HERNANDEZ v. RESTORATION HARDWARE, INC.

Appellant’s Reply Brief on the Merits

Cal.February 28, 2017

No. 8233983 _ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MIKE HERNANDEZ,etai, Plaintiffs and Respondents, Vv. FRANCESCA MULLER, SUPREME COURT FILED Plaintiff and Appellant,ifand App FEB 28 2017 RESTORATION HARDWARE,INC., , Jorge Navarrete Clerk Respondent. , Deputy After a Decision of the Court of Appeal, Fourth Appellate District, Div. 1, No. D067091; San Diego Superior Court, Central Div., No. 37-2008-00094395-CU-BT-CTL Hon. William S. Dato, Judge APPELLANT FRANCESCA MULLER'S ° @ REPLY BRIEF ON THE MERITS LAWRENCE W. SCHONBRUN (CSB No. 054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member-Appellant Francesca Muller ———— n S No. S233983 IN THESUPREME COURT OF THE STATE OF CALIFORNIA MIKE HERNANDEZ,et al., Plaintiffs and Respondents, V. FRANCESCA MULLER, PlaintiffandAppellant; RESTORATION HARDWARE,INC., Respondent. After a Decision of the Court of Appeal, Fourth Appellate District, Div. 1, No. D067091; San Diego Superior Court, Central Div., No. 37-2008-00094395-CU-BT-CTL Hon. William §. Dato, Judge APPELLANT FRANCESCA MULLER'S REPLY BRIEF ON THE MERITS LAWRENCE W. SCHONBRUN (CSB No.054519) LAW OFFICE OF LAWRENCE W. SCHONBRUN 86 Eucalyptus Road Berkeley, CA 94705 Telephone: (510) 547-8070 Attorneyfor PlaintiffClass Member-Appellant Francesca Muller e TABLE OF CONTENTS Page Table of Authorities ..0..... ceeeessessesssseecesesseseeeeecsnsseeessssnssseaessnsssessueensseseeseessesseeenes iv INTRODUCTION.0.eeeceseccesecesseeeseesecseesenecseeeaseeseeesesneesaeesecessesesaeeenessessncaasas I I. Class Counsel's Claim That Class Member-Appellant Has Not Provided Any Reasonsto Overrule This Court's Decision in Eggert Is Incredulous. 0.0... seeessssssceseeseceeseeeeesccsseececscessceseeeassaesesseseessenseees 2 A. It is Appropriate to Reconsider the 75-Year-Old FEoggert DeCISION ........:ccssesesesscesccesnccssseceesscsacessecessnecssaeesetesesacesesseeses 2 B. Eggert Did Not Discussthe Public Policy Implications Of Its Decision...ee ecessesesseeeneetereessecssescesseecsneesssesssesseeeessensesaeseeas 3 C. NumerousCalifornia Appellate Courts Have Not Followed Egger.....csecccesccsesscsseseesseseesecscsecssescssacsesereeeeeaeenecsseaeseseeess 3 D. Eggert and Restoration Hardware Do NotReflect God Public Policy...eee eeeeseceseeesneceeeeeesseeeeeeesseeeseeceesersuesaeeaseeess 3 E. Eggert Is Not Compatible to the Restoration Hardware Fact Pattern...ce ecesessceseesscscessesesseeseeesessetsnacesseessneeeesesseeeessenssessees 4 F, The Restoration Hardware Decision Is Contradicted by the Marsh Exception...csessccsssceceesseeesesneceeeeseeeseeeeeeseesseesesees 4 G. Restoration Hardware's Rejection of Trotsky Was Based on a Mistakenly Asserted Conflict in Federal Authority ................... 4 Il. Class Counsel Fail to Address Numerous Arguments Raised in Class Member-Appellant's Opening Brief on the Merits...5 A. Restoration Hardware \s Not on "All Fours" with Eggert.......0...0.... 5 B. An Overwhelming NumberofAppellate Courts throughout California Have Not Followed Eggert........ccccscscesseseees 6 Il. IV. TABLE OF CONTENTS il Page C. The Restoration Hardware Court Completely Misunderstood the Devlin and Ortiz Decisions...........ccccccecceeeesseees 8 D. Class Counsel Provided No Counterargumentto Class Member-Appellant's Refutation of the Purported Benefits of Intervention.........seeuaesecsccsesssaeesneceseaeeessesesseeseeensscsscseseaaes 9 Not Content with Falsely Claiming That Class Member-Appellant Provided No Reasons to Overturn Eggert, Class Counsel Rely on Additional Distractions.0........csssssssssssesscsessssesescssscsssecssssesecsesseateceasestsctenes 10 A. Class Counsel Invented Their Own Legal Requirements for Class ACtiOns .......eeessssssssssssssesscssesesecscsessssssssssssacscsceactecacarenes 10 B. Class Counsel Make NumerousFactually Incorrect Assertions and Arguments...........cccsccscsscssessscesecssssssssesssssesscceeceeceneess 13 C. Class Counsel Fill Their Answer Briefwith Flatly Irrelevant and/or Misleading Assertions and Arguments................. 15 D. Without Offering the Slightest Bit ofEvidence in Support Thereof, Class Counsel Assert Problems with the Class Action Mechanism That Purportedly Justify Intervention by Unnamed Class Membef?...........c:cccccssscsessectscetenes 20 E. Class Counsel's AdHominem Attack on Class Member- Appellant and Her CounselIs Inappropriate in a Brief before This Court... ccssccsssseesssscssesssessssscesscssessssessccsssaseeserensesses 24 The Remaining Arguments in Class Counsel's Answer Brief are Uncompelling oo...esscesecseeeessecssesesecseseseessesessessessessscsssasescsesataees 26 A. This Court Should Follow the Class Action Procedures Arkansas, Not Its Own Courts of Appeal or the United States Supreme Court 0.0... ecescsssssesssesssssscsseeseseessessseessssescssssserees 26 B. Trotsky and Its Progeny Should be Disregarded ...........c.ccceeeeeees 27 C. Class Member-Appellant Should Either Intervene or Be Bound by the Judgment... ccccccesesssssscesscsessesscsscsssscsesestavecees 27 TABLE OF CONTENTS Page D. The Res Judicata Exception to Party Status under Code of Civil Procedure Section 902 Should Not Apply IN Class Actions,........scccecesseecessesessssssescesceeesaeetesesscssesaesecesseussseseas 28 E. Class Counsel Exaggerate the Legal Significance of Post-Devlin Court DeCiSiOns..........ccccccessesssesscessesseessesecsesessssesseseaee 30 V. Even If This Court Reaffirms Eggert, the Court of Appeal's Dismissal of Class Member-Appellant's Appeal Was Improper................. 31 A. Class Member-Appellant Took Steps to Becomea Party................ 31 B. The Legal Precedentat the Time of the Underlying Trial Court Case Did Not Require Unnamed Class Members to Intervene... .eceeccsssssesscseecsssecceecesessessessesssessesscssescess 32 CONCLUSION...cece cieesscsscsstscssetsceseesseeseceessenasenesacesensessneesssessesessecnesecesessusesoues 33 CERTIFICATE OF WORD COUNT...ceeccsssesseseeeseesseessesssenseseeeosseessesnssssesens 34 CERTIFICATE OF SERVICE 1... cicccccsscsesessesesssseesseesseesseeesssasesasesssseseeseessessees 35 ill TABLE OF AUTHORITIES State Cases Page Ballard v. Advance America, et al., 349 Ark. 545, 79 §.W.3d 835, 2002 Ark. LEXIS 402 (Supreme Ct. July 5, 2002)...eeesecsseseeesseeteeeseesesseesessssesesseseseeseseesssens 26 Chavez v. Netflix, Inc., 162 Cal.App.4th 43 [75 Cal.Rptr.3d 413] (1st App. Dist., Div. 1, Apr. 21, 2008)...ce eesecsssssccsseeseeecssessessssssssceeeees 7 Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Market, Inc., 127 Cal.App.4th 387 [25 Cal.Rptr.3d 514] (2d App. Dist. Mar. 7, 2005).........cccccecssessscssssscseseeee 7 Consumer Defense Group v. Rental Housing Industry Members, 137 Cal.App.4th 1185 [40 Cal.Rptr.3d 832] (4th App. Dist., Div. 3, Mar. 24, 2006) ..........ccccssccssscesssessssssssssececseserseasennss Eggert v. Pacific States Savings andLoan Co., et al., 20 Cal.2d 199 (Apr. 21, 1942)...seseseeeecceecesesseseseeeessesesseeeceespassim Fireside Bank v. Superior Court ofSanta Clara Co., et al., 40 Cal.4th 1069 [56 Cal.Rptr.3d 861] (Apr. 16, 2007) ..........cess 12,19 Hernandez, et al., Pls. and Resp'ts; Francesca Muller, Pl. and Appellant v. Restoration Hardware, Inc., Def. and Resp't, 245 Cal.App.4th 651[199 Cal.Rptr.3d 719], 2016 Cal.App. LEXIS 185 (4th App. Dist., Div. 1, Mar. 14, 2016) ....passim Jasmine Networks, Inc. v. The Superior Court ofSanta Clara Co., 180 Cal.App.4th 980 [103 Cal.Rptr.3d 426] (6th App. Dist. Dec. 29, 2009) 0... eccscsseecccessrsesssecsececssesesssccstsscssneees 19, 20 Marsh v. Mountain Zephyr, Inc., 43 Cal.App.4th 289 [50 Cal.Rptr.2d 493] (4th App. Dist., Div. 1, Mar. 6, 1996)............. 4, 28, 29 Rebney v. Wells Fargo Bank, 220 Cal.App.3d 1117 [269 Cal.Rptr. 844] (1st App. Dist., Div. 2, May 25, 1990) uo...ees7 Roos v. Honeywell International, Inc., 241 Cal.App.4th 1472 [194 Cal.Rptr.3d 735] (ist App. Dist., Div. 1, Nov. 10, 2015)...6, 7 iv TABLE OF AUTHORITIES | State Cases (cont'd) Page Sherman vy. Allstate Ins. Co., 90 Cal.App.4th 121 [108 Cal.Rptr.2d 722] (2d App. Dist., Div. 7, June 25, 2001)...eee6 Simonsv. Horowitz, et al., 151 Cal.App.3d 834 [199 Cal.Rptr. 134] (1st App. Dist., Div. 3, Feb. 7, 1984)... 