any trustee, or any interested party or the attorney general of the state, order an administration of the trust, devise or bequest as nearly as possible to fulfill

2006(In re Vitamin Cases (2003) 107 Cal.App.4th 820, 826 [ 132 Cal.Rptr.2d 425 ] (Vitamin Cases).) “In the class action context, the cy pres doctrine is generally denominated ‘fluid recovery.’ ” (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472 [ 224 Cal.Rptr. 605 , 715 P.2d 564 ] (Levi Strauss).) Under the latter doctrine, when it is not possible or practicable in a class action judgment to compensate class members according to their respective damages, the best alternative for the court is to award damages in a way that benefits as many of the class members as possible, despit

2006(In re Vitamin Cases (2003) 107 Cal.App.4th 820, 826 [ 132 Cal.Rptr.2d 425 ] (Vitamin Cases).) “In the class action context, the cy pres doctrine is generally denominated ‘fluid recovery.’ ” (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472 [ 224 Cal.Rptr. 605 , 715 P.2d 564 ] (Levi Strauss).) Under the latter doctrine, when it is not possible or practicable in a class action judgment to compensate class members according to their respective damages, the best alternative for the court is to award damages in a way that benefits as many of the class members as possible, despit

1980In Estate of Mabury (1976) 54 Cal.App.3d 969, 985 [ 127 Cal.Rptr. 233 ], the court noted that an essential ingredient of the cy pres doctrine is the requirement that the specific charitable purpose of the trust has become either impossible or impractical of fulfillment and interpreted this to mean permanent impossibility or impracticality.

1980In Estate of Mabury (1976) 54 Cal.App.3d 969, 985 [ 127 Cal.Rptr. 233 ], the court noted that an essential ingredient of the cy pres doctrine is the requirement that the specific charitable purpose of the trust has become either impossible or impractical of fulfillment and interpreted this to mean permanent impossibility or impracticality.

1976“The power to permit deviation from the terms of private trusts is analogous to the cy-pres doctrine applicable to charitable trusts.” (Stanton v. Wells Fargo Bank etc. Co. (1957) 150 Cal.App.2d 763, 770 [ 310 P.2d 1010 ].) (Italics in original.) In exercising the “deviation” power, “[t]he equity court is simply doing what the testator, presumably, would have done had he anticipated the changed conditions.

1976“The power to permit deviation from the terms of private trusts is analogous to the cy-pres doctrine applicable to charitable trusts.” (Stanton v. Wells Fargo Bank etc. Co. (1957) 150 Cal.App.2d 763, 770 [ 310 P.2d 1010 ].) (Italics in original.) In exercising the “deviation” power, “[t]he equity court is simply doing what the testator, presumably, would have done had he anticipated the changed conditions.

1971Code, § 2279.) ‘If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracti cable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.’ [Citation.]” (Society of Cal. Pioneers v. McElroy, 63 Cal.App.2d 332, 337 [ 146 P.2d 962 ].) The trial court in the present ca

1971Code, § 2279.) ‘If property is given in trust to be applied to a particular charitable purpose, and it is or becomes impossible or impracti cable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.’ [Citation.]” (Society of Cal. Pioneers v. McElroy, 63 Cal.App.2d 332, 337 [ 146 P.2d 962 ].) The trial court in the present ca

1971T. (1931) 213 Cal. 131,140-141 [ 2 P.2d 21 ] (which states “the cy pres doctrine, is in reality a mere matter of construction” of general charitable intent); see also 2 Rest. 2d Trusts, § 399, p. 305.) A further observation is pertinent before we progress with this dissertation: there is no specific mention of a trust in the will.

1971T. (1931) 213 Cal. 131,140-141 [ 2 P.2d 21 ] (which states “the cy pres doctrine, is in reality a mere matter of construction” of general charitable intent); see also 2 Rest. 2d Trusts, § 399, p. 305.) A further observation is pertinent before we progress with this dissertation: there is no specific mention of a trust in the will.

