Etcheson v. FCA US LLC, No. D072793 (D4d1 Dec. 27, 2018)
This case is pretty similar to the Warren case decided by the 4/2 two weeks ago. Like Warren, it's a Song-Beverly lemon law case where an attorney’s fee demand significantly exceeded the client's damages. Here, the trial court found that the Plaintiff was unreasonable in litigating the case after Defendant made a Code of Civil Procedure § 998 offer, even though the award Plaintiff ultimately obtained doubled the offer. The court awarded less than $3k in fees.
That was error. As we discussed re Warren, when the Legislature enacted the Song-Beverly Act, it specified that fees should be awarded based on the actual time expended by the attorney. In doing so, it was well aware that fee awards could exceed the amount in controversy. That permits consumers to obtain qualified counsel to enforce their rights, which would not be economically feasible if they needed to hire lawyers on contingency. Plaintiff wasn’t required to accept the § 998, and shouldn’t suffer negative consquences for beating it.
Reversed.
Monday, December 31, 2018
Saturday, December 29, 2018
DQ Is an Equitable, Not Per Se, Standard
Antelope Valley Groundwater Cases, No. F078517 (D5 Dec. 20, 2018)
Firm represents two water districts. District 1 has been embroiled in a litigation for almost two decades. District 2—for which a Firm partner acted as outside general counsel—was originally not in that litigation. But it was eventually brought in, although it retained different counsel. For twelve years, Firm represented District 1 in the litigation and District 2 as its general counsel. The litigation resolved through a settlement that resulted in entry of judgment. A month later, District 2 terminated the GC relationship. And then six months after that, District moved to DQ Firm from representing District 1 in the litigation due to conflicts.
Firm represents two water districts. District 1 has been embroiled in a litigation for almost two decades. District 2—for which a Firm partner acted as outside general counsel—was originally not in that litigation. But it was eventually brought in, although it retained different counsel. For twelve years, Firm represented District 1 in the litigation and District 2 as its general counsel. The litigation resolved through a settlement that resulted in entry of judgment. A month later, District 2 terminated the GC relationship. And then six months after that, District moved to DQ Firm from representing District 1 in the litigation due to conflicts.
Thursday, December 20, 2018
Prophylaxis, Not Punishment
City of San Diego v. Superior Court, No. D073961 (D4d1 Dec. 19, 2018)
Plaintiff is a detective, bringing some employment-related litigation with city’s police Department. Plaintiff’s lawyer also represents someone claiming that the Department fouled up a child sex assault investigation. As part of the leak investigation, Department's internal affairs interviewed Plaintiff, suspecting that she might be the leaker. The IAB folks ask about Plaintiff's conversations with her lawyer. Over her objections, they tell her―on insinuated threat of discipline―that she needs to answer. And she does. Some of these interviews were attended by a Deputy City Attorney. Plaintiff was repped in the interviews by a union lawyer, but her employment litigator was not present.
Plaintiff then moves to DQ the City Attorney’s office in the employment case, for invading her privilege. It not particularly debatable that City improperly violated Plaintiff’s attorney-client privilege. Moreover, because Deputy City Attorney participated in questioning Plaintiff about matters related to litigation when Plaintiff's lawyer wasn’t there, the Deputy violated Rule of Professional Conduct 2-100, which prohibits an attorney from communicating with a represented party.
That all said, a transcript of the interview was filed with the Court in camera. Whatever was elicited had nothing whatsoever to do with Plaintiff's employment case. Because DQ is premised on an opponent’s obtaining an unfair advantage, getting privileged, but irrelevant, info shouldn’t merit disqualifying the City Attorney's office. If there’s no prejudice to the ligation, whether the City Attorney should be subject to some sanction for violating the rules is not the Court’s role. That’s for the State Bar.
Affirmed.
Plaintiff is a detective, bringing some employment-related litigation with city’s police Department. Plaintiff’s lawyer also represents someone claiming that the Department fouled up a child sex assault investigation. As part of the leak investigation, Department's internal affairs interviewed Plaintiff, suspecting that she might be the leaker. The IAB folks ask about Plaintiff's conversations with her lawyer. Over her objections, they tell her―on insinuated threat of discipline―that she needs to answer. And she does. Some of these interviews were attended by a Deputy City Attorney. Plaintiff was repped in the interviews by a union lawyer, but her employment litigator was not present.