7, 15 Trotsky v. Los Angeles FederalSavings andLoan Ass'n,et al., 48 Cal.App.3d 134 [121 Cal.Rptr. 637] (2d App. Dist., Div. 5, May 6, 1975)... ceesccscscesssessesssessessessesresssesspassim Wershba v. Apple Computer, 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001)...eeeneers 7 Federal Cases Page AAL High Yield Bond Funda series ofDelaware Group Income Funds, etc. v. Banc ofAmerica Sec. LLC,etc., et al., 361 F.3d 1305 (11th Cir. Mar. 2, 2004) oo... ececececsseeescesseessenseecceesscssceceesssseaes 30 Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7th Cir. 1999)oe22 Churchill Village, L.L.C. v. General Electric, et al., 361 F.3d 566 (9th Cir., San Francisco, Mar. 16, 2004) .00......cccscccsesssessscssscsseteeceeeees 20, 31 Croyden Associates v. Alleco, Inc., et al., 969 F.2d 675 (8th Cir. July 13, 1992) oocsesecseneeteeeeetsseeesesaeeee 5, 11, 29 Devlin v. Scardelletti, 536 U.S. 1 June 10, 2002)... eeeeessssssessesseenesseeenspassim Felzen v. Andreas, et al., 134 F.3d 873 (7th Cir. Jan. 21, 1998)...5,11 In re General American Life Ins. Co. Sales Practices Litig. v. General American Life Ins. Co., 302 F.3d 799 (8th Cir. Sept. 5, 2002)... ccccceeseseeeeees 30 Marinov. Ortiz, et al., 484 U.S. 301 (Jan. 13, 1988)... eeeecssesssessscsseseeeseese 8,9 TABLE OF AUTHORITIES Statutes, Codes and Rules Page California Code of Civil Procedure, Section 902 ..........cc.cccccssssssscccecescssserssscceceecess 28 California Rules of Court, Rulle 3.769(f).......ccescsscessssssssecsscessneessessesseeesecesseneeeseteesecenseees 13, 17, 18, 19, 28 Rule 8.276(a) ......cesescccssceceecscssessecsessecseesseceneessesesseesssessesssesesssserssssssssssesace 14 Federal Rules of Civil Procedure, Rule 23 uc... ccccssesseccsesessesccvecsssecceceecesesersececsaes 2 Texts, Treatises, Other Silver, Charles, Class Actions - Representative Proceedings, Encyclopedia ofLaw & Economics 194 (B. Bouckaert & G. De Geest, eds. 1999) ooo... eeeeessestessssstssseeseesseeesseens 22 vi INTRODUCTION Having read Class Counsel's AnswerBrief on the Merits (hereinafter "ABM"), Class Member-Appellant Muller (hereinafter "Class Member- Appellant")! is struck by the fact that rather than engage substantively with the arguments she hasraised in her Opening Brief on the Merits (hereinafter "0BM"), Class Counsel have instead chosen various types of obfuscation. These take the form ofmischaracterization of Class Member- Appellant's arguments; misstatements regarding the facts of the case and/or the law that applies; the assertion of legal principles that have no basis in class action law,andlast but not least ad hominem attacks against Class Member-Appellant and her counsel. After discounting all these distractions, the little of substance that remains is woefully unpersuasive. _ Class Counsel's AnswerBrief is doubly troubling in that this is not merely two sets of arguments passing in the night (so to speak). Class Counsel have chosen to employtactics of distraction and confusion rather than assist the Court in intelligently analyzing the issues involvedin this appeal. Such tactics should not be acceptable at any level of the judicial process, but to raise such arguments before our Supreme Court is particularly inappropriate. It is strikingly disrespectful to a process that culls only 70 cases out of 7,000 requests for review. This Court should make sure that such tactics do not go unremarked. 1 Class Counsel repeatedly refer to Class Member-Appellant Muller as "Petitioner" in their AnswerBrief on the Merits. As the appellation "Petitioner" is applicable to the Petition for Review, Ms. Muller will be referred to as "Class Member-Appellant" for the purposes of this Reply Brief on the Merits. ARGUMENT I. CLASS COUNSEL'S CLAIM THAT CLASS MEMBER- APPELLANT HAS NOT PROVIDED ANY REASONS TO OVERRULE THIS COURT'S DECISION IN EGGERT IS INCREDULOUS Class Counsel's assertion that Class Member-Appellant "has not provided this Court with any reason to overturn Eggert" [Eggert v. Pacific States Savings andLoan Co., et al., 20 Cal.2d 199 (Apr. 21, 1942] (ABM at 1) is indicative of the consistent lack of credibility of the arguments presented throughouttheir brief. It is simply ludicrousin light of ArgumentsI, II, Il, IV, and VI, at pages 14-29 and 34-39 of Appellant's Opening Briefon the Merits, which specifically discuss numerous reasons why this Court should reconsider and then overrule Eggert andits progeny, namely Hernandez, et al.; Francesca Muller v. Restoration Hardware, Inc., 245 Cal.App.4th 651 [199 Cal.Rptr.3d 719], 2016 Cal.App. LEXIS 185 (4th App. Dist., Div. 1, Mar. 14, 2016) (hereinafter "Restoration Hardware decision"). In order to demonstrate the fatuousness of this assertion, Class Member-Appellant recapitulates those reasons here. A. It Is Appropriate to Reconsider the 75-Year-Old Eggert Decision. This Court's 75-year-old decision in Eggert is a remnant of a bygone era. (See OBM discussion at 14.) Eggert does not reflect modern class action practice. It is a relic of California practice from 75 years ago. In light of the significant changes in California class action practice, ushered in by the 1966 federal revision ofRule 23 and particularly as a result of subsequent California appellate court decisions, the question ofthe necessity for intervention by unnamed class members,reflected by this - Court's 1942 Eggert decision, should be reconsidered andofficially abandoned. B. Eggert Did Not Discuss the Public Policy Implicationsof Its Decision. Eggert is a two-page decisionbereft of any discussion ofpolicy justifications to support a requirementofintervention by an unnamedclass member. (See OBMdiscussion at 15.) Eggert provides no discussion regarding whyintervention was advisable in 1942, muchless offer any principles that can guide policy development 75 years later as to why intervention is both "fair and efficient" (ABM 1, 24). C. Numerous California Appellate Courts Have Not Followed Eggert. Overthe past 42 years (with only one exception in addition to the instant case), eight California appellate courts have abandonedthe Eggert holding andcreatedin its place a modern approach to the appellate rights of unnamed class members. (See OBM discussion at 15, and ArgumentII, Section B, at page 6, infra.) D. Eggert and Restoration Hardware Do Not Reflect Good Public Policy. Contrary to Class Counsel's assertion that "[Eggert] is good policy...." (ABM 1), nothing couldbe further from the truth. Eight courts of appeal's decisions over the last 42 years since Eggert confirm that Class Counsel's assertion is without merit. Intervention adds nothing to whatis already required by virtue of the filing of formal objections and appearanceat the settlement fairness hearing. Intervention requires more work for an unnamedclass member- objector, but not only that, more work for class counsel, more work for defendants' counsel, more workfortrial court judges, and more workfor appellate court judges, all for no benefit. Such added work is unnecessary and providesnobenefit to any ofthe participants. E. Eggert Is Not Compatible to the Restoration Hardware Fact Pattern. Contrary to the assertion of the Restoration Hardware decision, Eggert is not on "all fours" (at 659) with the instant case. The failure to provide notice to the class wasthe issuein thetrial and appellate courts in Restoration Hardware, while the class in Eggert received notice. Asa result, the cases are not comparable. (See OBM discussion at 11-12, and ArgumentII, Section A, at page5, infra.) F. The Restoration Hardware Decision Is Contradicted by the Marsh Exception. Class Member-Appellant argued that Restoration Hardware's reliance on Marsh v. Mountain Zephyr, Inc., 43 Cal.App.4th 289 [50 Cal.Rptr.2d 493] (4th App. Dist., Div. 1, Mar. 6, 1996), to support its invocation of Eggertis totally misplaced. (See OBM discussion at 28-29.) Marsh acknowledges that an exception from formal intervention exists