Filed 1/10/20 City of Huntington Beach v. Los Alamitos Community United CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF HUNTINGTON BEACH,

Plaintiff and Respondent,

v.

LOS ALAMITOS COMMUNITY UNITED et al.,

Movants and Appellants.

G057209

(Super. Ct. No. 30-2018-00984280)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, James L. Crandall, Judge. Dismissed.

Latham & Watkins, Melissa Arbus Sherry, Samir Deger Sen, William M. Friedman, Collen E. Heyler; ACLU Foundation of Southern California, Jennifer Pasquarella, Michael Kaufman, Sameer Ahmed; National Day Laborer Organizing Network, Jessica Karp Bansal; American Civil Liberties Union Foundation, Immigrants’ Rights Project, Spencer E. Amdur and Cody Wofsy for Movants and Appellants.

Michael E. Gates, City Attorney, and Brian L. Williams for Plaintiff and Respondent.

* * *

INTRODUCTION

The California Values Act, Government Code section 7284 et seq. (the CVA), restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities. The trial court concluded that one part of the CVA, Government Code section 7284.6 (section 7284.6), unconstitutionally infringed the authority of charter cities under article XI, section 5, subdivision (b) of the California Constitution to create, regulate, and govern city police forces. The court granted a petition for writ of mandamus brought by the City of Huntington Beach (the City or Huntington Beach) and ordered Xavier Becerra, as the California Attorney General, to refrain from enforcing section 7284.6 against the City.

In City of Huntington Beach v. Becerra, G057013, a companion appeal brought by the Attorney General, we hold section 7284.6 is constitutional as to charter cities and reverse the judgment with directions to enter judgment in favor of the Attorney General.

The appellants in this matter are Los Alamitos Community United, Samuel Pullen, Henry J. Josefsberg, Oscar Rodriguez, Victor Valladares, and Oak View ComUNIDAD (collectively, the Community Appellants). The Community Appellants identify themselves as “residents, workers, and community associations in the City of Huntington Beach and the nearby City of Los Alamitos” and claim they “represent some of the primary intended beneficiaries of the CVA.” The Community Appellants argue the CVA is a constitutional measure that promotes statewide concerns of public safety, health, and education.

The Community Appellants were not named as defendants by the City in its petition for writ of mandamus. Instead, they brought themselves into the litigation by filing a motion for a new trial after judgment was entered and then filed a notice of appeal after the motion for a new trial was denied.

After the record was filed, the City moved to dismiss the appeal on the ground the Community Appellants lack standing. We issued an order that the motion to dismiss would be decided in conjunction with the decision on appeal. We now conclude the Community Appellants lack standing to appeal under applicable law and therefore grant the City’s motion to dismiss the appeal. In the companion appeal, the Attorney General has vigorously—and successfully—argued the same legal points made by the Community Appellants.

FACTS AND PROCEDURAL HISTORY

I.

The Community Appellants

Los Alamitos Community United (LACU): LACU is an association of individuals “with strong ties to Los Alamitos” including people who live in Los Alamitos, people who work in Los Alamitos, people who send their children to schools in the Los Alamitos Unified School District, and people who pay property and other taxes. “L[ACU] is committed to honoring and protecting community diversity, including immigrants; opposing acts and messages of prejudice and hate directed at community diversity, including immigrants; and promoting reconciliation concerning community diversity and immigration in Los Alamitos and its surrounding areas.”

Samuel Pullen: The Reverend Samuel Pullen is the pastor of Community Congregational United Church of Christ of Los Alamitos (“CCUCC”), located in Los Alamitos. He is a resident of California. “A core belief of CCUCC and Rev. Pullen’s teachings is that no matter one’s race, gender, sexual orientation, class, creed, or immigration status, all people belong to God and to one worldwide community of faith.” Pullen claims the Los Alamitos Ordinance causes significant harm to his ability to serve his congregation in that immigrant members are less likely to attend church, pay dues, and otherwise participate in church services.

Henry J. Josefsberg: Henry J. Josefsberg has been a resident of Los Alamitos for over 20 years. He is an attorney and has his own law practice based in Los Alamitos. Mr. Josefsberg pays business taxes to Los Alamitos and property taxes for property located in that city. He has an interest in preventing the illegal expenditure of Los Alamitos funds, and an interest in ensuring that Los Alamitos law enforcement resources are not diverted to assist in deportation programs.

