Opinion
B316817
02-15-2023
SILVERIO NEVAREZ et al., Plaintiffs and Respondents, v. COSTCO WHOLESALE CORPORATION, Defendant and Respondent; MEGAN ROUGH, Movant and Appellant.
GrahamHollis, Graham S.P. Hollis, Nathan Reese, and Nora Steinhagen for Movant and Appellant. Gibbs Law Group, Steven Tindall, Amy M. Zeman, and Jeffrey Kosbie; The Gould Law Firm, Michael A. Gould, and Aarin Zeif for Plaintiffs and Respondents. Seyfarth Shaw, David D. Jacobson, and Kiran A. Seldon for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. 19STCV10017, William F. Highberger, Judge.
GrahamHollis, Graham S.P. Hollis, Nathan Reese, and Nora Steinhagen for Movant and Appellant.
Gibbs Law Group, Steven Tindall, Amy M. Zeman, and Jeffrey Kosbie; The Gould Law Firm, Michael A. Gould, and Aarin Zeif for Plaintiffs and Respondents.
Seyfarth Shaw, David D. Jacobson, and Kiran A. Seldon for Defendant and Respondent.
FEUER, J.
Megan Rough appeals from an order denying her motions to intervene in the class action lawsuit filed by Silverio Nevarez and Effren Correa (Nevarez plaintiffs) against Costco Wholesale Corporation (Costco) alleging Labor Code violations and a cause of action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Because a final judgment has been entered and settlement proceeds distributed, we dismiss the appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Nevarez Action
On March 25, 2019 the Nevarez plaintiffs filed this lawsuit as a putative class action against Costco in the Los Angeles County Superior Court alleging Labor Code violations and a PAGA claim (Nevarez action). After Costco removed the action to federal court, on June 10, 2019 the Nevarez plaintiffs filed a first amended class action complaint in which they sought "to represent all current and former hourly paid workers employed by [Costco] in California from March 25, 2015 to the present." The Nevarez plaintiffs alleged causes of action for (1) failure to pay overtime wages; (2) failure to provide itemized wage statements; (3) failure to pay wages upon an employee's separation; (4) failure to pay minimum wages; (5) failure to provide meal periods; (6) unfair business practices in violation of Business and Professions Code section 17200 et seq.; and (7) civil penalties under PAGA. The lawsuit alleged Costco had exit security procedures that required store warehouse employees after clocking out at the end of their shifts or prior to a meal break to wait for a manager to arrive at an exit location and check their belongings before they could leave, resulting in unpaid wages and shortened meal periods.
On December 26, 2019 the district court denied the Nevarez plaintiffs' motion for class certification. The court found there was a written policy prohibiting off-the-clock work and insufficient evidence of a systemic unwritten policy that resulted in unpaid work. Further, the evidence showed Costco had different security procedures at individual warehouses, and it implemented a pro-employee rounding policy that would complicate calculation of whether any security delay resulted in uncompensated work.
The district court subsequently granted the Nevarez plaintiffs' motion to dismiss their individual Labor Code claims without prejudice. On March 9, 2020 the district court declined to exercise jurisdiction over the remaining claims and remanded the Nevarez action to state court.
B. The Rough Action
On May 28, 2019 Rough filed an individual and putative class action complaint against Costco in Solano County Superior Court (Rough action). Rough alleged causes of action for (1) failure to pay minimum and regular wages; (2) failure to pay overtime wages; (3) failure to provide accurate itemized wage statements; (4) failure to timely pay wages upon separation of employment; and (5) violation of Business and Professions Code section 17200 et seq. Rough alleged, similar to the Nevarez plaintiffs, that warehouse employees who worked closing shifts were required at the end of their shifts to wait for a manager to meet them at an exit location and check their bags before they could leave. The employees were not compensated for the additional time required to undergo the exit security procedures. Rough sought to represent a "Closing-Shift class," which she defined as "'[a]ll current and former non-exempt employees who worked for [Costco] in the State of California at one of [Costco's] warehouse stores and who worked one or more closing shifts at any time from four years prior to the filing of this Complaint through the present.'"