wherean individual is "boundbythe doctrine of res judicata" (as are unnamed class membersin class actions). In point of fact, the Restoration Hardware decision specifically acknowledges that unnamed class members whodo not opt out are "bound by the judgment"(at 654, 662). G. Restoration Hardware's Rejection of Trotsky Was Based on a Mistakenly Asserted Conflict in Federal Authority. Class Member-Appellant argued that contrary to the Restoration Hardware decision, federal jurisprudence is not in dispute on the issue of intervention. An intervention requirement was rejected for the entire federal system as a result of the United States Supreme Court decision in oa n Al e Devlin v. Scardelletti, 536 U.S. 1 (June 10, 2002). (See OBM discussion at 24-27.) The federal authorities relied on by the Restoration Hardware decision, Croyden Associates v. Alleco, Inc., et al., 969 F.2d 675 (8th Cir. July 13, 1992), and Felzen v. Andreas,et al., 134 F.3d 873 (7th Cir. Jan.21, 1998), were superseded by the 2002 Devlin decision. Unnamedclass membersin all circuits now have appellate status without the need to formally intervene. Il. CLASS COUNSEL FAIL TO ADDRESS NUMEROUS ARGUMENTSRAISED IN CLASS MEMBER-APPELLANT'S OPENING BRIEF ON THE MERITS A. Restoration Hardware Is Not on “All Fours" with Eggert. Class Counsel fail to address Class Member-Appellant's contention (OBM 11-12) that the Restoration Hardware court's conclusion at page 659 ofthe decision that "Eggert appears to be on ‘all fours' with the present action...." is wrong. Restoration Hardwareis not on all fours with Eggert. The Restoration Hardware decision simply ignores the elephant in the room: Notice. Notice, the principal issue below in both the trial and appellate courts was provided to unnamed class members in Eggert. The court also made an order,directedto plaintiff andall other personsinterested, to show cause whyit should not make an order fixing reasonable attorneys' fees. Notice of the order was published daily until the return date. Eggert, supra, 20 Cal.2d at 200 (emphasis added). B. An Overwhelming Number of Appellate Courts throughout California Have Not Followed Eggert. An overwhelming majority of California's courts of appeal have addressed the intervention issue as regards appellate standing for unnamed class members and foundthatan intervention requirement is contrary to public policy. (See OBM discussion at 17-23.) The Restoration Hardware decisionis contrary to eight prior California courts of appeal's decisions, commencing with the 1975 decision in Trotsky v. Los Angeles Federal Savings and Loan Ass‘n,et al., 48 Cal.App.3d 134 [121 Cal.Rptr. 637] (2d App.Dist., Div.5, May6, 1975), and continuing through the 2015 decision in Roos v. Honeywell International, Inc., 241 Cal.App.4th 1472 [194 Cal.Rptr.3d 735] (1st App. Dist., Div. 1, Nov. 10, 2015). Indeed, prior to the instant case, Eggert had been ignored in the modern period ofclass action litigation with the exception of one reported case, Sherman v. Allstate Ins. Co., 90 Cal.App.4th 121 [108 Cal-Rptr.2d 722] (2d App.Dist., Div. 7, June 25, 2001).2 Class Counsel did not address the merits of any of these cases, other than to urge they be disregardedas inconsistent with Eggert. (ABMat 24.) Thusly, Class Counsel's argument mandating intervention would require this Court to overrule at least eight other courts of appeal's decisions covering a forty-two year period. 2 Shepardizing Eggert discloses that only one published authority, Sherman v. Allstate Ins. Co., 90 Cal.App.4th 121 [108 Cal.Rptr.2d 722] (2d App. Dist., Div. 7, June 25, 2001), relied on Eggert to support a holding that an unnamed class memberin a class action needs to intervene in order to obtain appellate standing. In the First Appellate District: 1984 decision in Simons v. Horowitz, et al., 151 Cal.App.3d 834 [199 Cal.Rptr. 134] (1st App. Dist., Div.3, Feb. 7, 1984) (ignored by Restoration Hardware); 1990 decision in Rebney v. Wells Fargo Bank, 220 Cal.App.3d 1117 [269 Cal.Rptr. 844] (1st App.Dist., Div. 2, May 25, 1990) (ignored by Restoration Hardware); 2008 decision in Chavez v. Netflix, Inc., 162 Cal.App.4th 43 [75 Cal.Rptr.3d 413](1st App. Dist., Div. 1, Apr. 21, 2008) (ignored by Restoration Hardware); 2015 decision in Roos v. Honeywell International, Inc., 241 Cal.App.4th 1472 [194 Cal.Rptr.3d 735] (1st App. Dist., Div. 1, Nov. 10, 2015) (ignored by Restoration Hardware). In the Second Appellate District: 1975 decision in Trotsky v. Los Angeles Federal Savings andLoan Ass'n,et al., 48 Cal.App.3d 134 [121 Cal.Rptr. 637] (2d App. Dist., Div. 5, May 6, 1975). 2005 decision in Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Market, Inc. (hereinafter Mrs. Gooch), 127 Cal.App.4th 387 [25 Cal.Rptr.3d 514] (2d App. Dist. Mar. 7, 2005). In the Sixth Appellate District: 2001 decision in Wershba v. Apple Computer, 91 Cal.App.4th 224 [110 Cal.Rptr.2d 145] (6th App. Dist. July 31, 2001). And,an earlier Fourth Appellate District decision: e 2006 decision in Consumer Defense Group v. Rental Housing Industry Members, 137 Cal.App.4th 1185 [40 Cal.Rptr.3d 832] (4th App. Dist., Div. 3, Mar. 24, 2006) (ignored by Restoration Hardware). C. The Restoration Hardware Court Completely Misunderstoodthe Devlin and Ortiz Decisions. Class Counsel provide no counterarguments to Class Member- Appellant's argumentthat the Devlin, supra, and Marino v. Ortiz, et al., 484 U.S. 301 (Jan. 13, 1988), decisions were entirely misunderstood by the Restoration Hardware court. Class Member-Appellant argued in her Opening Brief on the Merits that the Restoration Hardware decision misconstrued the Devlin and Ortiz decisions: Thus, because Trotsky relies on federal authority that has been at least undermined by contrary federal authority ... we conclude the cases on which Muller relies should not be followed. Restoration Hardware, 245 Cal.App.4th at 661 and 662 (emphasis added). (See OBM discussion at 24-26.) Restoration Hardware holdsthatthere is a conflict in federal authority: Weacknowledgethe federal decisions, even from the United States Supreme Court (compare Marino v. Ortiz (1988) 484 U.S. 301 ... [nonparty class members whodid not seek to intervene may not appeal approval of settlement] with Devlin v. Scardelletti (2002) 536 U.S. 1 ... [reaching opposite conclusion without disapproving Marino]), are not uniform. Restoration Hardware, 245 Cal.App.4th at 662 n.6 (brackets in original; underline added). Class Member-Appellant pointed out that the Restoration Hardware decision characterized Marino v. Ortiz as involving "nonparty class members." This is factually incorrect. The Ortiz appellants had not been class members. (OBM 25.) That meant that the purported conflict of authority in fact did not exist, thereby completely undercutting Restoration Hardware's claim that the United States Supreme Court jurisprudence was not uniform. Class Counsel's only response to losing the key argumentfor a requirement for intervention: "But Devlin is not binding on this Court." (ABM 21), is a red herring. Class Member-Appellant never argued that this United States Supreme Court decision is binding on a California court. Class Counsel's associated commentwasa further deflection: The appellate court did not commit any error by considering the policies articulated in federal court decisions pre-dating Devlin. (ABM 21.) The error of the Restoration Hardware court had nothing to do with merely "considering the policies" that predate Devlin. Class Counselfailed to counter Appellant's arguments that the Restoration Hardware court did commiterror by: (i) citing pre-Deviin cases as federal authority, despite their having been overruled by Devlin, and (ii) representing the holdings in Devlin and Ortiz as not being uniform. D. Class Counsel Provided No Counterargument to Class Member- Appellant's Refutation of the Purported Benefits of Intervention. Class Counsel failed to respondto the refutations ofRestoration Hardware's claims of the benefits of intervention, in which Class Member- Appellant explained that these purported benefits were apocryphal: (1) the "putting the defendant on notice" benefit (OBM35); (2) the supposed "clear avenue " benefit (OBM 35-36); (3) the objections "could not be ignored" benefit (OBM 36). TIT. NOT CONTENT WITH FALSELY CLAIMING THAT CLASS MEMBER-APPELLANT PROVIDED NO REASONS TO OVERTURN EGGERT, CLASS COUNSEL RELY ON ADDITIONAL DISTRACTIONS The vast majority of Class Counsel's Answer Brief on the Merits is composed of falsehoods, irrelevancies, and, surprisingly, entirely fabricated law. ArgumentIII below will attemptto identify, catalog, and respond to each of these distractions. A. Class Counsel Invented Their Own Legal Requirements for Class Actions. 