Opinion
D069748
02-15-2017
BERNIE PAPROCK et al., Plaintiffs and Respondents, v. FIRST TRANSIT, INC., Defendant and Respondent. ERIC P. CLARKE, Movant and Appellant.
Law Offices of Mark Yablonovich and Mark Yablonovich for Movant and Appellant. Law Offices of Martin N. Buchanan, Martin N. Buchanan; Huffman & Kostas, James C. Kostas; Law Offices of Sheldon A. Ostroff and Sheldon A. Ostroff for Plaintiffs and Respondents. Littler Mendelson, Theodore R. Scott and David J. Dow for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2010-00055583-CU-OE-NC) APPEAL from a postjudgment order of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed. Law Offices of Mark Yablonovich and Mark Yablonovich for Movant and Appellant. Law Offices of Martin N. Buchanan, Martin N. Buchanan; Huffman & Kostas, James C. Kostas; Law Offices of Sheldon A. Ostroff and Sheldon A. Ostroff for Plaintiffs and Respondents. Littler Mendelson, Theodore R. Scott and David J. Dow for Defendant and Respondent.
This is the second time nonparty Eric P. Clark has sought appellate review of proceedings in the underlying wage and hour class action in which the plaintiff employee class and the defendant employer are both respondents here. Clarke appeals from a postjudgment order of the superior court in which he unsuccessfully tried to vacate the judgment of the trial court giving final approval of a proposed settlement between the class and the employer. Throughout these trial and appellate court proceedings, Clarke was opposed by (1) plaintiffs Bernie Paprock, Teah Nelson, Pamela Hastings and Mancha Overstreet (Plaintiffs) on behalf of themselves and all other similarly situated current and former paratransit drivers and fixed-route drivers employed by First Transit, Inc., and (2) defendant First Transit, Inc. (First Transit).
In a 2015 opinion, we reversed the trial court's order dismissing (without ruling on) Clarke's October 2013 motion to vacate the judgment of the superior court and remanded the case with instructions for the trial court to rule on the issues raised in Clarke's motion. (Paprock v. First Transit, Inc. (May 18, 2015, as modified on denial of rehearing on June 12, 2015, D064697) [nonpub. opn.] (Paprock I).) Following remand, Clarke filed a new motion to vacate and set aside the judgment — again brought on both statutory and equitable bases. The trial court denied both motions on various independent grounds, and Clarke appealed from the postjudgment order.
As we will explain, the trial court did not err in applying the doctrine of the law of the case — the case being Paprock I, supra, D064697 — to deny Clarke's motions. Alternatively, even if we were to assume that the law of the case doctrine did not preclude the claims in Clarke's motions, Clarke is still not entitled to relief: The statutory motions were denied by operation of law, and Clarke did not prove extrinsic fraud in the equitable motions. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Clarke and Plaintiffs both incorporate by reference their respective appendices in the record in Paprock I, supra, D064697. (Cal. Rules of Court, rule 8.124(b)(2).) Because we will be relying on other portions of our file in Paprock I, supra, D064697, on our motion we take judicial notice of the entire file. (Epic Communications, Inc. v. Richwave Technology, Inc. (2015) 237 Cal.App.4th 1342, 1347, fn. 3.)
A. The Class Action Underlying This Appeal - Paprock Class Action
We state the facts in the light most favorable to the order on appeal. (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.) The factual recitation and much of the procedural recitation are based on, and taken in significant part from, our opinion in Paprock I, supra, D064697.
In May 2010, Plaintiffs filed a wage and hour class action complaint against First Transit, asserting three causes of action based on alleged violations of the Labor Code, including failures to provide required meal and rest breaks and to pay wages. (Paprock v. First Transit Inc. (Super. Ct. San Diego County, 2010, No. 37-2010-55583-CU-OE-NC) (Paprock Class Action).) The complaint alleges that First Transit, a company that provides transportation services, employed Plaintiffs as "non-exempt" bus drivers who transported First Transit's customers. Plaintiffs alleged that they represented a class of "similarly situated former and current employees of First Transit" who "were employed in California[] and suffered damages as a result of First Transit's unlawful employment practices," as described in greater detail throughout the complaint.