Costco removed the Rough action to federal court. Costco subsequently moved to change venue to consolidate the Rough action with the Nevarez action, but the district court denied the motion. On August 12, 2020 Rough filed a first amended individual and class action complaint, which added new allegations concerning Costco's three-minute rounding policy, under which Costco "will automatically round back 3 minutes after the start of shift, round forward 3 minutes before the end of shift, and round back 3 minutes at the end of a 30-minute lunch." Rough alleged the rounding benefitted employees and provided additional compensation but Costco failed to consider the additional compensation in calculating overtime wages. Costco therefore deprived employees "of full compensation for all overtime[] hours worked at the correct rate of pay for overtime."
C. Settlement of the Nevarez Action
On May 18, 2021 Costco and the Nevarez plaintiffs entered into a settlement agreement resolving the class and PAGA claims relating to Costco's exit security procedures. The settlement agreement defined "Class Members" as "all individuals whom [Costco] employed in California as non-exempt warehouse employees who worked one or more closing shifts at any time during the Settlement Period, except any individual who has sued [Costco] on any claim to be released or precluded as part of this Agreement." The settlement agreement provided further that "[s]pecifically excluded from the Release of Class Claims is any claim for unpaid overtime alleging that any compensation paid on account of Costco's three-minute rounding practice should have increased the regular rate of pay for purposes of calculating overtime pay, as that claim is alleged in [the Rough action]."
Under the settlement agreement, the settlement period was from March 25, 2015 through April 12, 2021.
Costco agreed to pay a "Gross Settlement Amount" of $8.75 million comprised of $7.5 million in cash payments and $1.25 million in the form of Costco shop cards. The agreement specified that "[i]n no event shall [Costco], absent its further agreement, be obligated to pay more than that amount, except to the extent of legally required employer taxes." Under the agreement, the cash payments included payments to class members, any "Service Award" to the named plaintiffs, a PAGA penalty amount, attorneys' fees and costs to counsel for the Nevarez plaintiffs, and administrative costs. The agreement also specified how payments to individual class members would be calculated. Costco agreed not to oppose a request by the Nevarez plaintiffs' counsel for attorneys' fees "in an amount up to one third of the Gross Settlement Amount," plus litigation costs and a service award of $7,500 each for Nevarez and Correa. Further, the parties would request approval of a $750,000 PAGA payment, 75 percent of which would go to the Labor and Workforce Development Agency (LWDA) and 25 percent to aggrieved employees. Costco and the Nevarez plaintiffs agreed the settlement administrator would send notice of the settlement to class members "via First Class U.S. mail and email, using the last-known mailing address and email address for each Class Member."
The courts have approved the payment of incentive awards in class action settlements to named plaintiffs on the theory "'they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class.'"
In addition, the parties contemplated that the settlement administrator would pay the service awards, attorneys' fees, LWDA payment, and individual payments 30 days after the "Effective Date." The "Effective Date" was defined as "14 days after the last of the following dates: (i) if no Objection has been submitted or if all Objections have been withdrawn, then the date of Final Approval; (ii) if an Objection has been submitted and not withdrawn, then the date on which there is a Judgment subject to no further appeal."
On June 25, 2021 the Nevarez plaintiffs moved for preliminary approval of the class action settlement and conditional class certification for settlement purposes. In his (Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394; accord, Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 806.) supporting declaration, Steven M. Tindall, counsel for the Nevarez plaintiffs, stated the net settlement fund would be approximately $5 million after deductions from the $8.75 million gross settlement amount of approximately $560,000 (final payment to the LWDA for the PAGA penalties), $15,000 (service payments to the Nevarez plaintiffs), $3 million (to the Nevarez plaintiffs' attorneys for attorneys' fees and costs), and $130,000 (administration costs). Class members receiving a settlement of $15 or less would receive payment in the form of a shop card, while the remainder of the class would receive payment in cash and a shop card. According to Tindall, the parties agreed that the settlement administrator would send "individual notice by email to each Class Member for whom Costco has an email address and by First Class Mail for those without an email address." Tindall added, "The Parties have agreed that for employees with a current email address, the Shop Cards will be sent electronically to reduce the administrative costs."
