California Court of Appeals, Second District, Seventh Division
from a judgment of the Superior Court of Los Angeles County
No. BC577028, Ann I. Jones, Judge. Dismissed.
Consumer Watchdog, Jerry Flanagan, Benjamin Powell and Pamela
Pressley for Objector and Appellant.
& Wolfson, Robert R. Ahdoot, Tina Wolfson, Theodore W.
Maya; Zimmerman Reed, Christopher P. Ridout and Caleb L.H.
Marker; Krause, Kalfayan, Benink & Slavens, Eric J.
Benink, Vincent D. Slavens; Moskovitz Appellate Team, Myron
Moskovitz and Christopher Hu for Plaintiffs and Respondents
Patrick Eck, Tyler Chapman, Brendan Eisan and Justin
Michael N. Feuer, City Attorney, Benjamin Chapman, Assistant
City Attorney, for Defendants and Respondents City of Los
Angeles and the Los Angeles Department of Water and Power.
PERLUSS, P. J.
Eck, on behalf of himself and a proposed class of similarly
situated Los Angeles County utility ratepayers, sued the City
of Los Angeles and the Los Angeles Department of Water and
Power (DWP) alleging DWP had overcharged ratepayers for
electric utility usage. After the court certified the class
for purpose of settlement and preliminarily approved a
settlement agreement between the parties, subject to a
fairness hearing, Carmen Balber, an unnamed class member,
timely objected to the settlement and filed an ex parte
application to intervene in the action. The court denied
Balber's application as untimely, overruled her
objection, approved the settlement and entered a judgment in
accordance with the settlement terms. Balber's subsequent
statutory motion to vacate the judgment was denied by
operation of law.
appeal from the judgment Balber contends the court erred in
approving the settlement agreement, primarily arguing the
notice sent to class members was inadequate. However, in her
briefs in this court Balber has not challenged the
court's ruling denying her application to intervene; and
she has not appealed from the denial of her motion to vacate
the judgment. Because Balber is not a party of record and has
not utilized the procedures available to alter her status,
she lacks standing to appeal from the judgment. Accordingly,
the appeal is dismissed.
AND PROCEDURAL BACKGROUND
Putative Class Action
April 1, 2015 Eck and other named plaintiffs, on behalf of
themselves and the proposed class of DWP ratepayers, filed a
putative class action alleging DWP had charged its electric
utility customers fees and other amounts that exceeded the
cost of providing electric utility service by approximately 8
percent; these overcharges were designed to fund annual
transfers from DWP to the City's reserve fund to benefit
the City's general fund; and such transfers, which had
not been approved by the voters, constituted an illegal tax
in violation of the California Constitution.
Preliminary Approval of a Class Action Settlement
September 14, 2017 the court conditionally granted class
certification for purposes of settlement and granted
preliminary approval of a proposed settlement agreement
between the class plaintiffs, on the one hand, and the City
and DWP, on the other hand. The proposed settlement created a
$52 million settlement fund, along with at least $243 million
in what the Eck parties have characterized as future savings
for ratepayers. The court scheduled a hearing concerning
final approval of the settlement and ordered notice to be
provided to all unnamed class members in accordance with the
terms of its order.
Balber's Objection to the Proposed Settlement
December 27, 2017, in response to the plaintiffs' notice
of motion and motion for final approval of the class action
settlement, Balber timely objected to the proposed
settlement. In her papers supporting her objection, Balber
primarily alleged (1) notice of the proposed settlement was
inadequate and/or misleading because it failed to apprise
class members of a planned $241 million transfer of funds
from DWP to the City for fiscal year 2017-2018; and (2) the
waiver and release provisions of the settlement ...