Plaintiff then moves to DQ the City Attorney’s office in the employment case, for invading her privilege. It not particularly debatable that City improperly violated Plaintiff’s attorney-client privilege. Moreover, because Deputy City Attorney participated in questioning Plaintiff about matters related to litigation when Plaintiff's lawyer wasn’t there, the Deputy violated Rule of Professional Conduct 2-100, which prohibits an attorney from communicating with a represented party.
That all said, a transcript of the interview was filed with the Court in camera. Whatever was elicited had nothing whatsoever to do with Plaintiff's employment case. Because DQ is premised on an opponent’s obtaining an unfair advantage, getting privileged, but irrelevant, info shouldn’t merit disqualifying the City Attorney's office. If there’s no prejudice to the ligation, whether the City Attorney should be subject to some sanction for violating the rules is not the Court’s role. That’s for the State Bar.
Affirmed.
Tuesday, December 18, 2018
On Appealablity
Donohue v. AMN Servs. Inc., No. D071865 (D4d1 Dec. 10, 2018)
The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.
But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.
The Court of Appeal here affirms a summary judgment for the defendant in a wage and hour case. Something about time clock rounding.
But the interesting procedural issue is the Court’s refusal to consider on appeal plaintiff’s post-judgment ex parte motion to strike the summary judgment. The court goes at this a few different ways, and some of them seem a little shaky. But maybe that’s because the law itself is kind of shaky.
Monday, December 17, 2018
Statistician as Star Chamber
McCleery v. Allstate Ins. Co., No. B282851 (D2d1 Dec. 14, 2018)
Plaintiffs in this wage and hour class action put forward a trial plan where the only evidence on liability would be statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The survey seems like it was analytically rigorous, but that’s still not going to fly.
First, it didn’t take into account important factual aspects of the case, such as the fact that plaintiffs were employed by contracting companies whose services were used by, among others, the two insurance companies that are defendants in the case. Without any breakdown of time worked for each defendant (or some other non-defendant customer of the contractor) core liability questions—questions like “did this employee work more than eight hours for any particular defendant?”—can’t be answered.
More fundamentally, even if the expert was doing a good job as a statistician, the survey still depended on questions like: From 2005 to 2008, how many times did you fail to take a meal break less than thirty minutes long? How many weeks in 2008 did you work more than forty hours? The veracity of the respondents and the quality of their recollection were, essentially, presumed. And because all the survey participants were anonymous, even to the expert, the multiple hearsay inside his opinions can’t be impeached or cross-examined. Which is a pretty big problem; it flies in the face the way trials are supposed work in the common law adversarial system.
No doubt, that experts can sometimes rely on inadmissible hearsay. And it is also true that statistical techniques have a valid role to play in wage-and-hour class actions. But an expert can’t be a conduit that dumps huge amounts of hearsay into evidence while shielding it from any meaningful adversarial testing. As the court explains, no case “suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be.”
Denial of class cert affirmed.
Plaintiffs in this wage and hour class action put forward a trial plan where the only evidence on liability would be statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members. The survey seems like it was analytically rigorous, but that’s still not going to fly.
First, it didn’t take into account important factual aspects of the case, such as the fact that plaintiffs were employed by contracting companies whose services were used by, among others, the two insurance companies that are defendants in the case. Without any breakdown of time worked for each defendant (or some other non-defendant customer of the contractor) core liability questions—questions like “did this employee work more than eight hours for any particular defendant?”—can’t be answered.
More fundamentally, even if the expert was doing a good job as a statistician, the survey still depended on questions like: From 2005 to 2008, how many times did you fail to take a meal break less than thirty minutes long? How many weeks in 2008 did you work more than forty hours? The veracity of the respondents and the quality of their recollection were, essentially, presumed. And because all the survey participants were anonymous, even to the expert, the multiple hearsay inside his opinions can’t be impeached or cross-examined. Which is a pretty big problem; it flies in the face the way trials are supposed work in the common law adversarial system.
No doubt, that experts can sometimes rely on inadmissible hearsay. And it is also true that statistical techniques have a valid role to play in wage-and-hour class actions. But an expert can’t be a conduit that dumps huge amounts of hearsay into evidence while shielding it from any meaningful adversarial testing. As the court explains, no case “suggests a trial may be conducted solely on the evidence of an expert witness relying on an anonymous double-blind survey, no matter how scientific the survey may be.”
Denial of class cert affirmed.
