Filed 10/15/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PATRICK ECK et al., B289717
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No. BC577028)
v.
CITY OF LOS ANGELES et al.,
Defendants and
Respondents;
CARMEN BALBER,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ann I. Jones, Judge. Dismissed.
Consumer Watchdog, Jerry Flanagan, Benjamin Powell
and Pamela Pressley for Objector and Appellant.
Ahdoot & Wolfson, Robert R. Ahdoot, Tina Wolfson,
Theodore W. Maya; Zimmerman Reed, Christopher P. Ridout and
Caleb L.H. Marker; Krause, Kalfayan, Benink & Slavens, Eric J.
Benink, Vincent D. Slavens; Moskovitz Appellate Team, Myron
Moskovitz and Christopher Hu for Plaintiffs and Respondents
Patrick Eck, Tyler Chapman, Brendan Eisan and Justin
Kristopher Le-Roy.
Michael N. Feuer, City Attorney, Benjamin Chapman,
Assistant City Attorney, for Defendants and Respondents City of
Los Angeles and the Los Angeles Department of Water and
Power.
____________________
Patrick Eck, on behalf of himself and a proposed class of
similarly situated Los Angeles County utility ratepayers, sued
the City of Los Angeles and the Los Angeles Department of
Water and Power (DWP) alleging DWP had overcharged
1
ratepayers for electric utility usage. After the court certified the
class for purpose of settlement and preliminarily approved a
settlement agreement between the parties, subject to a fairness
hearing, Carmen Balber, an unnamed class member, timely
objected to the settlement and filed an ex parte application to
intervene in the action. The court denied Balber’s application as
untimely, overruled her objection, approved the settlement and
entered a judgment in accordance with the settlement terms.
Balber’s subsequent statutory motion to vacate the judgment was
denied by operation of law.
On appeal from the judgment Balber contends the court
erred in approving the settlement agreement, primarily arguing
the notice sent to class members was inadequate. However, in
her briefs in this court Balber has not challenged the court’s
ruling denying her application to intervene; and she has not
appealed from the denial of her motion to vacate the judgment.
1
In addition to Eck, the other named class members are
Tyler Chapman, Brendan Eisan and Justin Kristopher Le-Roy.
2
Because Balber is not a party of record and has not utilized the
procedures available to alter her status, she lacks standing to
appeal from the judgment. Accordingly, the appeal is dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Putative Class Action
On April 1, 2015 Eck and other named plaintiffs, on behalf
of themselves and the proposed class of DWP ratepayers, filed a
putative class action alleging DWP had charged its electric utility
customers fees and other amounts that exceeded the cost of
providing electric utility service by approximately 8 percent;
these overcharges were designed to fund annual transfers from
DWP to the City’s reserve fund to benefit the City’s general fund;
and such transfers, which had not been approved by the voters,
constituted an illegal tax in violation of the California
Constitution.
2. Preliminary Approval of a Class Action Settlement
On September 14, 2017 the court conditionally granted
class certification for purposes of settlement and granted
preliminary approval of a proposed settlement agreement
between the class plaintiffs, on the one hand, and the City and
DWP, on the other hand. The proposed settlement created a
$52 million settlement fund, along with at least $243 million in
what the Eck parties have characterized as future savings for
ratepayers. The court scheduled a hearing concerning final
approval of the settlement and ordered notice to be provided to
all unnamed class members in accordance with the terms of its
order.
3. Balber’s Objection to the Proposed Settlement
On December 27, 2017, in response to the plaintiffs’ notice
of motion and motion for final approval of the class action
3
settlement, Balber timely objected to the proposed settlement. In
her papers supporting her objection, Balber primarily alleged
(1) notice of the proposed settlement was inadequate and/or
misleading because it failed to apprise class members of a
planned $241 million transfer of funds from DWP to the City for
fiscal year 2017-2018; and (2) the waiver and release provisions
of the settlement were overbroad in that they expressly permitted
DWP to make future transfers of funds to the City that amounted
to an unconstitutional tax.
4. Balber’s Unsuccessful Ex Parte Application To Intervene,
the Order Approving Settlement and Entry of Judgment
On February 14, 2018, the date of the fairness hearing,
Balber filed an ex parte application to intervene in the action.