D. Rough's Motions To Intervene
On July 1, 2021 Rough filed a motion to intervene in the Nevarez action, arguing she met the requirements for mandatory intervention. Rough asserted her January 19, 2019 motion for class certification in the Rough action was pending in federal court and addressed "several of the same claims that the Nevarez Settlement seeks to release." Rough argued that if the court approved the Nevarez action settlement, the putative class members of the Rough action would "be greatly prejudiced because their claims will be extinguished for substantially lesser recovery than the claims are worth, particularly should the class be certified in the Rough [a]ction." Further, Rough's interests were not adequately represented by the parties to the Nevarez action settlement. Rough asserted the Nevarez action settlement was an "example of a strongly disfavored 'reverse auction' settlement whereby a defendant facing multiple class actions chooses to settle one of the actions in the hopes that the court will approve a weak settlement which will then preclude other claims against that defendant."
Rough requested alternatively that the trial court grant permissive intervention. She argued her motion was timely; she had an interest in the Nevarez action; intervention would not enlarge the issues in the case; and her basis for intervention outweighed any opposition by the Nevarez action parties. Rough added that intervention would not delay the Nevarez action settlement, "but rather [would] ensure that any potential settlement which releases the class claims will be fair, adequate, and reasonable." In an amended motion Rough argued the settlement "shockingly undervalues" the claims and was unfair, unreasonable, and inadequate.
In her amended motion Rough also argued the Nevarez action settlement failed to carve out Rough's derivative Labor Code sections 203 and 226 claims relating to the three-minute rounding policy. However, the September 14, 2021 addendum to the settlement agreement excluded Rough's derivative Labor Code claims relating to Costco's three-minute rounding practice.
On September 28, 2021 the district court granted Costco's motion for partial summary judgment as to Rough's claims involving Costco's three-minute rounding policy and denied Rough's motion for class certification of the remaining proposed classes in the Rough action. The court found Costco presented undisputed evidence that its rounding policy was a grace period for employees who clock in or out slightly early or late, and it was not "renumeration for hours worked nor for performing any employment duty and thus, not included in the regular rate of pay." With respect to Rough's motion for class certification regarding the off-the clock claims for Costco's exit security procedures, the court found Rough failed to establish a companywide policy or practice, and therefore common issues did not predominate.
On October 4, 2021 Rough filed a second amended motion to intervene in the Nevarez action, reiterating many of the objections raised in her prior motions as to adequate representation, the settlement agreement releases, and notices to class members. Rough also argued she intended to seek attorneys' fees and costs from the Nevarez action settlement.
On October 14, 2021 Costco and the Nevarez plaintiffs filed separate oppositions to Rough's second amended motion to intervene. They argued Rough's motion to intervene was untimely; Rough did not have an interest in the Nevarez action because she was excluded from the definition of a class member and could continue to litigate the Rough action; the Nevarez plaintiffs and trial court could adequately protect the interests of the absent class members; intervention would enlarge the issues because Rough's proposed complaint in intervention included claims relating to Costco's three-minute rounding policy; and Rough's interest in intervention did not outweigh the parties' interests in promptly settling the Nevarez plaintiffs' claims.
After a hearing on October 27, 2021, the trial court denied Rough's July 1, 2021 motion and her October 4, 2021 second amended motion to intervene with prejudice. On November 30, 2021 Rough appealed the October 27, 2021 order.