Oscar Rodriguez: Rodriguez is a community activist and cofounder of Oak View ComUNIDAD (Oak View). He is a United States citizen and resides in Huntington Beach. He pays city taxes, including sales and utility taxes. Although a United States citizen, he is more reluctant to deal with the Huntington Beach police officers because the trial court’s order allows them to help United States Immigration and Customs Enforcement (ICE) detain and deport people in violation of the CVA.

Victor Valladares: Valladares is a community activist and cofounder of Oak View. He is a United States citizen and resides in Huntington Beach. He pays city taxes, including sales and utility taxes. Although a United States citizen, he is more reluctant to deal with the Huntington Beach police officers because the trial court’s order allows them to help ICE detain and deport people in violation of the CVA.

Oak View: Oak View is an association of residents of Oak View, a predominately Hispanic neighborhood in Huntington Beach. Members of Oak View include immigrants with valid immigration status, immigrants without valid immigration status, and United States citizens. Oak View members pay property, sales, utility, and other taxes to Huntington Beach. Oak View advocates on behalf of residents of the Oak View neighborhood to address concerns on a wide range of issues, including “environmental justice, economic justice, education equity, and immigrants’ rights.”

II.

Mandamus Proceedings

The City filed a petition for writ of mandamus and a complaint for declaratory and injunctive relief to “invalidate the unconstitutional mandates of [the CVA] that impermissibly strip the City’s constitutionally protected Charter authority with respect to ‘municipal affairs.’” The petition alleged the CVA unconstitutionally violates the City’s authority to conduct municipal affairs guaranteed under article XI, section 5 of the California Constitution by mandating how the City operates its police force. As relief, the City prayed for issuance of writ mandate compelling the California Attorney General not to enforce the CVA against the City and for a declaration the CVA is unconstitutional and preempted by article XI, section 5 of the California Constitution. The Attorney General filed opposition, which included the legislative history of the CVA and declarations.

At a hearing conducted on the City’s petition for writ of mandamus and complaint, the City narrowed the scope of relief by identifying section 7284.6 as the “operative portion” of the CVA that the City sought to have invalidated.

The trial court granted the City’s petition for writ of mandamus and issued an order for issuance of a peremptory writ of mandate. A peremptory writ of mandate was issued ordering the Attorney General to refrain from enforcing section 7284.6 against the City. In a statement of decision, the court found: (1) the “‘constitution, regulation and government’” of a police force is a “quintessential municipal affair under Article XI, section 5(a) of the California Constitution”; (2) the “‘constitution, regulation and government’” of a police force is “a municipal prerogative specifically protected by constitutional text under Article XI, section 5(b) of the California Constitution;” and (3) “there is no ‘statewide concern’ justifying the state[’]s regulation of a Charter City’s police force.” The Attorney General’s appeal from the order granting the City’s Petition for writ of mandamus is the subject of the companion case.

III.

The Community Appellants’ Motion for a New Trial

After the trial court issued the peremptory writ of mandate, the Community Appellants filed a notice of intent to move for a new trial. This was the first time the Community Appellants appeared in the litigation. The notice of intent to move for a new trial stated the motion would be made under Code of Civil Procedure section 657(6) (“Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against the law”). The notice of intent stated the Community Appellants are “‘aggrieved’ nonparties with standing to challenge this judgment because their interests as residents of charter cities Huntington Beach and Los Alamitos are directly implicated by the court’s judgment.” The motion for a new trial was filed 10 days later.

The trial court denied the motion for a new trial for two reasons. First, the court found the Community Appellants were not legally aggrieved such that they could assert a claim and bring a motion for a new trial. The court found the Community Appellants did not have an “immediate, pecuniary and substantial interest” in enforcing section 7284.6, and their interests were adequately represented by the California Attorney General. Second, the court found, “[t]here is no showing that the judgment in the present action will act as res judicata[a] in the civil action brought by [the Community Appellants] against the City of Los Alamitos.”

The Community Appellants filed a notice of appeal from the order granting the City’s petition for writ of mandamus. An order granting or denying a petition for writ of mandamus is considered a final judgment for purposes of an appeal. (Public Defenders’ Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.)

DISCUSSION

I.