After the completion of the bulk of the class discovery and just weeks before the court-ordered deadline by which Plaintiffs were required to file a class certification motion, in August 2011 Clarke filed an ex parte application for an order shortening time to hear a motion for Clarke to intervene and to have his attorneys appointed as lead counsel for the putative class in the Paprock Class Action. Plaintiffs and First Transit each filed a substantive opposition to intervention by Clarke. The court denied Clarke's ex parte application.
"An intervention takes place when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant, and is made by complaint, setting forth the grounds upon which the intervention rests . . . ." (Code Civ. Proc., § 387, subd. (a).)
In September 2011, Plaintiffs filed a motion to certify the class. While the motion was pending, Plaintiffs, First Transit and Clarke attended an unsuccessful mediation in late November 2011. At a hearing in December 2011, the court granted the class certification motion, and by written order filed in January 2012 the court certified three plaintiff subclasses of the class of "Paratransit bus drivers employed by First Transit, Inc. in California during the period May 26, 2006[,] to December 16, 2011," who were not provided certain rest breaks, certain meal breaks and certain wages for off-the-clock work as described in greater detail in the order. Over a year later, in February 2013, at a second mediation session, Plaintiffs and First Transit settled the action, subject to court approval.
At parts I.B. and I.C., post, we discuss other employment litigation that was then pending against First Transit. The parties in those cases also participated in the November 2011 mediation.
At the same mediation, First Transit also settled a different class action brought by a different class of employee drivers, which we discuss further at part I.C., post. Clarke was not allowed to participate in the February 2013 mediation.
Based on the settlement, in April 2013 the court granted Plaintiffs' motion for orders preliminarily certifying the proposed settlement class, preliminarily approving the settlement, authorizing the notice of settlement to the class and scheduling a hearing for determination of fairness and final approval of the settlement. As requested in Plaintiffs' motion (based on the parties' settlement agreement), the proposed settlement class was defined as: "[First Transit's] employees who were employed as Paratransit Drivers and Fixed-Route Drivers during the Class Period in California . . . ." (Italics added.)
In July 2013 — five months after the successful mediation, three months after the court's preliminary approval of the settlement, over six weeks after the settlement administrator mailed 8,114 notices to the members of the settlement class and seven weeks before the final fairness hearing — Clarke filed a second ex parte application to intervene. First Transit and Plaintiffs opposed the application. In part, their opposition included evidence that Clarke was employed by First Transit Transportation, LLC (not by First Transit), as a DASH bus driver (not as a paratransit driver or fixed-route driver). The court denied leave to intervene, ruling that Clarke was not a member of the certified class in the Paprock Class Action (Intervention Order). Clarke timely appealed from the Intervention Order.
Without a record reference, Clarke advises that " 'DASH is an acronym for "Downtown Area Short Hop" bus routes . . . .' "
Plaintiffs then noticed a motion to approve the settlement (and the attorney fees and costs for counsel and the incentive awards for Plaintiffs) and to enter a final judgment. No class member objected to the proposed settlement. Indeed, there was no opposition to the motion — except by Clarke, whom the court had previously ruled was not a class member. Granting Plaintiffs' request to strike Clarke's opposition to the motion, the court relied on the prior determination that Clarke was not a member of the class in the Paprock Class Action and ruled that Clarke's recent submissions did not qualify as a motion for reconsideration.
At the same hearing, the court granted Plaintiffs' substantive motion. By separate order filed in September 2013, the court approved the parties' written settlement agreement, class counsel and the claims administrator; redefined the settlement class consistent with the terms of the agreement; authorized payment of attorney fees, costs, incentive awards and claims administration compensation; and entered a final judgment under which the court retained jurisdiction for purposes of effectuating the settlement (Judgment). Clarke timely appealed from the Judgment.
The Judgment effected the settlement, which required First Transit to pay up to $11.5 million — with up to approximately $6.89 million potentially going to the employee class members.