1. Class Counseloffer a striking numberofrepetitious claims that in order to appeal, objecting class members either should be required — or are required — to becomerepresentative plaintiffs for the class with fiduciary responsibilities. Such claims are not merely irrelevant to the issue before this Court; they have been unknownto class action case law jurisprudenceforat least the last 42 years: | Allowing class members to appeal a class judgment without committing to representthe class.... (ABM 10.) But an unnamedclass membershould not, merely by virtue of being in the class, have a right to appeal that is not tethered to any fiduciary duty to the class. (ABM 13.) Petitioner did not ask to be nameda class representative, or demonstrate any willingness to take on the responsibilities and risks of a class representative. (ABM 9.) The requirements for a representative class plaintiff and fiduciary are completely different from those for intervention to obtain 10 party status — they have nothing to do with each other. Class Counsel are conflating intervention by an individual unnamed class memberto obtain appellate status with a representative plaintiff's responsibility to represent the entire class. Intervention has nothing to do with class representation or fiduciary duties to the class. Someoneintervenes merely to get party status, not to replace the representative plaintiff or become an additional representative plaintiff. A class member's right to appeal is an individualright (whethersheis raising the objection for herself only, for herself and the class, or just for the class). It is simply unrelated to a legal obligation to advancethe interests of unnamed class members generally. Even if unnamed class members were required to intervene, that still would have nothing to do with a class representative with fiduciary obligations. Finally, Eggertitself, as well as Croyden Associates, supra, and Felzen v. Andreas, supra, says nothing about an unnamedclass memberacting as a class representative fiduciary who promotestheclass's interests. While Class Counsel repeatedly argue these erroneous concepts in their Answering Brief, repeating them multiple times does not make them valid: Requiring an objecting class member to becomea party also helps safeguard the integrity of the class action device by coupling the right to appeal with the responsibilities to the class intended to be borne by a namedplaintiff. Divorcing the responsibilities of a namedplaintiff from the right to appeal... (ABM2.) Requiring an objector to be a party means she would haveto take on someofthe risks that class representatives mustbear. (ABM 12.) 11 If Petitioner were truly interested in the best interests of the class, she would have soughtto intervene and been willing to take on the responsibilities of a class representative. She did not. She has no standing to appeal. (ABMat 16.) [O]bjecting class members who makea credible showingthat in pursuing their objections they intend to act and are capable of acting on behalf of and in the interest ofall class members... (ABMat2.) There is no legal basis for these arguments. They constitute a radical attempt to change the substantive law ofclass actions. 2. Class Counsel's assertionthat: If an unnamed class memberdoesnot believe the settlement is in her best interest, she can opt out. (ABM 18),is not part of this case. As Class Member-Appellant argues herein, there was no opportunity to opt out because there was no settlement of the class's claims. Furthermore, Class Counsel's assertion is wildly inconsistent with their arguments on one-wayintervention based on Fireside Bank v. Superior Court ofSanta Clara Co., et al., 40 Cal.4th 1069 [56 Cal.Rptr.3d 861] (Apr. 16, 2007) (ABM 16). The whole pointofthat case is that class members musteither opt out or be bound by the judgment, before the class claims have been adjudicated. On June 4, 2013, the following undated "Notice of Pendency of Class Action" was e-mailed to Class Member Muller: Ifyou are a memberofthe Class, you caneitherstay in the lawsuit and receive any benefits that the Class may receive or you can ask to be excluded from the Class. The last day to postmark a request for exclusion from the Class is August 3, 2013. 12 The opt-out opportunity thus occurred in August 2013, before thetrial court | made any determination on the merits ofthe class's claims in March of 2014 (OBM 7-8) and before any settlement was reached on the attorneys' fee issue in July 2014. (See pages 17-18, infra.) B. Class Counsel Make NumerousFactually Incorrect Assertions and Arguments. 1. Contrary to Class Counsel's assertions, it is not true that Eggert "is not only the existing law in California" (ABM 1) but "is a critical componentof California law" (ABM 24) that "protects the fairness and efficiency of class actions") (ABM 10). Eggert is not, practically speaking, the existing law in California. Becauseit is not being applied anywhere (see ArgumentII, Section B, supra), it certainly cannot be critical component of California law and cannot protect the fairness andefficiency of the class action mechanism. Forty-two yearsof class action jurisprudencesince Trotsky confirm this! Quite simply, Eggert has been ignored by generations of California appellate courts until it was resurrected by a Fourth Appellate District Court, Division Onepanel, in the Restoration Hardware decision. 2. Class Counsel's assertion: "An intervention requirement requires objectors to maketheir best caseto thetrial court first." (ABM2), creates the false implication that existing class action procedures are inadequate. Under ubiquitous current class action practices in both and federal and state courts, class members who wish to object must maketheir "bestcaseto thetrial court" in a written pleading prior to the settlement fairness hearingthatlists all their supporting reasons for any objections made. See California Rules of Court (CRC), Rule 3.769(f), Notice to Class of Final Approval Hearing,as typical of this requirement: 13 If the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing Written objections to it and in arranging to appearat the settlement hearing and state any objections to the proposed settlement. (Emphasis added.) Intervention pleadings would add nothingto this primary obligation and would provide no additional benefit to anyone involved: the class members,class counsel, defendants' counsel, or the judiciary. At best, it wouldbe repetitive exercise, and at worst it would multiply the proceedings and thusly the time and expenseto all concerned. 3. Class Counsel complain that appeal without intervention “imposesno costs or consequencesforfrivolous appeals." (ABM 13.) This assertion is simply untrue. There is already a mechanism in place to combatfrivolous appellate litigation. It is a motion before the appellate court asking that the appeal be sanctioned on groundsoffrivolousness. Under California Rules of Court, Rule 8.276(a), sanctions can be awarded for the taking of a frivolous appeal: On motion of a party or its own motion, a Court of Appeal may imposesanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: (1) Taking a frivolous appeal... 4, Although Class Counselargue that the reasoning of Trotsky "and its progeny" (ABM 24) should berejected, several of the cases identified by Class Member-Appellant as rejecting the need for intervention by unnamed class members are not "progeny of Trotsky." Several do not mention Trotsky at all. (See OBM discussion at 16.) 