1979And if I were going to give a gift to the Heart Fund, I suppose it would go to the American Heart Association. [If] But without any intent being shown, I think the fairest thing to do is to divide it between the two of you.” After further colloquy between court and counsel, the court concluded by saying: “I think the doctrine of cy pres applies.” Discussion The words “cy pres” are Norman French for “as near.” When expanded to its full implication the phrase was “cy pres comme possible” and meant “as near as possible.” (See Bogert, Trusts and Trustees (rev. 2d ed. 1977) § 431, p. 490; and In re

1979And if I were going to give a gift to the Heart Fund, I suppose it would go to the American Heart Association. [If] But without any intent being shown, I think the fairest thing to do is to divide it between the two of you.” After further colloquy between court and counsel, the court concluded by saying: “I think the doctrine of cy pres applies.” Discussion The words “cy pres” are Norman French for “as near.” When expanded to its full implication the phrase was “cy pres comme possible” and meant “as near as possible.” (See Bogert, Trusts and Trustees (rev. 2d ed. 1977) § 431, p. 490; and In re

2000(See, e.g., Estate of Hinckley (1881) 58 Cal. 457, 512 [declaring that “in the general devolution upon the Courts of this State of all judicial power, with respect to charities, is included in the power cy pres”]; Estate of Tarrant, supra, at p. 49 [gift earmarked for nonexistent railway pension fund directed under cy pres to nonprofit corporation benefiting railway employees]; In re Morse (1995) 11 Cal.4th 184, 210-212 [ 44 Cal.Rptr.2d 620 , 900 P.2d 1170 ] [ordering that attorney who mass-mailed misleading advertisements about homesteading pay $170,000 “cy pres restitution” to consumer prote

1971A bequest intended as a charity is not void, and there is no authority to construe it to be legally void, if it can possibly be made good.' ( Estate of Hinckley, 58 Cal. 457, 513 ; Collier v. Lindley, 203 Cal. 641, 654 [ 266 P. 526 ]; Estate of Bunn, 33 Cal.2d 897 , 903 [ 206 P.2d 635 ]; see 14 C.J.S. § 6a, p. 427.) (6) Since the enactment of the Statute of Charitable Uses in 1601 (43 Eliz. c. 4; 7 Pickering's Eng.

2010News, pp. 2573-2577.) The Hart-Scott-Rodino Act was designed to fill the remedial gap that “sometimes resulted] in the unjust enrichment of antitrust violators and undermine[d] the deterrent effect of the treble damage action.” (Id. at pp. 2573-2574.) The remedial provisions of the Hart-Scott-Rodino Act focused on achieving full disgorgement of all illegal antitrust profits, using fluid recovery and the cy pres doctrine if necessary, because “[t]he only alternative—retention of the profits by the adjudicated wrongdoer—is unconscionable and unacceptable.” (Id. at pp. 2585-2586; see also id. at

2006(In re Vitamin Cases (2003) 107 Cal.App.4th 820, 826 [ 132 Cal.Rptr.2d 425 ] (Vitamin Cases).) “In the class action context, the cy pres doctrine is generally denominated ‘fluid recovery.’ ” (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472 [ 224 Cal.Rptr. 605 , 715 P.2d 564 ] (Levi Strauss).) Under the latter doctrine, when it is not possible or practicable in a class action judgment to compensate class members according to their respective damages, the best alternative for the court is to award damages in a way that benefits as many of the class members as possible, despit

2006(In re Vitamin Cases (2003) 107 Cal.App.4th 820, 826 [ 132 Cal.Rptr.2d 425 ] (Vitamin Cases).) “In the class action context, the cy pres doctrine is generally denominated ‘fluid recovery.’ ” (State of California v. Levi Strauss & Co. (1986) 41 Cal.3d 460, 472 [ 224 Cal.Rptr. 605 , 715 P.2d 564 ] (Levi Strauss).) Under the latter doctrine, when it is not possible or practicable in a class action judgment to compensate class members according to their respective damages, the best alternative for the court is to award damages in a way that benefits as many of the class members as possible, despit

2002Thus, it has limited relevance to the issue here, but the opinion’s logic supports our conclusion as follows: “The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action. . . . [Citations.] Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized. [Citation.] Without fluid recovery, defendants may be permitted to retain ill gotten gains simply because their conduct harmed large numbers of people in small amounts instead of small numbers of people in large amounts.” (

2002Thus, it has limited relevance to the issue here, but the opinion's logic supports our conclusion as follows: "The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action.... [Citations.] Fluid recovery may be essential to ensure that the policies of disgorgement or deterrence are realized. [Citation.] Without fluid recovery, defendants may be permitted to retain ill gotten gains simply because their conduct harmed large number of people in small amounts instead of small numbers of people in large amounts." (Levi