Within weeks of initiation of the appeal from the Intervention Order and the filing of the Judgment, Clarke filed a motion to vacate and set aside the Judgment (October 2013 Motion) on the following statutory and equitable grounds, respectively: (1) the Judgment was " 'the product of incorrect or erroneous legal basis not consistent with or supported by the facts' " (Code Civ. Proc., § 663, subd. 1); and (2) extrinsic fraud with regard to the determination that Clarke was not a class member. More than 60 days after notice of entry of the Judgment (while the motion was pending, but before the date for hearing), Plaintiffs filed an ex parte application to "dismiss" Clarke's motion on the basis the court lacked jurisdiction to hear the motion according to Code of Civil Procedure section 663a, subdivision (b). At the hearing, the court granted the application and "dismissed forthwith" Clarke's October 2013 Motion and vacated its hearing date (Dismissal Order). Clarke timely appealed from the Dismissal Order.
"A judgment or decree, when based upon a decision by the court, . . . may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . ." (Code Civ. Proc., § 663.)
In Paprock I, supra, D064697, we considered and decided Clarke's appeals from the Intervention Order, the Judgment and the Dismissal Order, as follows: the Intervention Order was affirmed (because Clarke was not a member of the plaintiff class); the appeal from the Judgment was dismissed (because Clarke was not aggrieved by the Judgment); and the Dismissal Order was reversed (because the trial court did not have jurisdiction to enter the Dismissal Order) and the matter remanded with directions for the trial court "to address forthwith the issues raised in Clarke's [October 2013 Motion] and Plaintiffs' and First Transit's oppositions to the motion."
As we explain at part I.D., post, the present appeal is from an order that was filed following the proceedings on remand. Before we describe and address them, however, we will provide additional background from other employment litigation against First Transit that is necessary to an understanding of the Paprock I rulings as well as the issues and arguments raised by the parties in the present appeal. B. Clarke's Los Angeles Representative Action — Clarke PAGA Action
The Labor Code Private Attorneys General Act of 2004 (PAGA), Labor Code section 2698 et seq., authorizes "an aggrieved employee" to bring an action and recover civil penalties "on behalf of himself or herself and other current or former employees" (Lab. Code, § 2699, subd. (a)), thereby "allow[ing] a plaintiff employee to collect penalties not only for himself, but also for other current and former employees" (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 499). The representative action authorized by the PAGA is an enforcement action "designed to protect the public and penalize the employer for past illegal conduct. Restitution is not the primary object of a PAGA action, as it is in most class actions." (Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, 1300; see Arias v. Superior Court (2009) 46 Cal.4th 969, 986 [a PAGA action " 'is fundamentally a law enforcement action' " that "substitute[s] for an action brought by the government itself"].)
In January 2008, Clarke filed an action in Los Angeles Superior Court against First Transit, First Transit Transportation, LLC, and others, asserting Labor Code violations dealing with meal breaks, rest breaks, overtime, wage statements and payment of wages on termination claims for civil penalties pursuant to the PAGA. (Clark v. First Transit, Inc. (Super. Ct. L.A. County, No. BC384583) (Clarke PAGA Action).) Alleging that he was employed by all defendants, Clarke sought both civil penalties under the PAGA and actual damages on behalf of a defined group of employee drivers against the named defendants.
The Clarke PAGA Action was stayed in February 2009 and has remained stayed at least through January 2017. C. The Los Angeles Class Action — Alonzo Class Action
In March 2010, Angel Alonzo filed a class action complaint in Los Angeles Superior Court against First Transit (Alonzo v. First Transit, Inc. (Super. Ct. L.A. County, 2010, No. BC433932) (Alonzo Class Action)), alleging many of the same violations of the Labor Code asserted by Plaintiffs in the Paprock Class Action, including failures to provide required meal and rest breaks and to pay wages. Class counsel in the Alonzo Class Action described the plaintiff class as First Transit employees who worked as "Community DASH Package 2 and/or 6 bus drivers who claimed that they were not provided legally required meal and rest breaks."
Clarke was a member of the certified class in the Alonzo Class Action based on his employment by First Transit as a DASH bus driver in Los Angeles during the relevant time period. Clarke opted out of the class in the Alonzo Class Action. According to his attorney, Clarke opted out "to preserve his rights to seek PAGA penalties and for his own individual claims."