14 For example, Simons, supra, relies on state law and cases other than Trotsky, and federal authorities other than thoserelied on by Trotsky as well as public policy. "Absent class membersare'parties' for purposes of being boundbythe judgment... and having standingto appeal from decisions and object to settlements." (2 Newberg, supra, Rights and Obligations of Absent Class Members, § 2830, p. 1260.) As a memberofthat class, Horowitz was an aggrieved party to the action. Under California law, any party aggrieved may appeal an adverse judgment. (Code Civ. Proc., § 902.) Horowitz therefore did not need to obtain "permission"to intervene, and could simply appealthe trial court's judgmentby filing a notice of appeal. Simons, supra, 151 Cal.App.3d at 843. C. Class Counsel Fill Their Answer Brief with Flatly Irrelevant and/or Misleading Assertions and Arguments. 1. Class Counsel accused Class Member-Appellant of "failing even to file a written objection before the hearing on attorney fees." (ABM 2, 15.) The accusationis both irrelevant to the issue before this Court — whether she had standing to appeal — as well as misleading. Becausethe settling parties and the trial court had failed to provide notice of the fee hearing to class members, there was no procedure in place for the filing of objections. . 2. Class Counsel's accusation that Class Member-Appellant "remained on the sidelines throughoutthelitigation..." (ABM 2, 17), again is both irrelevant as to whether she has standing to appealand,in point of fact, untrue. Class Memberdid not remain on the sidelines. She entered an appearanceas directed bythe parties' Notice of Pendency. (OBM 6,7.) 15 3. Class Counsel's assertion that "Petitioner was free to voice any concerns aboutthe claims processto thetrial court." (ABM 17-18; emphasis added), is again both irrelevant and misleading. In the first place, what Class Member-Appellant could have done before the trial court has nothing to do with the issue of her standing to appeal. In addition, the assertion is misleading because the "claims process" (ABM 18) is not and never has been a point of contention in this case. Finally, the terminology "free to voice any concerns"is additionally an attempt to sidestep the fact that neither Class Member- Appellant nor unnamed class members generally were provided with a formal procedure to object to Class Counsel's attorneys' fee request before the trial court. In other words, class membersare "free to voice concerns" about claims, but are not able to formally object to the amountof Class Counsel's attorneys' fee request. 4. Class Counsel's assertion that "The attorney fee award was not negotiated as part of a settlement on the merits." (ABM 6),is irrelevant to the issue of Class Member-Appellant's appellate standing. It is in fact a straw man argument. Class Member-Appellant never claimed that the amountof the fee was "negotiated as part of the settlement on the merits." The merits of the class's claims have never been an issue — those claims were decided by the trial court. 5. Theassertion that "Petitioner made no attempt to makea clear record below of her objections." (ABM 15), is again irrelevant to the issue before this Court — the dismissal of Class Member-Appellant's appeal by the court of appeal on the ground ofstanding. Furthermore, the statement is untrue. Class Member- Appellant filed a Request for Clarification and attended a fairness hearing in which Class Counsel's attorneys' fee motion was presented (OBM 9). 16 Herwritten pleading and the colloquy between Class Member-Appellant's counsel, Class Counsel, and thetrial court judge at the hearing provided a clear record regarding her arguments. (OBM 13; see also Rep. AppealTr. 9/5/14, Vol. 1, generally.) 6. Class Counsel offer a strategically inaccurate chronology of -their fee request that is irrelevant to the matter on appeal (see OBM 8-9). Class Counselfiled a motion for attorneys' fees in the amount of $9,103,087.50, or 25% ofthe $36,412,350.00 judgment amount. Defendant agreed not to oppose a request up to this amount. (ABM 5, citation omitted.) This statement conflicts with Class Counsel's declaration in support of their fee request in which they describe how they had directly negotiated a settlement of their fee request with the Defendant before, not after, Class Counsel filed their motion in the trial court: After meeting and conferring at arms-length with Restoration Hardware to avoid further litigation on this issue, Class Counsel agreed to request only 25% of the common fund and Restoration Hardware agreed not to opposethis request. (See OBM discussionat 8-9 [Decl. James R. Patterson in Support of Mot. for an Award ofAttorneys' Fees,etc., filed 7/18/14 (Respondent's Appendix at 122:12-14 )].) This issue is not relevant to the issue before this Court. It is howeverhighly relevant to the appeal below because there wasa settlement privately negotiated (in Class Counsel's own words, the so-called "clear sailing concession">)priorto their filing their motion for attorneys’fees. Appellant argued that a settlement of the attorneys’ fee issue triggered the notice requirements of California Rules of Court, Rule 3.769(f). 3 "Andthe "clearsailing" agreement was nothing more than a concession by Class Counsel...." (ABM 6). 17 7. Class Counsel's assertion regarding the so-called "clear sailing" agreement: A clear sailing agreement was reachedafter thetrial court determined the merits ofthe class members' claims through an adversarial process (ABMat 6; emphasisin original), is irrelevant to the issue before this Court, and it is misleading as well. The significant legal issue is that the agreement was reached before Class Counselfiled their motion for attorneys' fees (see CRC, Rule 3.769(f)). 8. Class Counsel's assertion that: Appellant did not object to the Final Statement of Decision or the proposed claimsprocess. (ABM4)is entirely irrelevant. (a) In the first place, there is no discussion ofwhythis fact is significant or relevant to any issue before any court. (b) Beyondthat, there is no evidence in the record that the Final Statement of Decision, entered July 3, 2014, was provided to anyone other than the settling parties. (c) Class Member-Appellant never raised any concerns about the claims process, making this point a red herring. (d) Finally, there is no recognition that Class Member- Appellant did in fact object to the arguably more important proposed Final Judgment. 9. Class Counsel's assertion that: Petitioner should not be entitled to a "do over"at the end ofthe litigation because she prefers a different result. (ABMat 20) is again notonly irrelevant to any issue before this Court on the question of appellate standing but entirely irrelevant. 18 To beclear,it is not true that Class Member-Appellant is seeking a "different result" (ABM 20) as regardsthe class's claims. What she wants is compliance with due process and CRC Rule 3.769(f). 10. Class Counsel's assertion that: The intervention requirement doesnot limit in any way a Class member's important right to appear and object~ in the trial court. (ABMat 15), is irrelevant, misleading, and a straw man. Class Memberhas never argued that intervention would limit a class member's right to appear and object in the trial court. The issue between the parties to this appeal has nothing to do with class member status "in the trial court." The issuebefore the court of appeal was whether class members were given proper notice of the amount ofthe fee sought by their counsel and the ability to object to the amount sought. An intervention requirementis unrelated to that question. The issue before this Court is the legal issue of whether intervention is necessary to secure a right of appeal. 11. Class Counsel offer an extended discussion of the implications ofFireside Bank v. The Superior Court ofSanta Clara Co., supra. Fireside, however, addressesa sit-on-the-sidelines-and-wait-for- the-court-to-rule-on-the-merits problem, whichis notat all applicable to the facts of either RestorationHardware or Eggert, supra. (ABM 17.) Because the Restoration Hardware class had beencertified and the opt-out period had closed long before the attorneys’ fee determination(the issue on appeal below), Fireside Bankis inapplicable and entirely irrelevant to Restoration Hardware’'s appellate standing issue. 