2000(See, e.g., Estate of Hinckley (1881) 58 Cal. 457, 512 [declaring that “in the general devolution upon the Courts of this State of all judicial power, with respect to charities, is included in the power cy pres”]; Estate of Tarrant, supra, at p. 49 [gift earmarked for nonexistent railway pension fund directed under cy pres to nonprofit corporation benefiting railway employees]; In re Morse (1995) 11 Cal.4th 184, 210-212 [ 44 Cal.Rptr.2d 620 , 900 P.2d 1170 ] [ordering that attorney who mass-mailed misleading advertisements about homesteading pay $170,000 “cy pres restitution” to consumer prote

2000(See, e.g., Estate of Hinckley (1881) 58 Cal. 457, 512 [declaring that “in the general devolution upon the Courts of this State of all judicial power, with respect to charities, is included in the power cy pres”]; Estate of Tarrant, supra, at p. 49 [gift earmarked for nonexistent railway pension fund directed under cy pres to nonprofit corporation benefiting railway employees]; In re Morse (1995) 11 Cal.4th 184, 210-212 [ 44 Cal.Rptr.2d 620 , 900 P.2d 1170 ] [ordering that attorney who mass-mailed misleading advertisements about homesteading pay $170,000 “cy pres restitution” to consumer prote

1986(See Estate of Tarrant (1951) 38 Cal.2d 42, 49 [ 237 P.2d 505 , 28 A.L.R.2d 419 ], and cases cited.) (3) In the class action context, the cy pres doctrine is generally denominated "fluid recovery." (4) The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action. ( Bruno v. Superior Court (1981) 127 Cal. App.3d 120, 129 [ 179 Cal. Rptr. 342 ] [hereafter Bruno ], citing Simer v. Rios (7th Cir.1981) 661 F.2d 655, 676 ; Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 389 [ 134 Cal. Rptr. 393 , 556 P.2d 755 ]

1986(See Estate of Tarrant (1951) 38 Cal.2d 42, 49 [ 237 P.2d 505 , 28 A.L.R.2d 419 ], and cases cited.) (3) In the class action context, the cy pres doctrine is generally denominated "fluid recovery." (4) The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action. ( Bruno v. Superior Court (1981) 127 Cal. App.3d 120, 129 [ 179 Cal. Rptr. 342 ] [hereafter Bruno ], citing Simer v. Rios (7th Cir.1981) 661 F.2d 655, 676 ; Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 389 [ 134 Cal. Rptr. 393 , 556 P.2d 755 ]

1986(See Estate of Tarrant (1951) 38 Cal.2d 42, 49 [ 237 P.2d 505 , 28 A.L.R.2d 419 ], and cases cited.) (3) In the class action context, the cy pres doctrine is generally denominated "fluid recovery." (4) The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action. ( Bruno v. Superior Court (1981) 127 Cal. App.3d 120, 129 [ 179 Cal. Rptr. 342 ] [hereafter Bruno ], citing Simer v. Rios (7th Cir.1981) 661 F.2d 655, 676 ; Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 389 [ 134 Cal. Rptr. 393 , 556 P.2d 755 ]

1986(See Estate of Tarrant (1951) 38 Cal.2d 42, 49 [ 237 P.2d 505 , 28 A.L.R.2d 419 ], and cases cited.) (3) In the class action context, the cy pres doctrine is generally denominated "fluid recovery." (4) The propriety of fluid recovery in a particular case depends upon its usefulness in fulfilling the purposes of the underlying cause of action. ( Bruno v. Superior Court (1981) 127 Cal. App.3d 120, 129 [ 179 Cal. Rptr. 342 ] [hereafter Bruno ], citing Simer v. Rios (7th Cir.1981) 661 F.2d 655, 676 ; Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 389 [ 134 Cal. Rptr. 393 , 556 P.2d 755 ]

1985County Pioneer *1219 Society, supra, 40 Cal.2d at pp. 866-867; Estate of Gatlin (1971) 16 Cal.App.3d 644, 650 [ 94 Cal.Rptr. 295 ]; Estate of Faulkner (1954) 128 Cal.App.2d 575, 579 [ 275 P.2d 818 ].) 2 The declaration of trust of the Poulsen Foundation expressed the broadest possible charitable purpose.

1985County Pioneer *1219 Society, supra, 40 Cal.2d at pp. 866-867; Estate of Gatlin (1971) 16 Cal.App.3d 644, 650 [ 94 Cal.Rptr. 295 ]; Estate of Faulkner (1954) 128 Cal.App.2d 575, 579 [ 275 P.2d 818 ].) 2 The declaration of trust of the Poulsen Foundation expressed the broadest possible charitable purpose.