At the February 2013 mediation at which the Paprock Class Action was settled (see pt. I.A., ante), the parties also settled the Alonzo Class Action, subject to court approval. D. The Remanded Proceedings and the Present Appeal in the Paprock Class Action
The settlement agreement in the Alonzo Class Action required First Transit to pay up to $2 million, depending on certain contingencies.
Once jurisdiction over the Paprock Class Action revested in the superior court, Clarke never asked the court "to address forthwith the issues raised in Clarke's [October 2013 Motion] and Plaintiffs' and First Transit's oppositions to the motion," as directed in Paprock I, supra, D064697. Instead, seven weeks later, Clarke filed a new motion to vacate and set aside the Judgment (November 2015 Motion) on the same legal theories as in the October 2013 Motion.
Perhaps aware of the potential problems in filing a statutory motion in November 2015 (see pt. II.B.), Clarke did not mention Code of Civil Procedure section 663 in his November 2015 Motion or accompanying points and authorities. Nonetheless, in both the motion and the points and authorities, Clarke asserted that one or more decisions in the Judgment were premised on an incorrect or erroneous legal basis or were not consistent with or supported by the facts — using language identical to that found in both Code of Civil Procedure section 663, subdivision 1, and Clarke's October 2013 motion expressly brought under section 663, subdivision 1. Additionally, Clarke brought the November 2015 Motion "on the equitable grounds that [Plaintiffs and First Transit] committed extrinsic fraud against Clarke." As part of the motion, Clarke expressly set forth (and in his points and authorities he argued) that he "is an aggrieved party and entitled to bring this motion because he has an interest that is immediate, pecuniary, and substantial."
In this appeal, Plaintiffs suggest that Clarke "reformulated his previously asserted statutory grounds into a non-statutory claim of 'extrinsic fraud.' " To the contrary, in his reply brief, Clarke confirms that this portion of the November 2015 Motion "raised the same issues as [that portion of] his previous motion to vacate [based on Code of Civil Procedure section 663, subdivision 1]." (Italics added.)
Under both theories, Clarke explained that he sought to vacate the Judgment based on five specific errors that he contends the court made in the Judgment. Because we will conclude that Clarke did not meet his burden of establishing entitlement to relief on grounds unrelated to any rulings in the Judgment, we will not reach — and thus need not describe or discuss — the alleged errors in the Judgment.
Plaintiffs and First Transit submitted written opposition. Initially, they challenged Clarke's standing to bring the November 2015 Motion. They argued — in part based on our ruling in Paprock I, supra, D064697 — that Clarke was not aggrieved, because he did not have an immediate, pecuniary and substantial interest in the Judgment.
On December 3, 2015, the parties presented oral argument, and at the end of the hearing the court denied Clarke's motion in its entirety. On December 7, 2015, the trial court filed a written order denying the October 2013 Motion (that was the subject of our remand in Paprock I, supra, D064697) on six alternative grounds. The order also denied the November 2015 Motion based on the same six, plus two additional, alternative grounds. We will discuss some of these reasons, as necessary to our decision, at part II., post.
From the reporter's transcript, we cannot tell whether the court orally denied the October 2013 Motion, the November 2015 Motion or both.
Clarke timely appealed from the December 7, 2015 order.
II.
DISCUSSION
We presume the December 7, 2015 order is correct, and Clarke (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Clarke has not met his burden here.
On appeal, Clarke argues that the trial court erred in denying both his "statutory motion" and his "equitable motion." Consistent with his counsel's presentation at the oral argument in the trial court, on appeal Clarke often does not differentiate between the October 2013 Motion that was the subject of our remand order in Paprock I, supra, D064697, and the November 2015 Motion.