12. Class Counsel's response to Class Member-Appellant's argumentregarding Jasmine Networks, Inc. v. The Superior Court ofSanta 19 Clara Co., 180 Cal.App.4th 980 [103 Cal.Rptr.3d 426] (6th App. Dist. Dec. 29, 2009): California courts are not bound by the standing requirements under Article III of the U.S. Constitution.... (ABMat26)is, of course, true and beside the point. Class Member-Appellant raised the issue (OBM 45, 46) to offer this Court an opportunity to clarify a subtle question relating to the use of a "standing" legal analysis as discussed in the Restoration Hardware decision. Several courts (Jasmine Networks in California (see OBM discussion 45-46); the U.S. Supreme Court in Devlin v. Scardelletti, supra; and the Ninth Circuit in Churchill Village, L.L.C. v. General Electric, etal., 361 F.3d 566 (9th Cir., San Francisco, Mar. 16, 2004)) have noted that "standing"is not the correct method of legal analysis for the issue in the instant appeal. But the issue is not precisely one of standing. As the Supreme Court has noted, neither Article III nor prudential standing is implicated by the efforts of non- intervening objectors to appeal class action settlements. Churchill Village at 572. While Class Counsel are clearly uninterested in the issue, Class Member-Appellant hopesthat the Court will find Jasmine's observation worthy of consideration. D. Without Offering the Slightest Bit of Evidence in Support Thereof, Class Counsel Assert Problems with the Class Action Mechanism That Purportedly Justify Intervention by Unnamed Class Members. Appeals of class action decisions by unnamed class members have been occurring for the past 42 years without class members havingfirst 20 intervened. Courts and the class action mechanism itself have gotten along just fine without Eggert and its requirementfor intervention. Eggert has not been actively appliedto class actions for generations, makingthe raft of "problems" Class Counsel claim intervention purportedly solves completely fictitious. Noneofthe parade of horribles cited by Class Counsel have ever been foundto present a serious enough obstacle to justice that anything was doneto restrict such appeals — until now. The burden to demonstrate the existence of a problem — or problems — is on Class Counsel, and they did not provide any evidenceor legal authority to meet that burden. 1. Class Counselassert that Eggert is necessary to prevent professional objectors' frivolous appeals. Allowing class membersto appeal a class judgment without committing to represent the class creates an incentive for professional objectors to file frivolous . appeals. (ABMat 10.) (a) Class Counsel provide neither evidence of the prevalence of frivolous appeals, nor evidence that they represent a significant problem. (ABM 10.) Nonetheless, they ask this Court to overturn 42 years of appellate precedent to solve non-existent problems. (b) Class Counsel provide no explanation ofhow the requirement of intervention would result in the actual thwarting of professional objectors. Their use of the very term "professional" implies that such objectors would not be hindered by a requirement ofintervention. Arguably, a motion for intervention, along with the status of a representative plaintiff, would play right into the hands of the very professional objectors Class Counsel are worried about. 2. Class Counsel assert that Eggert is needed to protect the fairness and efficiency ofclass actions. (ABM 10.) 21 In making this argument, Class Counsel offer no evidence to support an allegation that the class action mechanismis troubled by problemsofeither fairness or efficiency. More important than the lack of evidence, though, is that Class Counsel haveit exactly backwards. It is the right of unnamed class membersto appealtrial court rulings that is a crucial procedural protection to ensure the integrity and proper functioning ofthe class action mechanism. As noted by Seventh Circuit Court of Appeals Judge Frank H. Easterbrook and by Professor Charles Silver, appellate review is an important protection for the proper functioning of the class action mechanism (not the existence of a "fiduciary court," a "fiduciary counsel," and a "fiduciary class representative" (see ABM10)). Becausea large proportion of class actions settl{e] or [are] resolved in a waythat overtakes procedural matters, some fundamentalissues aboutclass actions are poorly developed.... But, the more fundamental the question and the greater the likelihood that it will escape effective disposition at the end of the case, the more appropriate is an appeal.... Blair v. Equifax Check Services, Inc., 181 F.3d 832, 835 (7th Cir. 1999) (emphasis added). Becausetrial judges who orchestrate settlements can be expected to approve them, the primary monitors of such settlements must [be] appellate judges. Charles Silver, Class Actions - Representative Proceedings, Encyclopedia ofLaw & Economics 194, 216 (B. Bouckaert & G. De Geest, eds. 1999) (emphasis added). 3. Class Counsel argue that without intervention, "professional objectors" will discouragethe filing of class actions. [Professional objectors create a disincentive for class counsel to take on such risky matters. ( ABMat11, citation omitted) 22 Thereis no evidence in this record that the current state of the ~ law, in which unnamed class members mayappealclass action decisions withoutfirst intervening, producesinsufficient encouragementfor attorneys to file class actions. Class Counsel's assertion: Class Counsel have spent more than $100,000 in costs and time.... (ABM2) is apparently intended to support an argumentthatthe cost of defending an appealwill discourage attorneys from pursuingclass actions. They conveniently fail to mention the importance ofthe right of appeal to our system ofjustice and the encouragementofthe over $9 million attorneys' fee, which they sought and receivedin this case. 4. Class Counselassert that allowing unnamed class membersto appeal would threaten the manageability of class actions. (ABM 16-18.) Aliowing an unnamed class memberto appeal without intervening transformsa class action from a case commencedandlitigated by a representative party in the trial court, to a case litigated by as manyofthe unnamed class members whochooseto appeal in the appellate court. (ABM16.) Again, there is no evidence in the record of any manageability problemsin class actions. Appeals of class action decisions by unnamed class members have been occurring for the past 42 years without class members havingfirst intervened. Courts and the class action mechanism itself have gotten along just fine without Eggert and its requirements for intervention. 23 E. Class Counsel's AdHominem Attack On Class Member- Appellant and Her CounselIs Inappropriate in a Brief before This Court Instead of offering substantive argument, Class Counsel's Answer Brief descends into extensive ad hominem attack on Class Member- Appellant and her counsel (ABM at 2, 10-11). These attacks seem intended to deflect the Court's attention away from the weak arguments in their Answer. Such attacks are particularly out of place in this Court since Class Member-Appellanthasraised an issue that this Court has acknowledgedis sufficiently important to warrant review. 1. Class Counsel accuse Class Member-Appellant and her counsel of wasting the Court's time. They have nowfiled a frivolous appeal.... (ABMat2.) (a) Class Counsel never arguedto thetrial court that the issues raised by Class Member-Appellant were frivolous. Furthermore, the trial court's discussion of the issues raised by Class Member-Appellant in no way suggests that thecourt viewed any of those issues as frivolous. (See Rep. Appeal Tx., 9/5/14, Vol. 1.) (b) Class Counsel never asserted before the court of appeal that Class Member-Appellant's issues on appeal werefrivolous. (c) Restoration Hardware's reversal of 42 years of case law is a matter of serious substance. This challenge to a holding ofthat significance can hardly be considered frivolous. (d) The fact that this Court granted review makesthe instant case per se non-frivolous. By using the phrase "They have now filed a frivolous appeal" (ABM 2; emphasis added), Class Counsel appear to challenge this Court for accepting the matter for review. Such an argument is completely out ofplace. 