Friday, December 14, 2018
All About the Lodestar
Warren v. Kia Motors Am., Inc., No. E068348 (D4d2 Dec. 12, 2018)
Plaintiff won a jury verdict for about $17 grand on a Song-Beverly Act claim over a defective Kia Forte. That gave her a statutory right to attorneys’ fees under the Act. She submitted a fee motion for $350k in lodestar from 16 different lawyers, requesting a 1.5 multiple. The trial court ultimately awarded only $115k citing a “disconnect” between the damages and the billed time, giving an effective lodestar multiple of .33.
Plaintiff won a jury verdict for about $17 grand on a Song-Beverly Act claim over a defective Kia Forte. That gave her a statutory right to attorneys’ fees under the Act. She submitted a fee motion for $350k in lodestar from 16 different lawyers, requesting a 1.5 multiple. The trial court ultimately awarded only $115k citing a “disconnect” between the damages and the billed time, giving an effective lodestar multiple of .33.
Thursday, December 13, 2018
Anti-Vaxer Benchslap II!
Love v. State Dep’t of Ed., No. C086030 (D3 Dec. 6, 2018)
The Court of Appeal slaps down another constitutional challenge to the repeal of the personal belief exemption to child vaccination laws. The constitutionality of vaccination laws has been upheld by the California Supreme Court for over a hundred years. Of course, the Anti-Vaxers didn’t bother to cite any of those cases in their AOB. Ignoring controlling legal precedent is, it would seem, in the same genus of sophistry as ignoring overwhelming scientific consensus. Except that former Rule of Professional Conduct 5-200 (and, as of November 1, new Rule 3.3(a)(2)) says that attorneys don’t get to live in a legal land of their own creation. And the Court here, rightly, calls them out for it.
Affirmed.
The Court of Appeal slaps down another constitutional challenge to the repeal of the personal belief exemption to child vaccination laws. The constitutionality of vaccination laws has been upheld by the California Supreme Court for over a hundred years. Of course, the Anti-Vaxers didn’t bother to cite any of those cases in their AOB. Ignoring controlling legal precedent is, it would seem, in the same genus of sophistry as ignoring overwhelming scientific consensus. Except that former Rule of Professional Conduct 5-200 (and, as of November 1, new Rule 3.3(a)(2)) says that attorneys don’t get to live in a legal land of their own creation. And the Court here, rightly, calls them out for it.
Affirmed.
Insurers Litigating the '70s Get a Break
Mechling v. Asbestos Defendants, No. A150132 (D1d5 Dec. 11, 2018)
Plaintiffs claim they were exposed to asbestos due to the actions of a long-dead company that stopped operating in 1974. Some of them sent demands to DeadCo’s potential Insurer. Others did not. Insurer was unable to locate any policy providing coverage to DeadCo.
Plaintiffs sued DeadCo. They did not serve or join Insurer. Unsurprisingly DeadCo didn’t answer—it had long been suspended. So Plaintiffs’ get default judgments. Sometime thereafter, Insurer found some old policies showing that DeadCo was, in fact, their insured. So Insurer moved to intervene and vacate the defaults based on extrinsic mistake. The trial court granted the motion. Plaintiffs appeal.
As the Court of Appeal explains, courts have an inherent equitable power to relieve a party from a judgment that is entered based on extrinsic mistake. That’s a mistake—unrelated to conduct in the litigation itself—that somehow results in a party’s failure to get a fair disposition on the merits of the dispute.
To get relief, the defendant needs to show: “(1) a meritorious case; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.”
The first prong isn’t as big of a deal as it sounds. “Meritorious” doesn’t mean you need to prove you will win. Just that you have a case that’s worth deciding on the merits. And, affording the trial court the deference it gets on these kinds of discretionary decisions, Insurer made that showing. On these facts, the second and third factors aren’t too hard either. Insurer didn’t know it had policies until after the judgments were entered. We are, after all, talking about coverage for events that happened 44-plus years ago. For some of the litigation, they didn’t even have notice that cases were filed. And once Insurer figured out there was a potential for coverage, it promptly moved to intervene and vacate the defaults.
Affirmed.
Plaintiffs claim they were exposed to asbestos due to the actions of a long-dead company that stopped operating in 1974. Some of them sent demands to DeadCo’s potential Insurer. Others did not. Insurer was unable to locate any policy providing coverage to DeadCo.