Before we discuss Clarke's motions, however, we will first deal with the legitimate concern of Plaintiffs and First Transit regarding the potentially preclusive effect of our rulings in Paprock I, supra, D064697, on the present appeal. More specifically, Plaintiffs and First Transit contend that the law of the case established in Paprock I, supra, D064697 — namely, that Clarke was not aggrieved by the Judgment, and the Judgment will have no preclusive effect on the claims in the Clarke PAGA Action — necessarily leads to the conclusion that Clarke lacked standing both to bring the motions to vacate the Judgment and to appeal from the denial of the motions. As we explain at part II.A., post, given our rulings in Paprock I and the current record, the trial court did not err in applying the law of the case doctrine to deny Clarke's motions.
Alternatively, even if we were to assume that the law of the case doctrine did not preclude the claims in Clarke's motions and that Clarke was aggrieved by the Judgment and had standing to bring both motions and to appeal from the order denying the motions, Clarke is still not entitled to relief. As we explain at part II.B., post, the trial court properly denied the statutory claims, because each was denied by operation of law when it was not decided within 60 days of the filing of Clarke's initial notice of the October 2013 Motion. (Code Civ. Proc., 663a, subd. (b).) As we explain at part II.C., post, the trial court properly denied the equitable claims, because in each Clarke did not meet his burden of establishing extrinsic fraud. A. The Trial Court Did Not Err in Applying the Law of the Case Doctrine to Deny Clarke's Motions
The law of the case doctrine provides that any principle or rule of law stated in a final appellate court opinion that is " 'necessary' " to the appellate decision must be followed in all subsequent proceedings in the action, whether in the trial court or a later appeal. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 (Morohoshi); 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 459, p. 515.) Under this doctrine, "the case may not go over ground that has been covered before in an appellate court." (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1506.) The primary purpose of the law of the case doctrine is to conserve judicial resources by affording finality to initial appellate rulings in order to prevent relitigation on remand of issues already decided. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435; Sargon Enterprises, at p. 1505.) Although the application of the law of the case doctrine at times may be "harsh" (Morohoshi, at p. 491), there is nothing harsh in its application here.
Paprock I, supra, D064697, held in relevant part that Clarke was "not aggrieved by the Judgment" and "the Judgment will have no preclusive effect on the claims in the Clarke PAGA Action." In so holding, we necessarily ruled that Clarke was "neither a named party, in privity with a named party nor a member of the certified class" in the Paprock Class Action.
Clarke responds by arguing that, despite our rulings, he is nonetheless aggrieved by the Judgment here, "because he is in privity with the State for PAGA purposes" in the Paprock Class Action. According to Clarke, he had standing to move to vacate the Judgment, since it will have a preclusive effect on "his earlier filed claims [in the Clarke PAGA Action] for the same PAGA penalties on behalf of any aggrieved employees who fall within the Paprock Class." We disagree. We reject Clarke's invitation that we consider in this appeal whether — and, if so, the effect of whether — Clarke is in privity with the State of California for purposes of asserting the PAGA claims on behalf of First Transit employees in the Paprock Class Action.
We expressly disapprove of Clarke's citation to and reliance on the Second District's unpublished opinion in Alonzo v. First Transit, Inc., B253699 (Oct. 15, 2015) in his effort to avoid the application of the law of the case from Paprock I, supra, D064697. California Rules of Court, rule 8.1115(a) precludes the citation to or reliance on unpublished opinions of a Court of Appeal, except as provided in subdivision (b). With no explanation or analysis, Clarke cites rule 8.1115(b)(1); and on at least three occasions in the briefing and twice at oral argument, Clarke tells us only that Alonzo " 'is relevant under the doctrines of law of the case, res judicata, and collateral estoppel.' " It is not, and Clarke does not attempt to suggest why it does. Accordingly, given the notice we provided in our order filed April 21, 2016 (that we would strictly enforce rule 8.1115 in deciding this appeal), we have disregarded all references to Alonzo in both of Clarke's briefs and at oral argument.
Clarke is precluded from raising this argument in this appeal because he failed to raise it first in the trial court — in either the October 2013 Motion or the November 2015 Motion. (Dowling v. Farmers Ins. Exchange (2012) 208 Cal.App.4th 685, 696 ["We generally will not consider an argument asserted for the first time on appeal."].)