24 2. Class Counsel's impugning of Class Member-Appellant's motives: | Thelatter [proceeding in an effort to extract a fee by lodging a generic and unhelpful protest] is exactly what is happening inthis case.... (ABM at2), is entirely without evidentiary support. It is merely a scurrilous accusation. Class Member-Appellant's presence in this Court belies that argument. 3. Class Counselfalsely assert that: Petitioner and her counsel — a well-known "professional objector — (ABMat2.) No evidence has been introduced into the record to support such an assertion. Again, Class Member-Appellant's presence in this Court belies such a claim. 4. Class Counsel's assertion that Class Member-Appellant and counsel: [U]ndoubtedly would have objected to [a settlement] regardless of the terms. (ABM2),is: (a) irrelevant to the issue of whether Class Member- Appellant had standing before the court of appeal; | (b) irrelevant to the facts of the case in the court of appeal; (c) impossible to substantiate, as well as being (d) animproper ad hominem attack on Class Member- Appellant and her counsel. These ad hominem attacks should be strongly admonished by this Court because, among other reasons, Class Member-Appellantis 25 seeking to enforce fundamental due process procedures to protect unnamed class membersin class actions. IV. THE REMAINING ARGUMENTSIN CLASS COUNSEL'S ANSWERBRIEF ARE UNCOMPELLING This Court's question on review is: Must an unnamed class member intervene in the litigation in order to have standing to appeal? The remaining arguments in Class Counsel's Answer Briefoffer little of substanceto justify intervention. A. This Court Should Follow the Class Action Procedures of Arkansas, Not Its Own Courts of Appeal or the United States Supreme Court. Class Counsel remarkably propose that this Court follow the lead of the Arkansas Supreme Court and ignore eight decisions of various California appellate courts, as well as the United States Supreme Court: Other courts have declined to apply Devlin to state class action procedures. In Ballard v. Advance Am. (2002) 349 Ark. 545, 549 ... the Arkansas Supreme Court rejected Devlin and held that intervention is a prerequisite for appeal in Arkansascourts: "(This court's opinion in Habermanv. Lisle, 318 Ark. 177 ... continues to be the controlling precedent in Arkansas." (ABM 23, citing Ballard v. Advance America, et al., 349 Ark. 543, 549, 79 S.W.3d 835, 2002 Ark. LEXIS 402 (Supreme Ct. July 5, 2002).) Class Counsel provide no convincing argument as to why this Court should reject numerous California appellate court decisions and federal procedural rules, none of which require intervention, and follow instead the 26 jurisprudence of Arkansas. Indeed, Arkansasis an odd choice as a model for California. B. Trotsky and Its Progeny Should Be Disregarded. The Trotsky line of cases answers the Court's question with a clear "No." Class Counsel's response, on the other hand, is "Yes." Class Counsel then go onto assert their argument for disregarding Trotsky andits progeny: "Eggert Governs Here": Because an appellate court in California cannot overturn a Supreme Court decision, these decisions must be disregarded. This Court is the only court with the authority to overturn Eggert. (ABMat24;citation omitted.) While the deference is laudable, it fails to acknowledgethatthis Court has implicitly asked the parties to argue whether Eggert shouldbe overturned. Class Counsel have little to offer beyond vague assertions of protecting the fairness and integrity of the class action mechanism, arguments which had been unpersuasive to modern-day California and federal appellate courts. Class Member-Appellant has previously disposed of Class Counsel's public policy benefits of intervention argument. (See OBMdiscussionat 34-37.) C. Class Member-Appellant Should Either Intervene or Be Bound By the Judgment. Class Counsel argue a false set of options: She should either moveto intervene if she believes the class is not adequately represented, or accept the judgment as a silent beneficiary of the work of class counsel and the class representatives. (ABM 17.) 27 This is not the way the class action mechanism works. Thepoint is that moving to intervene adds nothing but unnecessary work. Intervention accomplishes nothing more — other than the generation of more paperwork and attorneys' fees — than is already required by California Rule of Court, Rule 3.769(f), which is the obligation to file an objection and appear at a fairness hearing. . In Restoration Hardware's own words, unnamed class members who do not opt out are "boundby the judgment" (Restoration Hardware decision at 662). Class Counsel have turnedthe issue upside down.Itis precisely because a class memberis boundby the judgmentthat they have the right to appeal. D. The Res Judicata Exception to Party Status under Code of Civil Procedure Section 902 Should Not Apply in Class Actions. This section title is a direct quote of the section title of the Answer Brief in which Class Counsel ask that the Marsh v. Mountain Zephyr, supra, "exception" be sharply limited. (ABM 19.) In so asking, Class. Counsel are acknowledging that the Marsh exception is current law for class actions. The burden is on them to justify a changein that status quo. Appellant asserted (OBM 29) that Restoration Hardware had failed to note the exception in Marsh: One exception to the "party of record" requirementexists in cases where a judgmentor order hasa res judicata effect on a nonparty. Marsh, supra, 43 Cal.App.4th at 295. Class Counsel argue that this holding ofMarsh should not apply to class actions: But following Petitioner's argument, the exception would swallow the rule in class actions, defeating the representative nature of class actions.... The [Marsh] court found standing, however, because Code of Civil Procedure section 2034, subdivision (i), contemplated 28 that an expert witness would have standing to appeal an order setting an expert witness fee. (ABM 19, relying on Marsh, supra at 295-96.) It is problematic for Class Counsel's argument, however, that even the Restoration Hardware court cited Marsh as an authority applicable to class actions. (See Restoration Hardware decision at 657.) In short, Class Counsel havefailed to justify why the fact pattern, out of which the Marsh exception arose, should not be generalized to apply to class actions when Restoration Hardware generalized Marsh. Finally, Class Counsel's overheated rhetoric as to the Marsh exception "defeating the representative nature of class actions" (ABM 19) comesstraight out ofRestoration Hardware regarding its reference to Croyden Associates: Croyden pointed out that class actions would become unmanageable and unproductive if each class member could individually appeal. (Restoration Hardware decision at 662, citing Croyden Associates, supra, 969 F.2d at 678.) - Croyden represents one pole of a controversy in the federal circuits as to the appeal rights of unnamed class members. That controversy was resolved over a decade ago by the U. S. Supreme Court in Devlin v. Scardelletti, 536 U.S. 1, which overturned the Croyden line of cases. Unnamedclass membersin all circuits have been able to appeal without intervening since 2002. Amazingly (from the Croyden viewpoint), no crisis emerged as to the manageability of class actions. No evidence exists in the record that the current state of the law in California, in which unnamed class members can appeal without intervening, is in any way problematic. Class Counsel have not mettheir burden to justify a change in the law regarding the Marsh exception. 