E. Post-appeal Judgment
On May 3, 2022 the trial court granted the Nevarez plaintiffs' motion for final settlement approval and entered judgment. The settlement class included "all individuals whom [Costco] employed in California as non-exempted warehouse employees who worked one or more closing shifts at any time during the Settlement Period (March 25, 2015, through April 12, 2021), except any individual who has sued [Costco] or any claims to be released or precluded as part of this Agreement." The court noted no class members filed objections and nine class members opted out of the settlement. The court found the individual settlement payments provided under the settlement agreement were "fair" and "reasonable" and the notice "satisfied the requirements of due process and California law and provide the best notice practicable under the circumstances, including individual notice to all Settlement Class Members who could be identified through reasonable efforts." The court approved payment of approximately $3 million in attorneys' fees and costs, $168,000 in administrative costs, and $7,500 service payments to Nevarez and Correa.
We grant Costco's August 25, 2022 motion for judicial notice of the May 3, 2022 judgment and trial court docket for this case, as well as the Nevarez plaintiffs' September 22, 2022 motion for judicial notice of the May 3, 2022 minute order. (Evid. Code, §§ 452, subd. (d), 459.)
F. Supplemental Briefing
On January 5, 2023 we requested the parties file supplemental letter briefs addressing whether the settlement proceeds had been partially or fully distributed, and whether in light of entry of judgment and distribution of some or all of the settlement proceeds we could provide Rough effective relief.
Costco and the Nevarez plaintiffs filed letter briefs asserting that all settlement payments had been fully distributed, rendering Rough's appeal moot. Further, the judgment was now final, and because Rough did not appeal from the judgment, this court has no jurisdiction to set it aside. Rough responded that she has no access to information whether the settlement proceeds had been distributed. However, even if the settlement proceeds had been distributed, this court could grant Rough effective relief by granting her intervenor status, thereby enabling the trial court to award attorneys' fees and costs and a service award, and to amend the judgment to require counsel for the Nevarez plaintiffs "to disgorge a portion of any fees already received."
On January 12, 2023 Costco filed a second motion for judicial notice, or in the alternative, for consideration of additional evidence pursuant to Code of Civil Procedure section 909. Costco requests we take judicial notice of the declaration of Carole Thompson filed in the trial court in the Nevarez action on January 11, 2023 "[r]egarding final accounting and disbursement of class action settlement re: settlement distribution hearing" scheduled for February 7, 2023. (Capitalization omitted.) We take judicial notice of the filing of the Thompson declaration, but not the statements in the declaration. (In re Vicks (2013) 56 Cal.4th 274, 314 ["'[W]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.'"]; In re M.B. (2022) 80 Cal.App.5th 617, 626 [same].) However, we consider the Thompson declaration and its contents under section 909 to determine whether the appeal is moot. (In re Josiah Z. (2005) 36 Cal.4th 664, 676; Reserve Insurance Co v. Pisciotta (1982) 30 Cal.3d 800, 813 [courts may consider postjudgment evidence "when subsequent events have caused issues to become moot"].)
Further undesignated statutory references are to the Code of Civil Procedure.
Section 909 provides, "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court.... The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require."
Thompson is the supervising case manager for CPT Group, Inc., which was selected by the parties in the Nevarez action to provide notice of the settlement and to process settlement payments, exclusions, and objections. According to Thompson, CPT opened a settlement account that Costco funded on June 6, 2022 with approximately $7.6 million. On June 21, 2022 CPT paid from the settlement fund 96,980 cash awards to class members (by checks in varying dollar amounts), approximately $560,000 to the LWDA, $3 million for attorneys' fees and costs; $15,000 for service awards, $168,000 for administration fees, $21,000 for state employment taxes, and $278,000 for federal taxes. In addition, Costco provided CPT with $1.25 million in Costco shop cards to be distributed to specified class members. On June 21, 2022 CPT distributed 96,680 shop cards to class members and "[a]ggrieved [e]mployees." On January 10, 2023, pursuant to the settlement agreement, CPT mailed checks for approximately $284,000 each to two legal aid organizations. The two checks represented the total amount of uncashed and abandoned checks that had been distributed. According to Thompson, once the checks to the legal aid organizations are cashed, "there will be no funds remaining in the Settlement Fund."