The court denied the application as untimely, overruled Balber’s
objection (and the objections of other unnamed class members)
and, finding notice proper and the settlement agreement fair,
adequate and reasonable, granted final approval of the
settlement. The court entered judgment on February 26, 2018.
5. Balber’s Motion To Vacate the Judgment
On March 6, 2018 Balber moved to vacate the judgment
2
pursuant to Code of Civil Procedure section 663. Balber failed to
obtain a ruling on her motion, and it was denied by operation of
law on April 30, 2018. (§ 663a, subd. (b).)
6. Balber’s Appeal from the Ruling Denying Her Motion To
Intervene and from the Judgment
On April 27, 2018, while Balber’s motion to vacate was
pending, Balber filed a notice of appeal identifying the denial of
her ex parte application for leave to intervene and the judgment
2
Statutory references are to this code.
4
as the order/judgment from which she appealed. Balber did not
file a notice of appeal from the subsequent denial of her motion to
vacate the judgment.
DISCUSSION
1. Governing Law
Section 902 provides that “[a]ny party aggrieved” may
appeal a judgment. “‘It is generally held, however, that only
parties of record may appeal; consequently one who is denied the
right to intervene in an action ordinarily may not appeal from a
judgment subsequently entered in the case. [Citations.] Instead,
he [or she] may appeal from the order denying intervention.’”
(Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260,
263 (Hernandez).)
In Hernandez the Supreme Court reaffirmed its
longstanding precedent that unnamed class members do not
become parties of record under section 902 with the right to
appeal the class settlement, judgment or attorney fee award
unless they (1) move to intervene in the action before the action is
final, or (2) move under section 663a to vacate the judgment.
(Hernandez, supra, 4 Cal.5th at pp. 263-265, citing Eggert v. Pac.
States S. & L. Co. (1942) 20 Cal.2d 199, 201 (Eggert).) Then, if
either motion is unsuccessful, the unnamed class member may
appeal from the order denying intervention and/or the motion to
vacate. (Hernandez, at p. 269 [“‘[A]ppellants had ample
opportunity even after the court made its orders to become
parties of record by moving to vacate the orders to which they
objected. They could then have appealed from the order denying
the motion’”]; Eggert, at p. 201 [same].)
5
2. Balber Lacks Standing To Appeal the Judgment
Despite a notice of appeal identifying the court’s ruling
denying her application for leave to intervene, Balber has not
challenged in her appellate briefs the court’s ruling on her
request for intervention. Accordingly, as Balber acknowledges,
she has forfeited, or abandoned, any argument that could have, if
successful, permitted her to obtain standing in the action as a
party of record. (See Tiernan v. Trustees of Cal. State University
& Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on
appeal deemed forfeited or abandoned]; Sierra Palms
Homeowners Assn. v. Metro Gold Line Foothill Extension
Construction Authority (2018) 19 Cal.App.5th 1127, 1136 [same];
Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 729,
fn. 1 [same].)
Balber could have also obtained standing by appealing from
the denial of her statutory motion to vacate. (Hernandez, supra,
4 Cal.5th at p. 267 [“[s]econd, although not a method of
intervention, an unnamed party to the action may also become a
named party by filing an appealable motion to set aside and
vacate the class judgment under section 663,” italics added];
Eggert, supra, 20 Cal.2d at p. 201 [same]; see also Elliott v.
Superior Court (1904) 144 Cal. 501, 509 [a stranger to an action
“may make himself a party by moving to set aside such judgment
or order, and if his motion is denied may, on appeal from that
order, have the proceeding of which he complains” reviewed for
error].) However, Balber failed to appeal that postjudgment
ruling, even though it was an appealable order. (Ryan v.
Rosenfeld (2017) 3 Cal.5th 124, 134-135.)
Balber contends neither of those omissions—her failure to
challenge the court’s ruling on intervention in her appellate
6
briefs or her failure to appeal the denial of her motion to vacate—
defeats her standing on appeal. Relying on County of Alameda v.
Carleson (1971) 5 Cal.3d 730 (Carleson), Balber contends that all
that was required for her to obtain standing to contest the
judgment on appeal was to file a motion to vacate the judgment
in the trial court, which she did. Carleson does not assist Balber.
