Opinion
B310857
08-04-2023
ELIZABETH CASTILLO, et al. Plaintiffs and Respondents, v. LONG BEACH MEMORIAL MEDICAL CENTER, Defendant and Respondent. TAMI KIM ALAN, Objector and Appellant
Law Offices of John A. Schlaff and John A. Schlaff, for Objector and Appellant. Janelle Carney, Law Office of Joseph Antonelli and Joseph Antonelli, for Plaintiffs and Respondents. Jeffer, Mangels, Butler & Mitchell, Travis M. Gemoets, Marta M. Fernandez, Raef Cogan; Buchalter and Robert M. Dato, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. BC576936, Daniel J. Buckley, Judge. Dismissed.
Law Offices of John A. Schlaff and John A. Schlaff, for Objector and Appellant.
Janelle Carney, Law Office of Joseph Antonelli and Joseph Antonelli, for Plaintiffs and Respondents.
Jeffer, Mangels, Butler & Mitchell, Travis M. Gemoets, Marta M. Fernandez, Raef Cogan; Buchalter and Robert M. Dato, for Defendant and Respondent.
MORI, Acting P. J.
Tami Kim Alan, an unnamed class member in this class action lawsuit, purports to appeal from a final order approving class settlement between the named class plaintiffs Elizabeth Castillo, Chris Marker, Regina Buccella, and Kham Chang (class plaintiffs), and defendant Long Beach Memorial Medical Center (Long Beach Memorial), and overruling Alan's ex parte objection to class settlement. Class plaintiffs move to dismiss Alan's appeal. (See Cal.Rules of Court, rule 8.54(a).) We agree with class plaintiffs that Alan lacks standing to appeal in this matter. To the extent Alan has appealed from an appealable order, we also find her appeal to be untimely. We dismiss.
Subsequent references to rules are to the California Rules of Court.
BACKGROUND
Alan filed a lawsuit, classified as a "Workplace Harassment" matter in the Los Angeles Superior Court, against Long Beach Memorial on January 28, 2011. Following settlement discussions, Alan's lawsuit was dismissed on September 24, 2014.
Class plaintiffs filed the original class action complaint in this lawsuit on March 26, 2015, asserting various wage and hour causes of action against Long Beach Memorial.
As provided in the final order approving class settlement, the operative complaint in this matter is the First Amended Consolidated Complaint. The operative complaint does not appear in the appellate record.
Years later, on August 13, 2019, Alan filed a new lawsuit against Long Beach Memorial, which was classified as a "Civil Rights/Discrimination" case. As of the date Alan designated the appellate record in this matter, her second lawsuit remained pending.
Following conditional certification and preliminary approval of a class-wide settlement agreement in this matter, on June 25, 2020, a third-party administrator mailed class settlement notices to Alan and other known class members. Alan's notice, which was mailed to the address provided by Long Beach Memorial and cross-verified through the National Change of Address Database, informed Alan that she could request an exclusion or object to class settlement no later than August 10, 2020. The notice mailed to Alan was not returned as undeliverable. Alan did not object by August 10, 2020, and instead, she mailed an opt-out letter with a signing date of September 20, 2020, and postmarked date of September 28, 2020. On October 7, 2020, Alan was notified that her opt-out letter was invalidated as untimely.
On December 14, 2020, Alan filed an ex parte application for an order giving effect to her opt-out letter "and/or to object to the settlement" as to her personally. In its written opposition, Long Beach Memorial confirmed Alan's mailing address and proof of mailing the opt-out notice.
On December 15, 2020, the trial court held a joint hearing on final approval of settlement and Alan's ex parte objection to class settlement. The court denied Alan's ex parte, finding in relevant part that "there's no doubt that there was an address on file for Ms. Alan and that's where the documentation regarding this settlement was sent. So it was reasonable for defendant to send to that address ...." The court granted final approval of settlement.
Following the joint hearing the same day, the court signed and filed an order granting final approval of settlement and overruling Alan's ex parte objection to class settlement. The final order repeated the court's rulings on both issues, approved the settlement, and released all claims alleged in the operative complaint. The final order also provided: "The Court hereby enters the concurrently filed Judgment in the Action as of the filing date of this Final Order, pursuant to the terms set forth in the Settlement Agreement," retaining jurisdiction over the interpretation and enforcement of the settlement agreement (Code Civ. Proc., § 664.6). It also provided: "The Settlement becomes effective under the terms of the Settlement Agreement with the signing of this order."
On December 18, 2020, class plaintiffs served Alan a notice of entry of the final order approving the class settlement and overruling her ex parte objection to class settlement. On January 13, 2021, the court signed and filed a judgment in conformity with the final order approving class settlement.
Alan's notice of appeal, filed February 22, 2021, provides that she appeals "from the judgment(s) and/or order(s) of dismissal in this matter, including without limitation those dated or entered on or about December 30, 2020, January 12, 2021 and/or January 13, 2021." The notice also states that Alan challenges "the ruling(s) and/or order(s) on or about December 15 and/or 18, 2020 denying [Alan's] application for relief, . . . and approving one or more settlements in these matters." Attached to Alan's civil case information are (1) a notice of entry of the January 13, 2021, judgment; and (2) the December 15, 2020, final order approving class settlement and overruling her ex parte objection.
