Filed 9/17/19 Antoine v. Riverstone Residential CA, Inc CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

EVELYN ANTOINE et al.,

Plaintiffs and Respondents,

v.

RIVERSTONE RESIDENTIAL CA, INC. et al.,

Defendants and Respondents;

NELLY CASAFRANCA,

Objector and Appellant.

C083946

(Super. Ct. No. 34201300155974CUOEGDS)

We dismiss this appeal for lack of standing.

“Objector” Nelly Casafranca, who is not a named party of record, filed a notice of appeal from the trial court’s “FINAL APPROVAL ORDER AND JUDGMENT” approving a settlement in this class action lawsuit brought by employees (Evelyn Antoine et al.) against employers (Riverstone Residential CA, Inc., et al.) for unfair business practices and specified labor law violations regarding wages, meal and rest periods, etc. The class action suit includes a cause of action under the Labor Code Private Attorneys General Act of 2004 (PAGA), which authorizes employees to sue employers for statutory penalties for Labor Code violations and attorney fees. (Lab. Code, §§ 2698-2699.)

Casafranca, an unnamed class member, objected the Antoine settlement was invalid as to the PAGA claim for various reasons and would foreclose her own PAGA claim that she filed in Orange County Superior Court, alleging claims duplicative of those in the Antoine complaint. Casafranca filed the Orange County complaint as a “representative action” on behalf of herself and others similarly situated. (Lab. Code, § 2699, subds. (a), (g).)

The Sacramento County judge in the Antoine suit addressed and rejected Casafranca’s objections in a tentative ruling, adopted its tentative ruling, and specified in the “FINAL APPROVAL ORDER AND JUDGMENT” that “[t]he Objection of Nelly D. Casafranca to Proposed Settlement . . . is overruled and denied in its entirety.” The court retained jurisdiction to enforce the terms of the Settlement. Casafranca filed a notice of appeal.

After Casafranca filed her opening brief on appeal and appellant’s appendix, plaintiffs, joined by defendants, moved for dismissal of Casafranca’s appeal on the ground that she lacks standing because she did not make herself a party of record in the Sacramento County class action. We deferred ruling on the dismissal motion. We now grant respondents’ request for judicial notice and grant their motion to dismiss Casafranca’s appeal.

DISCUSSION

“Under Code of Civil Procedure section 902, ‘any party aggrieved’ may appeal a judgment. ‘It is generally held, however, that only parties of record may appeal . . . .’ ” (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 263 (Hernandez).)

Unnamed class members do not become parties of record under section 902 with the right to appeal the class settlement, judgment, or attorney fees award, unless they formally intervene in the class litigation before the action is final or file an appealable motion to set aside and vacate the class judgment under Code of Civil Procedure section 663. (Hernandez, supra, 4 Cal.5th at pp. 263, 267, reaffirming J. Traynor’s 75-year-old decision in Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199, 201.)

Unnamed class members who do not become parties of record are nevertheless bound by the outcome of the class action. (Williams v. Superior Court (2017) 3 Cal.5th 531, 548.)

The Supreme Court in Hernandez expressly disapproved of Court of Appeal cases that had allowed appeal by unnamed class member “objectors” who (like Casafranca) informally object to settlement during fairness hearings. (Hernandez, supra, 4 Cal.5th at p. 269.) The Supreme Court observed that those cases focused primarily on the “aggrieved” element of Code of Civil Procedure section 902 and failed to examine the statute’s additional element that the objector must also be a “ ‘party’ of record.” (Id. 4 Cal.5th at p. 270.) Hernandez also rejected reliance on federal authorities, because “[o]ur state common law, legislation, and procedural rules of court differ significantly from the federal common law and procedural rules. [Citations.]” (Id. at pp. 271-272.) Hernandez also noted policy considerations for its holding, for example, meritless objections can disrupt settlements by requiring class counsel to expend resources fighting appeals and by delaying the point at which settlements become final. (Id. at p. 272.) Justice Liu wrote a concurring opinion in Hernandez, agreeing to follow Eggert as a matter of stare decisis but suggesting the Legislature may wish to weigh in, given significant changes in class action litigation practice since Eggert. (Hernandez, supra, 4 Cal.5th at p. 274, concurring opn. by Liu, J.)