Nonstatutory Intervention to Become a Party to
an Appeal

The Community Appellants sought to become parties to the litigation by bringing a motion for a new trial after entry of judgment. The City argues the appeal must be dismissed because the correct vehicle for a nonparty who is aggrieved by a judgment to obtain standing to appeal is a motion to vacate a judgment under Code of Civil Procedure section 663 and not a motion for a new trial. Further, the City argues, the Community Appellants are not aggrieved by the judgment because whatever harm they might suffer is a consequence of the judgment rather than a result of its legal operation.

The starting point for our analysis is Code of Civil Procedure section 902, which states the fundamental rule that “[a]ny party aggrieved may appeal” from an adverse judgment or appealable order. The plain meaning of section 902 is to have standing to appeal, one must be (1) a party of record and (2) “aggrieved” by the judgment. (See Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 263 [only party of record who is aggrieved by judgment may appeal]; Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 131, fn. 5 [only party of record may appeal]; Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62, 67 [a party who is not aggrieved by judgment may not attack it on appeal].)

A nonparty can become a party of record to litigation by means of a motion to intervene. (Code Civ. Proc., § 387, subd. (c); see Hernandez v. Restoration Hardware, Inc., supra, 4 Cal.5th at p. 272 [“By filing an appeal without first intervening in the action, however, Muller never became an ‘aggrieved party’ of record to the action as our law requires”].) In County of Alameda v. Carleson (1971) 5 Cal.3d 730 (Carleson), the Supreme Court confirmed there is also a form of nonstatutory intervention. The Carleson court held: “[O]ne who is legally ‘aggrieved’ by a judgment may become a party of record and obtain a right to appeal by moving to vacate the judgment pursuant to Code of Civil Procedure section 663.” (Carleson, supra, at p. 736.) This was not a new proposition and, in its support, the court cited California Supreme Court opinions going back as far as 1904. (Ibid., citing Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199, 201 [“Appellants had ample opportunity even after the court had made its orders to become parties of record by moving to vacate the orders to which they objected”]; Elliott v. Superior Court (1904) 144 Cal. 501, 509 [nonparty injured by judgment “may make himself a party by moving to set aside such judgment”].) Thus, a nonparty, to become a party with standing to appeal, must (1) be aggrieved by the judgment and (2) move to vacate the judgment under Code of Civil Procedure section 663.

The City argues the nonstatutory intervention recognized by Carleson can only be achieved by moving to vacate the judgment. Three Court of Appeal opinions issued after Carleson have concluded a nonparty may bring a motion for a new trial rather than a motion to vacate the judgment to obtain standing to appeal. (In re Marriage of Burwell (2013) 221 Cal.App.4th 1, 15; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342 1343; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634.) The City argues these cases were wrongly decided and we should not follow them.

We need not address whether nonparties can obtain standing to appeal by bringing a motion for a new trial because, we conclude, the Community Appellants are not aggrieved by the order granting the City’s petition for writ of mandamus within the meaning of Code of Civil Procedure section 902.

II.

The Community Appellants Are Not Aggrieved by the Order Granting the City’s Petition for Writ of Mandamus.

For purposes of Code of Civil Procedure section 902, “[o]ne is considered ‘aggrieved’ whose rights or interests are injuriously affected by the judgment. [Citations.] Appellant’s interest ‘“must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.”’” (Carleson, supra, 5 Cal.3d at p. 737.)

The Community Appellants argue they are aggrieved by order granting the City’s petition for writ of mandamus and have an interest over and above the public’s interest because the superior court’s judgment “(1) causes them to suffer the exact harms the CVA was intended to prevent and (2) for Appellants from Los Alamitos, prejudices their ability to obtain relief in their related case to ensure the City of Los Alamitos also complies with the CVA.” The Community Appellants also argue they “are the intended beneficiaries of the CVA,” and “[b]ecause of the superior court’s order, Appellants suffer the exact harms that the CVA was enacted to prevent.”

There are six different Community Appellants, each in a different situation for purposes of appellate standing. Four Community Appellants are human beings and two are associations, one based in Los Alamitos and the other in Huntington Beach. Appellants argue “[m]any appellants are immigrants.” None is an undocumented immigrant. All four Community Appellants who are human beings are United States citizens. The two community associations might include immigrants among their members but the associations themselves are the parties.