Plaintiffs sued DeadCo. They did not serve or join Insurer. Unsurprisingly DeadCo didn’t answer—it had long been suspended. So Plaintiffs’ get default judgments. Sometime thereafter, Insurer found some old policies showing that DeadCo was, in fact, their insured. So Insurer moved to intervene and vacate the defaults based on extrinsic mistake. The trial court granted the motion. Plaintiffs appeal.
As the Court of Appeal explains, courts have an inherent equitable power to relieve a party from a judgment that is entered based on extrinsic mistake. That’s a mistake—unrelated to conduct in the litigation itself—that somehow results in a party’s failure to get a fair disposition on the merits of the dispute.
To get relief, the defendant needs to show: “(1) a meritorious case; (2) a satisfactory excuse for not presenting a defense to the original action; and (3) diligence in seeking to set aside the default once the fraud [or mistake] had been discovered.”
The first prong isn’t as big of a deal as it sounds. “Meritorious” doesn’t mean you need to prove you will win. Just that you have a case that’s worth deciding on the merits. And, affording the trial court the deference it gets on these kinds of discretionary decisions, Insurer made that showing. On these facts, the second and third factors aren’t too hard either. Insurer didn’t know it had policies until after the judgments were entered. We are, after all, talking about coverage for events that happened 44-plus years ago. For some of the litigation, they didn’t even have notice that cases were filed. And once Insurer figured out there was a potential for coverage, it promptly moved to intervene and vacate the defaults.
Affirmed.
Wednesday, December 12, 2018
Serial Discovery Abuser Gets Terminating Sanctions. And they Stick, for Once!
J.W. v. Watchtower Bible & Tract Society of N.Y., No. E066555 (D4d2 Dec. 10, 2018)
A Girl sued the Watchtower Society—the governing body of the Jehovah’s Witnesses—for its failure to prevent her from being molested by an elder of the Church. In discovery, she requested a copy of all correspondence received by the Church after it sent a letter to its congregations asking them to explain any occasions where persons known to have molested children were promoted to positions of authority with the Church. The Church claimed the documents were subject to the clergy-penitent privilege and that it would be unduly burdensome to search for them. The trial court disagreed and granted Girl’s motion to compel.
A Girl sued the Watchtower Society—the governing body of the Jehovah’s Witnesses—for its failure to prevent her from being molested by an elder of the Church. In discovery, she requested a copy of all correspondence received by the Church after it sent a letter to its congregations asking them to explain any occasions where persons known to have molested children were promoted to positions of authority with the Church. The Church claimed the documents were subject to the clergy-penitent privilege and that it would be unduly burdensome to search for them. The trial court disagreed and granted Girl’s motion to compel.
Friday, December 7, 2018
Shady, Shady, the Sequel
Lofton v. Wells Fargo Home Mortgage, No. A146282 (D1d3 Sept. 28, 2018)
Four years ago, the First District upheld a preliminary injunction against a Law Firm, preventing it from using a shady settlement tactic to obtain fees from a class action settlement outside the judicially supervised case by bringing, and allegedly settling a parallel individual case in a different jurisdiction. On remand, and after further development of the record on just how deceptive the Firm’s tactics were, the trial court found that the $6 million obtained from the individual settlement should have rightly been part of the common fund settlement to benefit the class. And on top of that, Law Firm wasn’t entitled to receive any fees and it had to pay the class back for incentive awards paid to three individual clients. The Court of Appeal affirms. And then it orders its opinion to be sent to the state bar.
Affirmed.
Four years ago, the First District upheld a preliminary injunction against a Law Firm, preventing it from using a shady settlement tactic to obtain fees from a class action settlement outside the judicially supervised case by bringing, and allegedly settling a parallel individual case in a different jurisdiction. On remand, and after further development of the record on just how deceptive the Firm’s tactics were, the trial court found that the $6 million obtained from the individual settlement should have rightly been part of the common fund settlement to benefit the class. And on top of that, Law Firm wasn’t entitled to receive any fees and it had to pay the class back for incentive awards paid to three individual clients. The Court of Appeal affirms. And then it orders its opinion to be sent to the state bar.
Affirmed.
Thursday, December 6, 2018
Sanctions Switcharoo in San Diego
CPF Vaseo Assocs., LLC v. Gray, No. D072909 (D4d1 Dec. 6, 2018)
There was a period of time where there was a spit of authority about whether Code of Civil Procedure § 128.5 required a party moving for sanctions to pre-serve the motion on the alleged offender to provide an opportunity to withdraw the offensive pleading. (This is known as the safe harbor rule.) But the Court here settles the issue.
