In June, the Supreme Court granted the petition for review in Hernandez v. Muller (Restoration Hardware), No. S233983. This is the statement of the issue on review:
Must an unnamed class member intervene in the litigation in order to have standing to appeal? (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)
(Hyperlink added.) In an opinion handed down in March, the Court of Appeal said yes. Hernandez v. Restoration Hardware, Inc., 245 Cal.App.4th 651 (2016), review granted. (The grant of review renders the opinion uncitable pursuant to former Rule of Court 8.1115.)
Hernandez is a class action alleging violations of the Song-Beverly Credit Card Act. 245 Cal.App.4th at 654. After class certification, the case went to trial, and the class prevailed. Judgment in the amount of approximately $36 million was entered. Id. at 655. Plaintiffs then moved for an award of attorneys' fees for class counsel from out of the common fund. An unnamed class member opposed the motion, and argued, among other things, that notice of the fee motion should be provided to all class members, and an opportunity object afforded. The trial court disagreed, and granted the fee motion in full. Id. at 656. The objector appealed.
The Court of Appeal dismissed the appeal for lack of jurisdiction, holding that the unnamed class member was not a "party," as required for standing to appeal under Code of Civil Procedure section 902 and the Supreme Court's opinion in Eggert, which the Court of Appeal described as "on all fours" and binding under Auto Equity Sales. 245 Cal.App.4th at 658-63.
The Court of Appeal did not reach the objector's substantive complaints about the fee award, which included the argument that the trial court, "by calculating the award based on a percentage of the common fund rather than by a properly rigorous lodestar multiplier approach, transgressed controlling California precedent." Id. at 657. This argument was, of course, rejected in Laffitte this month (as discussed in this blog post). The objector in Hernandez is represented by the same counsel as the objector in Laffitte. The opening brief is due on September 19, 2016.