In Carleson several counties brought an action for
declaratory and injunctive relief against Robert Carleson, then
director of the Department of Social Welfare, contending certain
Department regulations pertaining to eligibility for federal
welfare grants were invalid. Three welfare recipients and a
California welfare rights organization (collectively CWRO) sought
to intervene in the action, alleging they had an interest in the
amounts of grants that were directly at issue in the lawsuit. The
trial court denied CWRO’s motion to intervene. On March 25,
1971 CWRO filed a notice of appeal from the ruling denying
intervention. On April 9, 1971 the court issued its judgment in
the underlying action. CWRO moved to vacate the judgment
pursuant to section 663; the court struck the motion, concluding
it was an improper vehicle to challenge the court’s ruling; and on
May 7, 1971 CWRO filed a notice of appeal “from the entire
proceedings in the case.” (Carleson, supra, 5 Cal.3d at pp. 734-
735.)
In concluding CWRO had standing on appeal to challenge
the judgment as a “party aggrieved” under section 902, the
Carleson Court emphasized CWRO’s motion to vacate: “CWRO
has contended that the trial court incorrectly concluded, on the
basis of the findings of fact, . . . , that existing regulations
promulgated and interpreted by Carleson were invalid. If the
court’s conclusion was indeed incorrect, that error could have
7
been reviewed by a motion to vacate under section 663. We
conclude, therefore, that CWRO became a party of record to the
[underlying] action, that it had standing to appeal from the
judgment in that case, and that consequently this court has
jurisdiction to determine the substantive issues raised [by
CWRO] in its appeal.” (Carleson, supra, 5 Cal.3d at p. 738.)
Balber focuses on this language in Carleson to support her
argument that it is the filing of the motion to vacate in the trial
court that creates standing, not the appeal of the court’s ruling
denying that motion. But in Carleson CWRO filed its second
notice of appeal after the court had struck its motion to vacate;
and CWRO’s notice of appeal from “all proceedings” encompassed
the court’s ruling striking that motion. (See § 906 [upon an
appeal from an appealable order, the reviewing court may review
any intermediate ruling or order that necessarily affects the
judgment or order appealed from or substantially affects the
rights of a party].) Finding CWRO’s motion to vacate
procedurally and substantively proper and implicitly concluding
the trial court erred in striking the motion, the Court then
considered the propriety of the judgment. (Carleson, supra,
5 Cal.3d at p. 738.) Unlike the appellant in Carleson, Balber did
not appeal from the denial of her motion to vacate or from any
other appealable order entered after the denial of its motion to
3
vacate. Accordingly, Balber remains a stranger to the action
3
Balber could have timely filed her notice of appeal from the
judgment after her motion to vacate was denied. (See Cal. Rules
of Court, rule 8.108(c) [extending time to file notice of appeal
following filing of motion to vacate]; see also § 663a, subd. (b)
[deadline for when motion to vacate is automatically denied by
operation of law].) Had she done so, we, like the Court in
8
without standing to challenge the judgment on appeal. (See
Hernandez, supra, 4 Cal.5th at p. 267; Eggert, supra, 20 Cal.2d at
p. 201.)
Finally, Balber contends her failure to appeal from the
denial of her motion to vacate was harmless error because, she
explains, any appeal from the denial of that motion would
necessarily have encompassed the propriety of the final judgment
from which she has filed a notice of appeal. However, there is no
harmless error exception for this unwaivable jurisdictional defect.
(People ex rel. Allstate Ins. Co. v. Dahan (2016) 3 Cal.App.5th
372, 376-377 [“‘“[A]n appeal may be taken only by a party who
has standing to appeal. [Citation.] This rule is jurisdictional.
[Citation.]” [Citation.] It cannot be waived’”]; Conservatorship of
Gregory D. (2013) 214 Cal.App.4th 62, 67 [same].)
DISPOSITION
Balber’s appeal from the judgment is dismissed. The Eck
plaintiffs, the City and DWP are to recover their costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J. SEGAL, J.
Carleson, could have liberally construed her notice of appeal from
the judgment to encompass the denial of her motion to vacate.
(See § 906; Cal. Rules of Court, rule 8.100(a)(2) [“[t]he notice of
appeal must be liberally construed”].)
9