Of the four human beings who are Community Appellants, two—Pullen and Josefsberg—do not purport to be personally subject to the harms the CVA was intended to prevent. Pullen is opposed to the Los Alamitos ordinance on moral and religious grounds, but that is not an immediate and substantial interest sufficient to confer standing. Pullen’s opposition to the Los Alamitos ordinance is no different from that shared by other members of the general public. Josefsberg opposes the Los Alamitos ordinance as a taxpayer with an interest in preventing the illegal expenditure of Los Alamitos funds. Josefsberg does not assert taxpayer standing under Code of Civil Procedure section 526a, and he is not asserting he is a taxpayer of Huntington Beach.

Two of the six Community Appellants—Valladares and Rodriguez—identify themselves as Latino. Although both Valladares and Rodrigues are citizens, they express reluctance to interacting with the Huntington Beach police officers for fear of providing information about persons who do not have valid immigration status and for fear of themselves being racially profiled. We do not accept the City’s contention that the fears and concerns of Valladares and Rodriguez are purely subjective. We accept their concerns are valid, however, those concerns are potential and remote consequences of the judgment rather than certain and immediate ones. As a consequence of the writ of mandate in favor of the City, it is entirely possible Valladares and Rodriguez will suffer the harm they describe. But their fears coming true would not be immediate and certain, but would be contingent on a series of events—their actually having interaction with the police, the police actually demanding and their providing information about somebody’s immigration status, and the police acting on that information, or the police engaging in racial profiling and unlawfully detaining them. If the order issuing the writ of mandate were affirmed on appeal, those contingencies might not happen until far in the future—or they might not happen at all. The potential harm Valladares and Rodriguez face is “merely a consequence of the judgment” rather than “a result of the legal operation of the judgement itself.” (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1043.)

The remaining two Community Appellants—LACU and Oak View—are associations that advocate on behalf of their members. LACU’s and Oak View’s ideological support of the CVA and opposition to the City’s lawsuit do not alone confer standing. “[N]otwithstanding an advocacy group’s strong political or ideological support of a statute or ordinance—and its disagreement with those who question or challenge the validity of the legislation—such a disagreement does not in itself afford the group the right to intervene formally in an action challenging the validity of the measure.” (In re Marriage Cases (2008) 43 Cal.4th 757, 790, citing Socialist Workers etc. Committee v. Brown (1975) 53 Cal.App.3d 879, 891 892.)

The Community Appellants argue In re Marriage Cases and Socialist Workers etc. Committee v. Brown are inapplicable because they address trial court intervention and not standing to appeal. However, the Community Appellants’ ability to appear in this litigation is based on nonstatutory intervention recognized by Carleson and attained by filing a motion for a new trial. “The standing of a party to move to intervene by a motion to vacate is at least comparable to the standing of a party to bring a statutory motion to intervene as a matter of right.” (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 16, italics added.) A group’s ideological support for or opposition to a measure does not itself create a right to formal statutory intervention and, therefore, should not afford the right to comparable nonstatutory intervention and standing to appeal.

Further, the principle that an advocacy group’s ideological support for or opposition to a particular measure does not confer appellate standing is consistent with the requirements imposed by Code of Civil Procedure section 902. Appellate standing requires a party to be aggrieved—that is, its rights or interests are injuriously affected by the judgment. (Carleson, supra, 5 Cal.3d at p. 737.) Someone who for political or ideological reasons supports or opposes particular legislation or litigation does not for that reason alone have a right or interest that is injuriously affected and is in no different situation from any member of the public sharing the same views.

There are situations in which individual persons, for political or ideological reasons, may appear as parties in litigation over the validity of a law or regulation. For instance, the official proponents of an initiative measure may intervene in a judicial proceeding challenging the validity of the initiative and defend its constitutionality if the public official charged with that duty fails to do so. (Perry v. Brown (2011) 52 Cal.4th 1116, 1124 1126.) “[B]ecause the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter approved initiative measure in order . . . to enable such proponents to assert the people’s and hence the state’s, interest in defending the validity of the initiative measure.” (Id. at p. 1125.)

As explained in Perry v. Brown, there is also the “‘public interest’” exception in mandate actions, under which private citizens may bring a mandate action to enforce a public duty involving the protection of a public right. (Perry v. Brown, supra, 52 Cal.4th at p. 1160.) There is also the private attorney general doctrine, by which private persons may act in support of the public interest by bringing lawsuits to enforce state statutes or constitutional provisions when enforcement by public officials might be unsatisfactory. (Ibid.)