DISCUSSION
Class plaintiffs move to dismiss this appeal on several jurisdictional grounds. We conclude that Alan lacks standing to appeal, and assuming she has appealed from an appealable order, we also conclude that her appeal is untimely. (See K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 881 [timely filing of a notice of appeal "'is an absolute prerequisite to the exercise of appellate jurisdiction'"]; Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 (Sabi) ["[a]n appeal may be taken only by a party who has standing to appeal"].)
Only a "party aggrieved may appeal" from an appealable judgment or order. (Code Civ. Proc., § 902.) This means that a litigant "'must be both a party of record to the action and aggrieved to have standing to appeal.' [Citations.]" (Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, 970; accord, County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 (Carleson) ["[i]t is generally held . . . that only parties of record may appeal"].) Unnamed parties to a class action lawsuit "may be considered 'parties' for the limited purpose of discovery, but those same unnamed parties are not considered 'parties' to the litigation." (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 266 (Hernandez).) To become a named party to class action litigation, an unnamed class member must file a timely complaint in intervention (Code Civ. Proc., § 387) before final judgment, or file an appealable motion to set aside and/or vacate the class judgment (id., § 663). (Id. at p. 267; accord, Carleson, supra, at p. 736.) Courts may not grant party status to any objector even if their name and interests in the action "were included in an exhibit to the complaint, and their attorney had appeared at the hearing on petition for payment of attorney fees to object ...." (Hernandez, supra, at p. 269.)
Here, it is undisputed that Alan, an unnamed class member, did not seek to intervene prior to filing her notice of appeal. As such, she lacks standing to appeal the judgment or underlying orders in this matter. (Hernandez, supra, 4 Cal.5th at pp. 266, 269.)
Urging us to conclude otherwise, Alan argues in opposition to the motion to dismiss that she intends to file a post-appeal motion to intervene. In support, she relies on a declaration signed by her appellate counsel on October 14, 2021. The declaration provides: "Appellant has prepared for filing a motion for leave to file a complaint in intervention in the trial court and, in the alternative, striking the [ ] Judgment as void with respect to Appellant which [counsel] anticipate[s] filing within the next several hours. We will provide the Court with a conformed copy of the same following our receipt of confirmation of its e-filing."
Despite making these assurances and having ample time to provide this court with a copy of a trial court motion, Alan has furnished us none. "Appellate review is generally limited to matters contained in the record. Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.) "'Statements of alleged fact in the briefs on appeal which are not contained in the record and were never called to the attention of the trial court will be disregarded by this court on appeal.' [Citations.]" (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Thus, we may not consider the expressed and unexecuted intent of Alan's appellate counsel. (Estate of Locknane (1962) 208 Cal.App.2d 505, 509 [appellants may not offer "testimony before the appellate court"].)
In fact, Alan asserts in her appellate briefs that while she had "anticipated seeking to intervene in the [class action], given the jurisdictional issues . . ., [Alan's] counsel decided that a motion to intervene might be argued to constitute consent to the [trial court's] jurisdiction in this matter and [Alan] most certainly does not intend to give legs to such an argument. [Alan] has scheduled a motion to vacate the judgment in the [trial court] which [it] has authority to hear, notwithstanding the pendency of this appeal."
Even if Alan has filed a motion seeking to intervene or vacate the judgment after filing of her notice of appeal (see fn. 3, ante), she has provided no authority that would permit the filing of a post-appeal trial court motion to confer standing to appeal, and no authority permitting appellate review of such a post-appeal trial court motion. This type of post-hoc maneuvering conflicts with the long-standing "rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.]" (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics added.) "This rule preserves an orderly system of appellate procedure by preventing litigants from circumventing the normal sequence of litigation." (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) We will not consider any document filed after rendition of judgment or any statements in the briefs based on "such improper matter." (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882.)
Assuming without deciding the appealability of the order denying her ex parte objection to class settlement (see Code Civ. Proc., § 904.1), we also conclude that Alan's appeal is untimely. Subject to exceptions not applicable here, Alan was required to file her notice of appeal on or before the earliest of 180 days after entry of judgment or appealable order, or 60 days after the superior court clerk or party served on her a notice of entry of judgment or appealable order. (Cal. Rules of Court, rule 8.104(a)(1).) "It is the initial mailing or service of a triggering document that commences the running of the time to appeal. The time to file a notice of appeal is not reset or extended by a second or subsequent notice of entry of the same judgment." (InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1135.)
As her appellate briefs make clear, the operative order from which Alan took this appeal was the final order approving class settlement and denying Alan's ex parte objection to class settlement. That order, which left no issue remaining to be determined as to Alan, was final for purposes of her appeal. (See In re Baycol Cases I &II (2011) 51 Cal.4th 751, 759 [discussing the "original settled rule" requiring an appeal from an order that disposes of a collateral party's claims].) Alan was served with notice of entry of that order on December 18, 2020. The deadline for her to file a notice of appeal was February 16, 2022; she did not file her notice until February 22, 2021. Thus, Alan's appeal is untimely and must be dismissed. (Rule 8.104(b).)
The first sentence in Alan's opening brief affirms that "this appeal" arises out of the "December of 2020 . . . rul[ing] that [Alan] was bound to a class settlement . . . due to [Alan's] purported failure to timely 'opt-out' of the" class action.
DISPOSITION
The appeal is dismissed. (Rule 8.54(b)(1).) Costs on appeal are awarded to respondents.
We concur: ZUKIN, J. ASHMANN-GERST, J. [*]
[*] Justice of the Court of Appeal, Second Appellate District, Division Two, assigned to Division Four, by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.