Can a class representative be removed from the action even after judgment has been delivered?

Section 387 of the Code of Civil Procedure formerly limited intervention to a time before trial, but this limitation was removed by the 1977 amendment to the section, which now reads "Upon timely application" rather than "At any time before trial." Thus intervention is possible, if otherwise appropriate, at any time, even after judgment. (Cf. Fallon v. Superior Court, supra, 33 Cal.App.2d 48, 50-51, 90 P.2d 858, holding class members may intervene after judgment to protect their interests.)

And since the issue of intervention is not a matter "embraced in or affected by the judgment" the trial court is not deprived of jurisdiction pursuant to the "stay" provisions of Code of Civil Procedure section 916 when an appeal is perfected. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 97 Cal.Rptr. 385, 488 P.2d 953, app. dism. 406 U.S. 913, 92 S.Ct. 1762, 32 L.Ed.2d 112.)

As for the motion to remove a class representative, it is recognized that the class representative has a fiduciary obligation to the members of the class "surrendering any right to compromise the group action in return for individual gain." (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871, 97 Cal.Rptr. 849, 852, 489 P.2d 1113, 1116.) Indeed, the trial court retains jurisdiction to determine At any time that the named plaintiff is no longer fit to represent the class. (La Sala v. American Sav. & Loan Assn., supra.) Moreover, section 385 of the Code of Civil Procedure [89 Cal.App.3d 438] provides for a substitution of parties in the event of disability, while rule 48 of the Rules of Court specifically authorizes such substitution by the trial court where the reason requiring it arises during an appeal, "Whenever a substitution of parties to a pending appeal is necessary, it shall be made by proper proceedings instituted for that purpose in the superior court. On suggestion thereof and the presentation of a certified copy of the order of substitutionmade

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