The CVA is not an initiative measure, and the Community Appellants are not its official proponents. The Attorney General is vigorously and effectively prosecuting the appeal and defending the CVA. The Community Appellants are not invoking the public interest exception or the private attorney general doctrine.

That is not to say an association can never have standing to appeal. It has long been recognized an association has standing to sue on behalf of its members if it can demonstrate its members would have standing to sue in their own right. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361.) In Carleson, supra, 5 Cal.3d at pages 736-738, the California Supreme Court held the association that had brought the motion to vacate the judgment had standing to appeal. Carleson arose out of regulations promulgated and issued by the California Department of Social Welfare (the Department) that had the effect of expanding eligibility for welfare grants under the Aid to Families with Dependent Children (AFDC) program. (Id. at pp. 734, 738.) Several counties filed a lawsuit against the director of the Department to enjoin implementation of the regulations. (Id. at p. 734.) The California Welfare Rights Organization (CWRO) and three individual welfare recipients sought to intervene in an action. (Id. at p. 735.) The CWRO was an unincorporated association and alleged it “‘initiates litigation on behalf of its members and all welfare recipients in the State of California.’” (Id. at p. 735, fn. 2.) The trial court denied intervention. (Id. at p. 735.) The trial court rendered a judgment invalidating some of the regulations and issued a peremptory writ of mandate. (Ibid.) The CWRO filed a motion to vacate the judgment. (Ibid.) After the trial court denied the motion the CWRO filed a notice of appeal. (Ibid.) The director of the department did not appeal. (Ibid.)

The California Supreme Court concluded the CWRO was an aggrieved party with standing to appeal because the judgment “ha[d] the effect of terminating AFDC grants to welfare recipients such as the individual applicant interveners and others represented by the CWRO.” (Carleson, supra, 5 Cal.3d at p. 737.) The judgment was an initial and essential step in the process that would result in the termination of benefits. “Accordingly, it seems without question that CWRO and its members were legally ‘aggrieved’ by the Alameda judgment, which had an immediate, pecuniary and substantial effect upon their right to AFDC benefits.” (Ibid., fn. omitted.)

This case is distinct from Carleson in two significant ways. The first distinction is in the nature of the organizations. The CWRO was an organization made up of welfare recipients and which initiated litigation on behalf of welfare recipients throughout the state. (Carleson, supra, 5 Cal.3d at p. 735, fn. 2.) The Supreme Court noted it had in a different opinion “impliedly acknowledged CWRO’s standing to litigate on behalf of welfare recipients questions concerning California’s compliance with the Social Security Act.” (Id. at p. 737, fn. 6.) In contrast, LACU and Oak View are not narrowly limited to persons who are likely to benefit the most from the CVA. LACU and Oak View do not limit their advocacy to immigrants’ rights issues. LACU is a broad based association of people with “strong ties” to Los Alamitos, and Oak View is an association of people living in the Oak View neighborhood of Huntington Beach. Other than that, little information is given about the membership composition of LACU and Oak View except that neither has a membership limited to immigrants, noncitizens, or persons identifying themselves as Hispanic or Latino. Thus, it cannot be said of LACU and Oak View that their members necessarily would have standing to sue in their own right.

The second distinction has to do with the degree and probability of injury to the interests of the organizations’ membership. CWRO not only was comprised of welfare recipients, but the judgment, which invalidated new regulations, had the immediate effect of terminating benefits of its members. Thus the injury to the members’ interests was immediate, certain, and substantial; that is, the injury to the interests of CWRO’s members was the result of the legal operation of the judgment itself. In contrast, the potential consequences of the judgment in this case are not certain to have an immediate effect on any member of LACU or Oak View. There are contingencies that must occur before the judgment here might have an effect on some of the members of LACU and Oak View. Those contingencies might not occur for a long time or at all. While we do not mean to belittle such potential injuries, they are not immediate or certain, as were the injuries conferring appellate standing on the CWRO in Carleson.