DISCUSSION
"'"[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal"' as moot." (People v. DeLeon (2017) 3 Cal.5th 640, 645; accord, Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 ["'"[T]he duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it."'"]; Shapell Socal Rental Properties, LLC v. Chico's FAS, Inc. (2022) 85 Cal.App.5th 198, 209 ["A case is moot and will be dismissed when the appellate court cannot grant the appellant any effective relief."].)
Hindman v. Owl Drug Co. (1935) 4 Cal.2d 451, relied on by Costco and the Nevarez plaintiffs, is on point. In Hindman, the plaintiff was a stockholder in a corporate drug company who filed a representative (derivative) action on behalf of the corporation to recover damages from the defendants. (Id. at p. 453.) After a settlement was reached and judgment satisfied, other stockholders moved to intervene in the action and prosecute the action with plaintiff Hindman. (Ibid.) The lower court denied the motion, and the moving stockholders appealed. (Ibid.) While the appeal was pending, the drug company filed for bankruptcy, and the bankruptcy court approved a sale of all its assets to another company. (Id. at p. 455.) The Supreme Court dismissed the appeal as moot, explaining, "Where the judgment in a cause, rendered in the trial court, has become final, an appeal from an order denying intervention in such cause will be dismissed, as a reversal of such order would be of no avail." (Id. at p. 456.)
We recognize that at the time Hindman was decided, former section 387 limited intervention to "any time before trial." In 1977 the limitation was removed by Senate Bill No. 750, and it now reads that any person may intervene "[u]pon timely application." (See Stats. 1977, ch. 450, § 1; Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 437.) As the Supreme Court observed in Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267, "[t]he fact that section 387 allows for a 'timely' application means that intervention after a judgment is possible." (Accord, Mallick, at p. 437 ["[I]ntervention is possible, if otherwise appropriate, at any time, even after judgment."].) Thus, there could be scenarios in which a party appeals the denial of a motion to intervene filed after a judgment is entered- or an appeal of denial of an intervention motion is pending when a judgment is entered-but the entry of judgment does not moot the appeal. This is not one of them. As in Hindman, even if we were to order the trial court to grant Rough's motion to intervene, the judgment has been entered and the settlement proceeds distributed. We are not aware of any mechanism, nor has Rough cited any, for us to vacate the judgment and order Costco to pay additional funds to Rough as a service award or for attorneys' fees and costs, or for counsel for the Nevarez plaintiffs to "disgorge" some of the funds they received in the settlement.
It is a reasonable assumption that the two checks to the legal aid organizations have been cashed or will be before the trial court would rule on a request by Rough to award her a service award and attorneys' fees and costs. And as Thompson declared, once the checks are cashed, there will be no funds remaining in the settlement fund.
Rough's reliance on Linder v. Vouge Investments, Inc. (1966) 239 Cal.App.2d 338, 343 is misplaced. There, a limited partner of the defendant partnership moved to intervene and to vacate a default judgment entered against the partnership after the general partner was served but took no action. (Id. at p. 339.) The limited partner appealed from the orders denying its motion to intervene, motion for reconsideration of the denial, and motion to vacate the default and default judgment. (Id. at p. 345.) The court directed the trial court to consider the limited partner's motion to intervene and to set aside the default, explaining "[i]t is clear that the entire proceedings involving the judgment would not have taken place, had the court exercised its discretion to permit intervention affirmatively." (Id. at pp. 345-346.) The Linder court rejected the plaintiff's contention "that invention must be denied . . . because the case has proceeded to judgment," reasoning that if the trial court erred in denying intervention (to remedy the default), "the later judgment cannot make that error moot." (Id. at p. 343.) The Linder court could (and did) grant the limited partner effective relief by reversing the order denying the motion to vacate the judgment (properly appealed), as well as the ruling denying reconsideration of denial of the intervention motion. Unlike Linder, Rough did not move to vacate the judgment, and, as discussed, the settlement proceeds have now been disbursed.