Here, it is undisputed that Casafranca did not formally intervene or move to set aside or vacate the judgment. Respondents ask us to take judicial notice of the register of actions from the Sacramento County Superior Court website, reflecting that Casafranca never sought to intervene in the class action and never filed a motion to set aside and vacate the judgment. Casafranca opposes judicial notice, arguing the register is not itself a court record subject to judicial notice under Evidence Code section 452, subdivision (d), and even if it is, we cannot take judicial notice of truth of facts asserted therein. However, Casafranca does not claim that the register is incorrect and does not claim that she filed anything in the trial court to intervene or set aside or vacate the judgment. And we can take judicial notice that no filing for intervention or motion to set aside or vacate the judgment appears in the trial court’s register of actions. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of records of any court of this state]; D. Cummins Corp. v. United States Fidelity & Guaranty Co. (2016) 246 Cal.App.4th 1484, 1492, fn. 8 [appellate court took judicial notice of trial court’s register of actions]; Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 855, fn. 2 [judicial notice of docket entries on trial court’s public website].)

Casafranca argues the rules for becoming a party of record in class action litigation do not apply here, because she challenges the class settlement only as to the PAGA claim, and Hernandez did not involve a PAGA claim, and a PAGA claim need not be filed as a class action. She cites Arias v. Superior Court (2009) 46 Cal.4th 969, which held class action requirements did not need to be met where the employee filed a PAGA claim as a “representative action” rather than a class action. (Id. at p. 975, citing Lab. Code, § 2699, subd. (a).) Class action requirements did apply, however, to the complaint’s other causes of action for unfair competition (Bus. & Prof. Code, § 17200 et seq.), which the Court struck due to failure to comply with class action requirements. (Id. at p. 977.) Arias held “an employee who, on behalf of himself and other employees, sues an employer under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) for Labor Code violations must satisfy class action requirements, but . . . those requirements need not be met when an employee’s representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.).” (Arias, supra, 46 Cal.4th at p. 975.)

However, Arias did not hold that a PAGA claim must be filed as a representative action rather than a class action. To the contrary, Arias said: “In a ‘representative action,’ the plaintiff seeks recovery on behalf of other persons. There are two forms of representative actions: those that are brought as class actions and those that are not. [Citations.]” (Id. 46 Cal.4th at p. 977, fn. 2.) The Supreme Court also stated: “Actions under the Labor Code Private Attorneys General Act of 2004 may be brought as class actions. (See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1173.) At issue here is whether such actions must be brought as class actions.” (Arias, at p. 981, fn. 5.) In Amaral, a PAGA claim was pursued as a class action (without objection on that ground) together with other class action claims against the employer, and the appellate court stated PAGA allows class members to recover PAGA penalties. (Amaral, at pp. 1173, 1197-1198.)

Arias rejected the employer’s argument that PAGA should be construed as requiring that all PAGA claims be brought as class actions. (Id. 46 Cal.4th at p. 984.) An employee suing under PAGA does so as the proxy or agent of the Labor Workforce Development Agency [LWDA], which lacks adequate resources to bring all such actions to recover civil penalties. (Id. at p. 986, citing Lab. Code, § 2699.) The employee may bring the action only after giving written notice to both the employer and LWDA (Lab. Code, § 2699.3, subd. (a)(1)), and 75 percent of any civil penalties recovered are distributed to LWDA (id., § 2699, subd. (i)). The remaining 25 percent is to be shared among affected employees. (Williams v. Superior Court, supra, 3 Cal.5th at p. 545.) A PAGA judgment “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias, supra, 46 Cal.4th at p. 986.)

Thus, a PAGA claim may be pursued as a class action, and when it is, unnamed class members do not become parties of record with the right to appeal under Code of Civil Procedure section 902 unless they formally intervene in the class litigation before the action is final, or file an appealable motion to set aside and vacate the class judgment under Code of Civil Procedure section 663. (Hernandez, supra, 4 Cal.5th at pp. 263, 267.)

Here, the Antoine lawsuit that included a PAGA claim was pursued as a class action. Originally, Ms. Antoine filed a class action complaint that did not include a PAGA claim, while other employees (not Casafranca) separately filed suits that did raise PAGA claims. All of these suits were incorporated in an amended complaint pursuant to a class-wide settlement, as stated in the Notice of Class Action Settlement filed with the Sacramento County Superior Court. The Sacramento court approved the settlement and allowed the filing of the amended complaint, which added the other plaintiff-employees as named plaintiffs in Antoine’s complaint. Casafranca was not included, because she did not initiate her own PAGA claim until after she received notice of the proposed settlement.

Since the PAGA claim in the lawsuit at issue in this appeal was pursued as a class action, class action rules apply, and Casafranca’s failure to make herself a party of record leaves her without standing to appeal.

Accordingly, Casafranca lacks standing to appeal, and we grant respondents’ motion to dismiss.

DISPOSITION

The appeal is dismissed.

HULL, Acting P. J.

We concur:

MAURO, J.

RENNER, J.