Citing California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1 (Rank), the Community Appellants argue “intended beneficiaries of a law or regulation are ‘aggrieved’ by a judgment enjoining the operation of that law or regulation.” The issue in Rank was whether regulations prohibiting hospitals from permitting psychologists to take primary responsibility for the diagnosis and treatment of patients was valid. (Id. at p. 6.) The trial court granted the plaintiff’s motion for summary judgment and declared the regulations invalid. (Id. at p. 7.) After the defendant announced it would not appeal the trial court’s decision, the California Psychiatric Association (the CPA) and others moved to vacate the judgment and, when the motion was denied, appealed. (Id. at p. 8.) The Supreme Court concluded the CPA was sufficiently aggrieved to have standing to appeal because the judgment “diminishes the sphere of responsibility of physicians, particularly psychiatrists, vis à vis clinical psychologists, and thus can be expected to affect the authority and income of the physicians.” (Id. at p. 10.) The judgment, by allowing psychologists to take primary responsibility for diagnosis and treatment of patients, would take business away from psychiatrists, who would lose income.

The present case does not stand in as stark a contrast with Rank as it does with Carleson. But the contrast is significant. The CPA is a trade organization whose members would lose money and authority as a direct and immediate result of the judgment. LACU and Oak View are broad based community organizations some of whose members might at some time in the future suffer injury as a consequence of the writ of mandate, depending on a number of contingencies. The potential for future injury as a consequence of the judgment is not enough to confer standing. In Rank, as in Carleson, the defendant with appellate standing decided not to appeal the adverse judgment. Here, the Attorney General is vigorously pursuing the appeal.

Rank says nothing about intended beneficiaries of a law or regulation having standing to appeal. The degree to which a party benefits or suffers harm by a particular law might have some bearing on whether the party is aggrieved by a judgment. But the term “intended beneficiary” does not appear in cases addressing appellate standing. Indeed, the notion that certain members of LACU and Oak View are the intended beneficiaries of the CVA undercuts the claim it addresses matters of statewide concern. Because, as we conclude in the companion case, the CVA addresses statewide concerns, among others, of public health and safety, effective policing, and protection of constitutional rights, the intended beneficiaries of the CVA are all the residents of the State of California. Some might receive more benefit than others, but the legislative intent must have been to benefit all.

The Community Appellants argue LACU, Pullen, and Josefsberg have appellate standing in this case because in the Los Alamitos Lawsuit they are challenging the Los Alamitos ordinance purporting to exempt that city from the CVA. An exception to the rule that only a party of record has standing to appeal is when the nonparty would be bound by res judicata. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) The Community Appellants do not contend a judgment in this case would be binding on them in the Los Alamitos Lawsuit under principles of res judicata. Prosecuting the Los Alamitos Lawsuit does not confer appellate standing on the Community Appellants in this case. Indeed, the fact the Community Appellants are prosecuting the Los Alamitos Lawsuit emphasizes they do not need to be parties to this appeal to assert their rights and have their arguments heard. The Community Appellants could have presented their views in the Attorney General’s appeal by seeking leave to appear as amici curiae, but they did not do so.

Finally, the Community Appellants ask that we construe their appeal as a petition for writ of mandate if we are inclined to grant the City’s motion to dismiss. We have discretion to treat an improper appeal as a petition for a writ of mandate in unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 400 401.) One such circumstance is when the order appealed from is either nonappealable or its appealability is not clear. (Ibid.; see Shrewsbury Management, Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221 1222; Hall v. Superior Court (2016) 3 Cal.App.5th 792, 807 808; SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 748 750; City of Los Angeles v. Superior Court (2015) 234 Cal.App.4th 275, 280 281; In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 404.) The writ of mandate issued in this case is, without question, appealable as a final judgment. (E.g., Public Defenders’ Organization v. County of Riverside, supra, 106 Cal.App.4th at p. 1409.)

We conclude none of the Community Appellants is aggrieved by the writ of mandate and judgment within the meaning of Code of Civil Procedure section 902. Aggrieved for purposes of appellate standing is a legal term, and we emphasize we do not use the word aggrieved in its vernacular sense. We understand very well the Community Appellants feel aggrieved by the judgment in this case in the sense they believe it is wrong or unjust and may lead to undesirable consequences to themselves or others. The only issue we resolve is whether the Community Appellants are aggrieved for purposes of standing to appeal.

 

DISPOSITION

The motion to dismiss is granted and the appeal is dismissed. In the interest of justice, no party may recover costs on appeal.

FYBEL, ACTING P. J.

WE CONCUR:

IKOLA, J.

GOETHALS, J.