Kobernick v. Shaw (1977) 70 Cal.App.3d 914, 920, also relied on by Rough, followed Linder in concluding the limited partners' appeal of an order sustaining a demurrer to their crosscomplaint against the plaintiff and general partner without leave to amend was not moot even though a default judgment had been entered based on the partnership's failure to appear. (Ibid.) The Court of Appeal likened the cross-complaint to the limited partner's motion to intervene in Linder, supra, 239 Cal.App.2d at page 338. (Kobernick, at pp. 919-920.) The court reasoned the default judgment never would have been entered if the demurrer to the cross-complaint had not been sustained, and therefore, entry of judgment did not moot the appeal from the order sustaining the demurrer. (Id. at p. 920.) We recognize that in Kobernick the limited partner did not file a motion to vacate the judgment, but the case is distinguishable on its unique facts in that it was the sustaining of the demurrer (properly appealed) that caused entry of the judgment because the general partner (alleged to have conspired with the plaintiff) never responded to the complaint on behalf of the partnership.
The cases relied on by Rough in her supplemental letter brief do not assist Rough because they do not address mootness. In Ryerson v. Riverside Cement Co. (1968) 266 Cal.App.2d 789, 795, the Court of Appeal treated the People's motion to intervene as a motion to vacate a void judgment. The court reasoned the People's "intervention was premised on the absence of a valid judgment," and "[a]n appeal from the order denying intervention, therefore, necessarily places in issue the validity of the judgment." (Ibid.) In Mary R. v. B. &R. Corp. (1983) 149 Cal.App.3d 308, 314-315, the Court of Appeal affirmed the denial of the government entity's motion to intervene but held the entity had standing to collaterally attack the validity of a sealing and gag order to fulfill "its statutory obligations." In Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1503, the petitioners successfully challenged a town's interim contract with a waste management company on the basis it violated the stay provisions of Elections Code section 9241. On remand, the petitioners declined to move for attorneys' fees in the trial court even though their attorneys had agreed to pursue the first appeal without charge. (Id. at p. 1504.) The attorneys moved to intervene to request their attorneys' fees and costs, but the trial court denied the motion for lack of standing. (Ibid.) On appeal from the denial of the motion, the Court of Appeal concluded the attorneys had "standing to move for fees and sufficient interest in an award of attorney fees under section 1021.5 to support permissive intervention." (Id. at p. 1502.)
Rough is correct that she was not required to move to vacate the judgment under section 663, then appeal denial of that motion, to have appellate standing. As this court explained in Eck v. City of Los Angeles (2019) 41 Cal.App.5th 141, 145 in the class action context, "[I]f either motion [to intervene or vacate the judgment] is unsuccessful, the unnamed class member may appeal from the order denying intervention and/or the motion to vacate." (See Hernandez, supra, 4 Cal.5th at p. 273 [holding that had unnamed class member "properly intervened in the class action or filed a section 663 motion to vacate the judgment, and been denied relief, she would have had a clear path to challenge the attorney fees award (or settlement or judgment) on appeal"].)
Section 663 provides, "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, 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
But Rough elected not to move to vacate the judgment at her own peril because an appeal from an order denying intervention "stays only those proceedings pertaining to the subject matter of the appeal" under section 916, subdivision (a),"namely, the question of [appellant's] intervention." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737, fn. 7; accord, Olson v. Hopkins (1969) 269 Cal.App.2d 638, 644-645 [appeal from judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict." order denying motion to intervene did not "oust[] the court of jurisdiction to proceed with the action"].)