Section 128.5 has bounced in and out of the code a few times over the years. It expired in the '90s when a different sanctions statute—§ 128.7—was enacted. But then it was brought back to life in 2014. Back in 2016, the 4/1 held that the safe harbor rule didn’t apply to § 128.5. The Legislature subsequently amended the statute to make clear that it did. But then at the beginning of 2018, the 2/7—in post-amendment case applying pre-amendment law—held that the safe harbor applied all along. And now—in yet another case applying pre-amendment law—the 4/1 sees the error of its ways, agreeing with the 2/7 that the safe harbor rule always applied to motions under § 128.5.
Reversed.
There was a period of time where there was a spit of authority about whether Code of Civil Procedure § 128.5 required a party moving for sanctions to pre-serve the motion on the alleged offender to provide an opportunity to withdraw the offensive pleading. (This is known as the safe harbor rule.) But the Court here settles the issue.
Section 128.5 has bounced in and out of the code a few times over the years. It expired in the '90s when a different sanctions statute—§ 128.7—was enacted. But then it was brought back to life in 2014. Back in 2016, the 4/1 held that the safe harbor rule didn’t apply to § 128.5. The Legislature subsequently amended the statute to make clear that it did. But then at the beginning of 2018, the 2/7—in post-amendment case applying pre-amendment law—held that the safe harbor applied all along. And now—in yet another case applying pre-amendment law—the 4/1 sees the error of its ways, agreeing with the 2/7 that the safe harbor rule always applied to motions under § 128.5.
Reversed.
Taking an Appeal of Third Party Arbitration Discovery
Uber Techs., LLC v. Google, Inc., No. A153653 (D1d3 Oct. 10, 2018)
The California Arbitration Act permits arbitrators and arbitral bodies to issue subpoenas. See Code Civ. Proc. § 1282.6. But a non-party that gets a subpoena issued out of an arbitration has never consented to having a private party adjudicate its rights. So, as the California Supreme Court has made clear, the nonparty can take the matter to a superior court and file a special proceeding for a de novo review of any order compelling discovery. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 44 Cal. 4th 528 (2008). Which is what happened here.
The California Arbitration Act permits arbitrators and arbitral bodies to issue subpoenas. See Code Civ. Proc. § 1282.6. But a non-party that gets a subpoena issued out of an arbitration has never consented to having a private party adjudicate its rights. So, as the California Supreme Court has made clear, the nonparty can take the matter to a superior court and file a special proceeding for a de novo review of any order compelling discovery. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 44 Cal. 4th 528 (2008). Which is what happened here.
Wednesday, December 5, 2018
Service by Laguna News-Post Isn't Gonna Cut It
Calvert v. al Binali, No. B282984 (D2d8 Dec. 4, 2018)
A Plastic Surgeon thinks a former Patient anonymously defamed him on the Internet. He’s really not sure. But that doesn't stop him from suing Patient for defamation. He has trouble serving process, however. Surgeon makes a number of attempts to serve Patient at some address in the OC that she’s loosely affiliated with. Someone there mentions that Patient is actually Canadian. Surgeon, however, makes no effort to serve in Canada.
In any event, sooner or later, the trial court decides Surgeon’s done enough to qualify for service by publication in the OC Register. The notices, however, get published in the Laguna News-Post, which is some local outfit owned by the Register, but with 1 percent of the circulation. Surgeon ultimately gets $2 million default judgment and starts lurking around the Great White North to enforce it.
When Patient gets word of that, she moves to vacate the judgment under Code of Civil Procedure § 473(d) as facially void. A judgment can be vacated under § 473(d) when a jurisdictional defect is apparent from the face of the record. In the case of a default judgment, the record includes the judgment itself, as well as the service proof docs, which are necessary to show that the trial court had personal jurisdiction over the defaulted defendant.
Problem here is that the Court’s order for publication in the OC Register wasn’t followed. Service by publication is not favored, so any failure to strictly comply with the rules and the Court’s order renders service, and thus personal jurisdiction, inadequate. Which is the case here.
Reversed.
A Plastic Surgeon thinks a former Patient anonymously defamed him on the Internet. He’s really not sure. But that doesn't stop him from suing Patient for defamation. He has trouble serving process, however. Surgeon makes a number of attempts to serve Patient at some address in the OC that she’s loosely affiliated with. Someone there mentions that Patient is actually Canadian. Surgeon, however, makes no effort to serve in Canada.