Clarke is further precluded from raising this argument in this appeal because he failed to raise it in Paprock I, supra, D064697. "Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court. 'It would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.' " (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 312 (Yu).) We recognize, as Clarke argues, that the law of the case doctrine does not apply to points of law that might have been, but were not, decided in the first appeal. (See Nally v. Grace Community Church (1988) 47 Cal.3d 278, 302.) Here, however, the relevant point of law that was decided in the first appeal is that the Judgment will not have a preclusive effect on the claims in the Clarke PAGA Action (Paprock I, supra, D064697); whether Clarke is in privity with the State is merely one additional argument in support of that already-decided point of law. As such, the law of the case doctrine precludes consideration — whether by the trial court (had Clarke raised the argument there) or now on appeal — of this new argument that Clarke failed to raise in his opening brief in the first appeal. (Yu, at p. 312.)
For these reasons, the trial court did not err in applying the law of the case doctrine to conclude that, because Clarke is not aggrieved by the Judgment, he lacked standing to vacate the Judgment as requested in the October 2013 Motion and the November 2015 Motion. Accordingly, Clarke did not meet his burden of establishing that the trial court erred in denying the motions based on the law of the case doctrine. This is a sufficient basis on which to affirm the order on appeal.
In any event, even if we were to assume that Clarke was aggrieved by the Judgment and, thus, had standing to bring both the October 2013 Motion and the November 2015 Motion — i.e., even without consideration of the law of the case doctrine — Clarke has not established reversible error. B. The Trial Court Properly Denied Clarke's Statutory Motions to Vacate the Judgment
Clarke's statutory motions to vacate the Judgment were premised on Code of Civil Procedure section 663, subdivision 1, which allows a trial court to set aside and vacate a judgment and enter another judgment upon a sufficient showing of an "[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts."
However, as applicable here, "the power of the court to rule on a motion to set aside and vacate a judgment shall expire . . . 60 days after filing of the first notice of intention to move to set aside and vacate the judgment. If that motion is not determined within the 60-day period, or within that period, as extended, the effect shall be a denial of the motion without further order of the court." (Code Civ. Proc., § 663a, subd. (b), italics added.) This 60-day deadline is mandatory, jurisdictional, and not subject to extension, except when the 60th day falls on a holiday — in which event, the deadline is extended until the next court day under Code of Civil Procedure section 12a. (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 478-480 (Garibotti).) If the trial court fails to rule within the 60-day period, the motion is "denied by operation of law." (Id. at p. 477.)
For the October 2013 Motion — which included the first notice of a motion to set aside and vacate the Judgment — Clarke served his notice and motion on October 1, 2013. This began the 60-day jurisdictional limitation for all statutory motions to vacate the Judgment. (Code Civ. Proc., § 663a, subd. (b); see Garibotti, supra, 243 Cal.App.4th at p. 477.) On November 13, 2013, 43 days later, Clarke appealed from the Judgment. As of that date, the trial court's jurisdiction to hear the October 2013 motion was suspended (Paprock I, supra, D064697, quoting from Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189), leaving 17 days for the court to rule on all statutory motions to vacate the Judgment once jurisdiction revested in the superior court (60 - 43 = 17 days). The transfer (i.e., return) of jurisdiction to the superior court was effected upon issuance of the remittitur in Paprock I, supra, D064697 (Snukal v. Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5) — which occurred on September 15, 2015. Thus, "the power of the court to rule on" any and all statutory motions to vacate the Judgment "expire[d]" on October 2, 2015 (Sept. 15 + 17 days = Oct. 2). (Code Civ. Proc., § 663a, subd. (b).)
Code of Civil Procedure section 663a, subdivision (b) actually provides that the power of the court to rule on such a motion expires on the earlier of 60 days after either service of notice of entry of judgment or the filing of the first notice of intent to move to set aside the judgment. Since the record on appeal does not contain a copy of the proof of service for the notice of entry of the Judgment, we will assume that the court retained the jurisdiction to rule on the motion until the latest possible date — i.e., 60 days after the filing of Clarke's notice of and motion to vacate the Judgment.