29 E. Class Counsel Exaggerate the Legal Significance of Post-Devlin Court Decisions. Following Devlin, courts have questionedits application to cases where class membershavethe right to opt out. (ABM 23.) Even though somecourts have questioned Devlin, none has sought to overruleit. [W]e question whether Devilin's holding applies to opt-out class actionscertified under Rule 23(b)(3). Though webelieve the limited reading ofDevlin has considerable merit, we need notfinally resolve the debate because, as it happens, Henderson's case has become moot.... In re General American Life Ins. Co. Sales Practices Litig. v. General AmericanLife Ins. Co., 302 F.3d 799, 800 (8th Cir. Sept. 5, 2002). Because the Objectors would not qualify as parties even under the most permissive possible reading ofDevlin, we decline to determine whether and whenDevlin may apply outside of the mandatory class action context or to pass judgment on Karaha Bodasand Plain. Weneed not determine the precise breadth ofDevlin to see that the Objectors clearly stretch it too far. AAL High Yield Bond Fund a series ofDelaware Group Income Funds, etc., v. Banc ofAmerica Sec. LLC,etc., et al., 361 F.3d 1305, 1311 (11th Cir. Mar. 2, 2004). Nocourt has ever rejected the holding in Devlin for that or any other reason. No court has refused to apply it to a class action in which class members were permitted to opt out. Churchill urges that we read Devlin narrowly. There, the Court relied on the fact that Devlin was unable to opt out of the Rule 23(b)(1) class. Here, by contrast, the Beckwith objectors may exclude themselves from the settlement and thus preservetheir right to seek relief from GE.... [T]he 30 settlement will effectively bind the objectors. They therefore occupyprecisely the status the Devlin Court sought to protect. See [Devlin, 536 U.S. at 10] ("What is most importantto this case is that nonnamed class membersare partiesto the proceedingsin the sense ofbeing bound bythesettlement. It is this feature of class actionlitigation that requires that class membersbe allowed to appeal the approval of a settlement when they have objected at the fairness hearing."). Churchill Village, L.L.C. v. General Electric, et al., 361 F.3d 566, 572 (9th Cir., San Francisco, Cal., Mar. 16, 2004), citing Devlin, supra, 536 U.S.at 10 (emphasis added). V. EVENIF THIS COURT REAFFIRMS EGGERT, THE COURT OF APPEAL'S DISMISSAL OF CLASS MEMBER- APPELLANT'S APPEAL WAS IMPROPER Evenifthis Court were to hold that intervention is a necessary prerequisite for unnamedclass membersin class actions to secure appellate standing, the court of appeal's decision to dismiss this appeal for lack of standing was improperunder the unique facts and circumstancesofthis case. A. Class Member-Appellant Took Steps to Becomea Party. Class Counsel's assertions: Petitioner did not take any steps to becomea party to the record. (ABMat 9), is untrue. Petitioner remained on the sidelines throughoutthe litigation, (ABMat 17), is untrue. 31 Class Member-Appellant's counsel followed the instructions that the parties gave Ms. Mullerin their notice. If you do not request exclusion, you may enter an appearancein the matter through counsel, but are not required to do so. (The full long-form Notice of Pendency of Class Action can be referenced at Appellant's Appendixat 2.) Thosesteps created sufficient on-the-record presence to be entitled to appellate party status. The Notice of Pendency did not identify any further conduct as required to fully participate in the litigation. B. The Legal Precedent at the Time of the Underlying Trial Court Case Did Not Require Unnamed Class Membersto Intervene. A Fourth Appellate District Court decision prior to Restoration Hardware had nointervention requirement. Consumer Defense Group v. Rental Housing Industry Members, 137 Cal.App.4th 1185 [40 Cal.Rptr.3d 832] (4th App. Dist., Div. 3, Mar. 24, 2006), justifies this appeal moving forward. This prior decision of the Fourth Appellate District establishes the reasonableness of Class Member-Appellant's belief:that intervention was not required. Special circumstances warrantthat this appeal be permitted to continue forward. Class Member-Appellant's actions were sufficient under the rules that existed at the time to permit this appeal to continue forward. The Restoration Hardware court reversed the rulings of eight different appellate decisions over 42 years, including its own Fourth District (albeit from a different division), and created new procedural hurdles for unnamed class members. To dismiss the appealas a result of an unforeseeable, abrupt, and radical shift in the law would be inequitable. 32 CONCLUSION The AnswerBrief on the Merits fails to present any significant arguments for requiring unnamed class membersto intervenein order to have standing to appeal. Eggert should be overruled in favor of the Trotsky and Devlin lines ofcases. Asa point ofpersonal observation, because Class Counsel have personally attacked Class Member-Appellant's counsel, the question arises: what does Class Counsel think of practice before the California Supreme Court that they would include the kinds of arguments they have madein their Answer? Admittedly, Class Member-Appellant's counsel's umbrage maybe the result of having been taught the practice of law many yearsago according to mores that may no longer be relevant to modern practice. On the other hand, if Class Counsel's conduct is inappropriate, this Court should indicate its strong displeasure as suchtactics are, in this counsel's opinion, unworthyofthe profession of law and unworthy of this Honorable Court. Dated: February 28, 2017 Respectfully submitted, Lawrence W. scoStonbnary Attorney for Plaintiff Class Member and Appellant Petitioner Francesca Muller 33 CERTIFICATE OF WORD COUNT Counsel of Record herebycertifies that pursuant to Rule 8.504(d)(1) of the California Rules of Court, the attached Appellant Francesca Muller's Reply Brief on the Merits contains 8,390 words ofproportionally spaced Times New Roman 13-point type as recorded by the word countofthe Microsoft Office 2007 word processing system, and is in compliance with the type-volume limitations permitted by the rules of court. Counselrelies on the word count of the computer program usedto prepare this Reply Brief on the Merits. Dated: February 28, 2017 Arspemabs) Lawrence W. Schonbrun 34 CERTIFICATE OF SERVICE I declarethat: I am overthe age of 18 years and not party to the within action. I am employedin the law firm of Lawrence W. Schonbrun, whose business address is 86 Eucalyptus Road, Berkeley, California 94705, County of Alameda. On February 28, 2017, I caused to be served a copy ofthe following document: APPELLANT FRANCESCA MULLER'S REPLY BRIEF ON THE MERITS x__ by mail on the below-namedparties in said action, in accordance with CCP § 1013, by placing true and accurate copies thereofin a sealed envelope, with postage thereon fully prepaid, and depositing the samein the United States Mail in Alameda County, California, to the addressesset forth below: James R. Patterson, Esq. Allison Goddard, Esq. Patterson Law Group APC 402 W. Broadway, 29th Fl. San Diego, CA 92101 Tel: (619) 756-6990 Fax: (619) 756-6991 jim@pattersonlawgroup.com eli@pattersonlawgroup.com Attorneysfor PlaintiffClass David F. McDowell Jr., Esq. Purvi G.Patel, Esq. Morrison & Foerster LLP 707 Wilshire Blvd., Ste. 6000 Los Angeles, CA 90017 Tel: (213) 892-5200 Fax: (213) 892-5454 dmcdowell@mofo.com PPatel@mofo.com Attorneysfor Defendant Restoration Hardware, Inc. Gene J. Stonebarger, Esq. Stonebarger Law 75 Iron Point Circle, Ste. 145 Folsom, CA 95630 Tel: (916) 235-7140 Fax: (916) 235-7141 gstonebarger@stonebargerlaw.com Attorneysfor PlaintiffClass 35 Clerk, San Diego Superior Court Clerk, Court ofAppeal Central Div., County Courthouse Fourth Appellate District 220 W. Broadway, 3rd FI. 750 B Street, Ste. 300 San Diego, CA 92101 San Diego, CA 92101 I declare under penalty of perjury underthe lawsofthe State of California that the foregoingis true and correct. Executed on February 28, 2017, at Berkeley, California. SaacNnes Sandra Norris 36