Section 916, subdivision (a), provides in relevant part, "[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order."
Rough could have moved to vacate the judgment under section 663 as an "aggrieved" person. As the Supreme Court explained in County of Alameda v. Carleson, supra, 5 Cal.3d at pages 736 to 737, "One 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. [Citations.] One 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."'" (Accord, Elliot v. Superior Court of San Diego County (1904) 144 Cal. 501, 509 [a person "may make himself a party by moving to set aside such judgment or order, and if his motion is denied may, on appeal from that order, have the proceeding of which he complains reviewed . . . for error"]; Tomassi v. Scarff (2000) 85 Cal.App.4th 1053, 1057.)
Rough was an aggrieved employee in that she would have been a member of the class but for the settlement agreement excluding as a class member any plaintiff who had sued Costco on the same claims. And had Rough moved to vacate the judgment under section 663, denial of the motion would have been appealable as an order made after a final judgment under section 904.1, subdivision (a)(2). (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 127 ["this court has always interpreted the language currently found in section 904.1, subdivision (a)(2), to make appealable all section 663 denials"].)
Further, even without filing a motion to vacate the judgment, Rough could have sought from this court a stay of the trial court proceedings pending her appeal. (See Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 731 [where trial court denied motion by plaintiffs in later-filed class action to intervene in Edwards class action, and Edwards plaintiffs moved for preliminary approval of settlement agreement, appellate court stayed trial court proceedings to consider appeal from order denying intervention].)
Because Rough did not protect her rights by filing a motion to vacate the judgment or requesting a stay of the trial court proceedings, we cannot now grant Rough effective relief. Rough argues in her supplemental letter brief that affording her intervenor status would enable her to request a service award and attorneys' fees and costs. She also contends the award could come from undistributed settlement funds (which will not be available once the legal aid checks are cashed), or from a trial court order requiring Costco to pay the fees. But, as discussed, the settlement agreement approved by the court as part of entry of the final judgment specified that Costco would not be obligated without its consent to pay any additional funds other than for employer taxes. Moreover, the trial court already denied Rough's motion for attorneys' fees and costs and a service award, finding "she has not demonstrated that she or her counsel were a cause in fact in bringing this settlement about." ~(9/2/22 RJN pdf p. 10)~
In her motion to intervene Rough also sought intervention "to oversee administration of the settlement" and object to the release language in the class notice and the use of only email to send class notice and shop cards to some of the settlement class members. We cannot provide Rough any relief on this basis for intervention because class notices have been sent, and as discussed, the settlement proceeds have been distributed to class members.
Rough argues that the court may order Costco to pay additional funds (and presumably unravel the entire settlement agreement) because the "Effective Date" of the settlement is 14 days after the later of the date of final approval or, if an objection is submitted, the date there is a judgment "subject to no further appeal." Rough contends her motion to intervene "was in effect an objection to the settlement." It was not. As the trial court noted in approving the settlement, there were no objections to the settlement. Rough cites no authority for treating her motion to intervene as an objection to the settlement agreement.
Alternatively, Rough urges us not to find her appeal moot because Costco and the Nevarez plaintiffs were at fault in allowing the settlement funds to be distributed without resolution of Rough's appeal. But nothing required Costco or the Nevarez plaintiffs to delay payments to the class members and others to enable Rough's appeal to proceed. Rather, it was Rough who had the ability to delay implementation of the settlement agreement by filing a motion to stay the trial court proceedings or a motion to vacate the judgment. We therefore dismiss Rough's appeal as moot because we cannot grant her effective relief.
DISPOSITION
The appeal is dismissed as moot. Costco and the Nevarez plaintiffs are entitled to recover their costs on appeal.
We concur: SEGAL, Acting P. J. HOWARD, J.[*]
[*] Judge of the Marin County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.