We take judicial notice of the fact that October 2, 2015, was a Friday. (Hiner v. Olson (1937) 23 Cal.App.2d 227, 235 ["A court will take judicial notice of the day of the week from the date as shown by the calendar."]; Evid. Code, §§ 452, subd. (h), 459, subd. (a).) Accordingly, the extension of time provided for in Code of Civil Procedure section 12a, subdivision (a) is inapplicable. (See Garibotti, supra, 243 Cal.App.4th at p. 480.)
Clarke did not obtain a ruling by October 2, 2015, on that portion of either the October 2013 Motion or the November 2015 Motion based on Code of Civil Procedure section 663, subdivision 1. Thus, that portion of each motion was "denied by operation of law," and any other ruling would be "beyond the court's jurisdiction and void." (Garibotti, supra, 243 Cal.App.4th at pp. 477, 474.)
Clarke contends that our directions in the remand of Paprock I, supra, D064697 somehow extended or vacated the 60-day jurisdictional deadline of Code of Civil Procedure section 663a, subdivision (b). Such a suggestion is frivolous. Not only did the remand instructions not extend or vacate any deadlines, such an attempt would have been ineffective, since courts "lack[] authority to extend section 663a, subdivision (b)'s time limit for ruling on a motion to vacate judgment." (Garibotti, supra, 243 Cal.App.4th at p. 480.) C. The Trial Court Did Not Err in Denying Clarke's Equitable Motions to Vacate the Judgment
Once again, in reversing the trial court's order dismissing Clarke's October 2013 Motion, we instructed: "[T]he matter is remanded to the trial court with directions to address forthwith the issues raised in Clarke's [October 2013 Motion] and Plaintiffs' and First Transit's oppositions to the motion." (Paprock I, supra, D064697.)
Clarke's equitable motions to vacate the Judgment based on extrinsic fraud were premised on opposing counsel's conduct that allegedly affected Clarke's participation in the trial court's proceedings related to Clarke's attempts to intervene and to oppose entry of the Judgment. However, as we explain, the trial court considered Clarke's evidence and arguments and denied the motions in part based on the express finding that Clarke did not prove extrinsic fraud.
In addition to statutory authorization to vacate a judgment (e.g., Code Civ. Proc., §§ 473, subd. (b), 663), the superior court also has the inherent power in equity to set aside a judgment based on extrinsic fraud. (Olivera v. Grace (1942) 19 Cal.2d 570, 575; In re Marriage of Damico (1994) 7 Cal.4th 673, 688 (Damico).) In this context, " '[extrinsic] fraud is a broad concept that "[tends] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing." ' " (Estate of Sanders (1985) 40 Cal.3d 607, 614 (Sanders).) An equitable motion to vacate a judgment based on extrinsic fraud may be brought at any time. (Damico, at p. 688.)
We may reverse a trial court's order denying an equitable motion to vacate a judgment only "where there is a clear showing of abuse of discretion and a manifest miscarriage of justice." (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283.) The test for an abuse of discretion in such appellate review is " 'whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " (Ibid.) Because " '[t]he scope of discretion always resides in the particular law being applied,' " we consider "whether, given the established evidence," the trial court's ruling "falls within the permissible range of options set by the legal criteria." (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831; accord, Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 932 [no abuse of discretion where the ruling " ' "falls within the permissible range of options set by the legal criteria" ' "].)
To warrant equitable relief in vacating a judgment due to extrinsic fraud, a moving party like Clarke must establish: (1) the facts constituting the extrinsic fraud; (2) a substantial substantive position on the merits; and (3) diligence in seeking relief from the adverse judgment. (Damico, supra, 7 Cal.4th at p. 688.) One common example of extrinsic fraud that will support a motion to vacate the judgment is a case "in which the aggrieved party is kept in ignorance of the proceeding or is in some other way induced not to appear." (Sanders, supra, 40 Cal.3d at p. 614.) That is because, in such a situation — as Clarke alleges here — "the [aggrieved] party is 'fraudulently prevented from presenting his claim.' " (Ibid.; accord Department of Industrial Relations v. Davis Moreno Const., Inc. (2011) 193 Cal.App.4th 560, 570 [" 'The essence of extrinsic fraud is one party's preventing the other from having his day in court.' "].) In his opening brief, Clarke contends that "there was extrinsic fraud in this case because the conduct of counsel prevented Clarke from being heard on the fundamental questions of whether the court had authority to grant PAGA penalties, whether the settlement of PAGA penalties was fair and reasonable, and whether Clarke would be aggrieved by the [J]udgment."