In any event, sooner or later, the trial court decides Surgeon’s done enough to qualify for service by publication in the OC Register. The notices, however, get published in the Laguna News-Post, which is some local outfit owned by the Register, but with 1 percent of the circulation. Surgeon ultimately gets $2 million default judgment and starts lurking around the Great White North to enforce it.
When Patient gets word of that, she moves to vacate the judgment under Code of Civil Procedure § 473(d) as facially void. A judgment can be vacated under § 473(d) when a jurisdictional defect is apparent from the face of the record. In the case of a default judgment, the record includes the judgment itself, as well as the service proof docs, which are necessary to show that the trial court had personal jurisdiction over the defaulted defendant.
Problem here is that the Court’s order for publication in the OC Register wasn’t followed. Service by publication is not favored, so any failure to strictly comply with the rules and the Court’s order renders service, and thus personal jurisdiction, inadequate. Which is the case here.
Reversed.
Monday, December 3, 2018
Intervene, Object, Opt-Out
Edwards v. Heartland Payment Sys., Inc., No. B284000 (D2d8 Nov. 30, 2018)
There are three overlapping wage and hour class actions against the same employer: Case #1, Case #2, and Case #3. Cases ## 1 and 2 were filed on the same day. Case #3 was filed two months later. The complaints get amended a bunch of times. Case #1 settles at a mediation where counsel for all three cases are present. Cases ##2 and 3 don’t settle. At the time of the settlement, Case #1 lacked a few of the claims that were alleged in Cases ##2 and 3. Post settlement, the Case #1 complaint was amended to add in these claims.
Plaintiffs in Case #3 moved to intervene in Case #1. A few days later, Case #1 Plaintiffs moved for preliminary approval. The court denied intervention, finding that any of the Case #3 plaintiffs who didn’t like the settlement could adequately protect their rights by objecting or opting out. Case #3 Plaintiffs took an appeal. While the appeal was pending, Case #3 plaintiffs briefed a number of issues related to the adequacy of the settlement in Case #1. Eventually, the overall settlement fund went up by $115k. Then the Court of Appeal entered a stay.
So the question is whether the trial court erred in finding that a right to object or opt out is a good as a full blown intervention to protect the rights of absent class members. The Court holds it is. Plaintiff’s main point is that, under the Supreme Court’s recent decision in Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th 260 (2018) a class member needs to intervene to preserve a right to appeal the approval of a settlement. But Hernandez gave a second option—an objecting class member’s right to appeal can be preserved by filing a motion to vacate the final judgment under Code of Civil Procedure § 663, which permits a motion by any “party aggrieved.” With that post-judgment option available, the class members could protect their interests, including their right to appeal, by opting out or objecting.
Affirmed.
There are three overlapping wage and hour class actions against the same employer: Case #1, Case #2, and Case #3. Cases ## 1 and 2 were filed on the same day. Case #3 was filed two months later. The complaints get amended a bunch of times. Case #1 settles at a mediation where counsel for all three cases are present. Cases ##2 and 3 don’t settle. At the time of the settlement, Case #1 lacked a few of the claims that were alleged in Cases ##2 and 3. Post settlement, the Case #1 complaint was amended to add in these claims.
Plaintiffs in Case #3 moved to intervene in Case #1. A few days later, Case #1 Plaintiffs moved for preliminary approval. The court denied intervention, finding that any of the Case #3 plaintiffs who didn’t like the settlement could adequately protect their rights by objecting or opting out. Case #3 Plaintiffs took an appeal. While the appeal was pending, Case #3 plaintiffs briefed a number of issues related to the adequacy of the settlement in Case #1. Eventually, the overall settlement fund went up by $115k. Then the Court of Appeal entered a stay.
So the question is whether the trial court erred in finding that a right to object or opt out is a good as a full blown intervention to protect the rights of absent class members. The Court holds it is. Plaintiff’s main point is that, under the Supreme Court’s recent decision in Hernandez v. Restoration Hardware, Inc., 4 Cal. 5th 260 (2018) a class member needs to intervene to preserve a right to appeal the approval of a settlement. But Hernandez gave a second option—an objecting class member’s right to appeal can be preserved by filing a motion to vacate the final judgment under Code of Civil Procedure § 663, which permits a motion by any “party aggrieved.” With that post-judgment option available, the class members could protect their interests, including their right to appeal, by opting out or objecting.
Affirmed.
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