LaFace v. Ralphs Grocery CA2/4 ( 2022 )

Filed 8/15/22 LaFace v. Ralphs Grocery CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JILL LAFACE, B309721
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC632679)
v.
RALPHS GROCERY COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Patricia Nieto, Judge. Dismissed.
Knapp, Petersen & Clarke, André E. Jardini, K.L. Myles,
Greta T. Hutton; Capstone Law, Ryan Y. Wu, Melissa Grant and
John Stobart; Law Offices of Michael V. Jehdian and Michael V.
Jehdian for Plaintiff and Appellant.
Morrison & Foerster, Tritia M. Murata, Wendy J. Ray,
Karen J. Kubin, James R. Sigel for Defendant and Respondent.
INTRODUCTION
Decedent Jill LaFace filed a representative action against
Ralphs Grocery Company under the Private Attorneys General
Act (Lab. Code, § 2698, et seq. (PAGA)) seeking civil penalties for
alleged violations of workplace seating requirements. Following
a bench trial, the superior court entered judgment in favor of
Ralphs. We affirmed the judgment. (See LaFace v. Ralphs
Grocery Co. (2022) 75 Cal.App.5th 388 (LaFace).) Following the
trial, the court awarded costs to Ralphs in the amount of
$193,857.98. LaFace appealed.
LaFace died while this appeal was pending, before the
opening brief was filed. LaFace’s counsel has not attempted to
substitute LaFace’s personal representative or successor in
interest into the case. Ralphs moved to strike the opening brief
and requested that we dismiss the appeal because there is no
appellant.
We agree, and therefore grant Ralphs’s motion to strike the
opening brief and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
LaFace worked as a cashier at a store owned by respondent
Ralphs Grocery Company. She brought a PAGA action against
Ralphs on behalf of herself and other current and former Ralphs
cashiers, alleging that Ralphs violated an Industrial Welfare
Commission wage order that required employers to provide
suitable seating for cashiers. (LaFace, supra, 75 Cal.App.5th at
p. 392.) A bench trial was held between November and December
2019, and the trial court found that Ralphs had not violated the
wage order. (Ibid.) We affirmed the judgment. Although LaFace
died before the reply brief was filed, we exercised our discretion
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to decide the appeal on its merits because it presented a
continuing issue of public interest. (Id. at p. 392, fn. 1.)
Meanwhile, in the superior court Ralphs filed a
memorandum of costs seeking $746,788.80 in costs, not including
attorney fees. LaFace filed a motion to strike or tax costs. The
superior court granted LaFace’s motion in part, taxed costs of
$552,930.82, and awarded costs to Ralphs in the amount of
$193,857.98.
LaFace timely appealed in December 2020. LaFace died in
September 2021. LaFace’s counsel filed an opening brief on
December 10, 2021. LaFace’s counsel has not sought to
substitute a personal representative, successor in interest, or any
other party as the appellant. Ralphs filed a motion to strike the
opening brief, and in its respondent’s brief asks us to dismiss the
appeal. LaFace’s counsel opposed the motion to strike, and did
not file a reply brief.
DISCUSSION
“A pending action or proceeding does not abate by the death
of a party if the cause of action survives.” (Code Civ. Proc.,
§ 377.21.) “A cause of action that survives the death of the
person entitled to commence an action or proceeding passes to
the decedent’s successor in interest . . ., and an action may be
commenced by the decedent’s personal representative or, if none,
by the decedent’s successor in interest” (Code Civ. Proc.,
§ 377.30.) Ralphs argues that the opening brief must be stricken
and the appeal must be dismissed because “no party is pursuing
it.”
The attorney-client relationship is “one in which the
attorney acts as agent for the client, who is the principal.”
(Contreras v. Dowling (2016) 5 Cal.App.5th 394, 418.) An
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attorney may not represent a client without the client’s consent.
(See, e.g., In the Matter of Shinn (Review Dept. 1992) 2 Cal. State
Bar Ct. Rptr. 96, 104-105.) “As a general rule the authority of an
attorney to act for his client normally ends with the client’s
death.” (In re Lanza’s Estate (1964) 229 Cal.App.2d 720, 724.)
Following LaFace’s death, and with no substituted party in her
place, LaFace’s counsel is acting without LaFace’s consent and
without a client.
Moreover, an attorney without a client generally does not
have standing to appeal a fee award. (See In re Marriage of
Tushinsky (1988) 203 Cal.App.3d 136, 141.) LaFace’s counsel has
not sought to intervene in the case to assert any interest they
may have in the cost award. (Lindelli v. Town of San Anselmo
(2006) 139 Cal.App.4th 1499, 1512.)
LaFace’s counsel argues that the appeal should not abate
upon LaFace’s death because in a PAGA action, the state is the
real party in interest. (See, e.g., Arias v. Superior Court (2009)
46 Cal.4th 969, 986 [“An employee plaintiff suing [under PAGA]
does so as the proxy or agent of the state’s labor law enforcement
agencies”].) Ralphs counters that the cost award was imposed
against LaFace rather than the state, and therefore the state is
not an aggrieved party and has no standing to appeal. (Code Civ.
Proc, § 902; In re Marriage of Burwell (2013) 221 Cal.App.4th 1,
13 [“To have appellate standing, one must (1) be a party and (2)
be aggrieved.”].) We agree that the state does not have standing
because it is not an aggrieved party, and LaFace’s counsel is not
directly representing the state in this appeal.
LaFace’s counsel compares this case to Sullivan v. Delta
Air Lines, Inc. (1997) 15 Cal.4th 288, which considered whether
the recovery of damages for pain and suffering was barred when
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the plaintiff died after judgment while an appeal was pending.
(See Code Civ. Proc. § 377.34, subd. (a) [“In an action or
proceeding by a decedent’s personal representative or successor
in interest on the decedent’s cause of action, the damages
recoverable . . . do not include damages for pain, suffering, or
disfigurement.”].) The Supreme Court held that “death after
judgment does not abate any aspect of personal tort actions,
including the right to recover damages for pain and suffering.”
(Id. at p. 305.) However, appellate standing was not at issue in
that case; the decedent’s successor in interest had been
substituted as the plaintiff. (Sullivan, supra, 15 Cal.4th at p.
292.) Sullivan therefore does not control here.
Because LaFace’s counsel filed the opening brief without
client consent and is pursuing the appeal without a client, we
agree the opening brief should be stricken and the appeal should
be dismissed.1 (Cal. Rules of Court, rule 8.220(a)(1).)
1 The parties agree that the cost award erroneously includes
$16,502.72 in paralegal travel costs, which the superior court
intended to strike as unnecessary to the litigation. Ralphs
represents in its respondent’s brief that it will not oppose a
motion brought before the superior court to correct the cost award
to eliminate this error. (See Code Civ. Proc., § 473, subd. (d)
[“The court may . . . correct clerical mistakes in its judgment or
orders as entered, so as to conform to the judgment or order
directed”].)
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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