According to Clarke, the "[e]vidence of collusion in this case includes the following: (1) Plaintiffs agreed to settle PAGA claims, that were never part of their action and which Clarke was separately pursuing in his earlier filed action, for a nominal amount; (2) Clarke's counsel was, at the insistence of Plaintiffs' counsel, excluded from participating in the 'global' mediation; (3) Clarke did not receive notice of the proposed settlement; (4) the settlement agreement was not filed as required by California Rules of Court, rule 3.769(c), thereby preventing interested parties from examining the agreement; and (5) both [Plaintiffs'] counsel and [First Transit's] counsel refused to provide copies of the settlement agreement to Clarke, despite repeated written requests by Clarke's counsel."
In denying the motions, the trial court simply ruled that the evidence Clarke submitted did not prove that opposing counsel fraudulently prevented Clarke from presenting his claim or having his day in court. Stated differently, the trial court — as the trier of facts tasked with determining credibility and weighing the evidence — merely ruled that Clarke did not meet his burden of proof. Even Clarke acknowledges that the actions of opposing counsel may only "strongly suggest" or contain "circumstantial[] evidence of " the alleged extrinsic fraud in this case.
Based on our review of the totality of the evidence Clarke submitted — i.e., Clarke's counsel's declaration and 11 exhibits in support of the October 2013 Motion and Clarke's counsel's declaration and 10 exhibits in support of the November 2015 Motion — we conclude that the trial court's ruling that the evidence did not establish the alleged extrinsic fraud does not exceed the bounds of reason. To the contrary, the record establishes that Clarke in fact had notice of all pertinent court proceedings sufficient enough to file pleadings and appear and object — including the filing of written oppositions to Plaintiffs' August 2013 motion to approve the settlement (and attorney fees and costs and Plaintiffs' incentive awards) and to enter a final judgment, as well as his counsel's appearance at the hearing on Plaintiffs' motion. Indeed, Clarke presented most, if not all, of the arguments he raised in both of his motions to vacate the Judgment (see fn. 18) in his oppositions to Plaintiffs' September 2013 motion (see fn. 20).
We do not discuss the other myriad assignments of error by Clarke, because even if the trial court erred in its other rulings on which Clarke's equitable motions were denied, the fact that Clarke did not prove extrinsic fraud is fatal to his argument on appeal.
In July 2013, in opposition to Plaintiffs' motion to approve the settlement and to enter a final judgment, Clarke served a notice of intent to appear and object at a September 2013 hearing (almost two months later), as well as a 15-page points and authorities and a four-page declaration of counsel. In August 2013, in further opposition to the same motion to be heard two weeks later, Clarke served an additional 15-page points and authorities, an additional six-page declaration of counsel and 12 exhibits. In even further opposition to the same motion, two days before the September 2013 hearing, Clarke served an additional four-page points and authorities, an additional one-page declaration of counsel and an additional three exhibits. Finally, Clarke's counsel appeared and presented oral argument on Clarke's behalf at the September 2013 hearing on Plaintiffs' motion. --------
Clarke's objection is with the trial court's legal rulings that precluded Clarke's participation in the Paprock Class Action, not with a " ' "set of extrinsic circumstances which deprive[d Clarke] of a fair adversary hearing" ' "; i.e., Clarke was neither "kept in ignorance of the proceeding" nor "in some other way induced not to appear." (Sanders, supra, 40 Cal.3d at p. 614.) To the contrary, Clarke actively participated in the proceedings associated with the trial court's approval of the settlement and entry of the Judgment. For these reasons, the trial court did not abuse its discretion in denying Clarke's equitable motions to vacate the Judgment based on extrinsic fraud.
DISPOSITION
The December 7, 2015 order is affirmed. Plaintiffs and First Transit are awarded their costs on appeal.
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. O'ROURKE, J.