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Eck v. City of Los Angeles

California Court of Appeals, Second District, Seventh Division

October 15, 2019

PATRICK ECK et al., Plaintiffs and Respondents,
v.
CITY OF LOS ANGELES et al., Defendants and Respondents CARMEN BALBER, Objector and Appellant.

          APPEAL 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.

          Ahdoot & 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 Kristopher Le-Roy.

          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.

         Patrick 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.[1] 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.

         On 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         1.The Putative Class Action

         On 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.

         2. Preliminary Approval of a Class Action Settlement

         On 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.

         3. Balber's Objection to the Proposed Settlement

         On 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 ...


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