Filed 11/17/22 Loudon v. DHSE CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

CLAYTON LOUDON,

Plaintiff and Respondent,

 v. 

DHSE, INC. et al.,

Defendants and Appellants.

 B322559

 (Riverside County

 Super. Ct. No.

 PSC1703855)

 ORDER MODIFYING 

 OPINION

 (NO CHANGE IN THE 

 APPELLATE JUDGMENT)

 

THE COURT: 

It is ordered that the opinion filed herein on November 16, 

2022 be modified as follows: 

At the top of page 2, counsel listing for Plaintiff and 

Respondent is changed from “GrahamHollis APC, Graham S.P. 

Hollis, Vilmarie Cordero, Nathan Reese; Irvine Law Group and 

Rod Bidgoli for Plaintiff and Respondent.” to: 
2

GrahamHollis APC, Graham S.P. Hollis, Vilmarie Cordero, 

Nathan Reese; Irvine Law Group, Rod Bidgoli; Irvine 

Bidgoli, P.C. and Rod Bidgoli for Plaintiff and Respondent. 

____________________

There is no change in the appellate judgment. 

____________________________________________________________

 PERLUSS, P. J. SEGAL, J. FEUER, J. 
Filed 11/16/22 Loudon v. DHSE CA2/7 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

CLAYTON LOUDON,

Plaintiff and Respondent,

 v.

DHSE, INC. et al.,

Defendants and Appellants.

B3225591

(Riverside County

Super. Ct. No.

PSC1703855)

 

APPEAL from an order of the Superior Court of Riverside

County, Sharon J. Waters, Judge. Dismissed.

The Law Offices of Timothy D. Murphy and Timothy D. 

Murphy for Defendants and Appellants. 

1

The California Supreme Court transferred this case from 

Division Two of the Fourth Appellate District to Division Seven of 

the Second Appellate District on August 24, 2022. The previously 

assigned appeal number was E075714.
2

GrahamHollis APC, Graham S.P. Hollis, Vilmarie Cordero, 

Nathan Reese; Irvine Law Group and Rod Bidgoli for Plaintiff 

and Respondent. 

__________________________

After the trial court approved the parties’ agreement to 

settle Clayton Loudon’s claim under the Labor Code Private 

Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2699 et seq.)

and entered judgment in the case, his joint employers DHSE, 

Inc., PSTPS, Inc., DHSL, LLC, DHSO, Inc., AACAL, Inc., 

ERS, LLC and Michael Bickford (collectively DHSE) moved to 

vacate the judgment. The court granted DHSE’s motion and 

vacated the judgment based on excusable neglect. Although no 

subsequent judgment or other final disposition has been entered 

in the case, DHSE appealed the order approving the PAGA 

settlement agreement. Concurrently with its opening brief, 

10 months after the order approving the PAGA settlement, 

DHSE also filed a petition for writ of mandate seeking review of 

that order. We dismiss the appeal as taken from a nonappealable 

order. In a separate order we summarily deny the writ petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. Loudon’s Action, the PAGA Settlement, and the Order 

Approving the Settlement and Entering Judgment

Loudon worked for DHSE as a nonexempt employee. 

Loudon alleged in his complaint that DHSE failed to pay him 

overtime compensation, did not adequately provide off-duty meal 

and rest periods and deducted various sums from his paycheck

without written authorization. Loudon asserted individual 

claims for various Labor Code violations and unfair business 

practices and a representative claim for civil penalties pursuant 

to PAGA. 
3

Following a full day of mediation the parties settled all 

claims alleged in Loudon’s complaint. After several months of 

further negotiation, the parties in August 2019 executed an 

Individual Settlement Agreement and Mutual Release of Claims 

and a Private Attorneys General Act Settlement Agreement and 

Limited Release of Claims. The PAGA settlement agreement

required DHSE to prepare a joint motion for court approval of the 

settlement. DHSE never prepared the joint motion. Instead, on 

January 2, 2020 DHSE filed an opposition to a motion to approve 

the settlement, even though no such motion was pending. At a 

January 15, 2020 status conference counsel for DHSE explained 

he “prepared that opposition anticipating that the motion would 

be forthcoming immediately . . . but no motion came.” Counsel 

agreed, absent a motion to approve the PAGA settlement 

agreement, there was nothing for the trial court to address.

Approximately six months later Loudon filed a motion to 

approve the PAGA settlement, arguing the agreement reflected a 

compromise of disputed claims and an award of attorney fees that 

were fair and reasonable. DHSE opposed the motion, asserting

the PAGA settlement agreement was illegal because it failed to 

allocate between “recoverable penalties and unrecoverable 

wages”; the complaint lacked specific joint employer allegations;

Loudon lacked standing to represent other “aggrieved employees” 

post-termination; the civil penalties were unjust and confiscatory;

and the attorney fees were excessive. Loudon filed a reply urging 

approval of the agreement.

Following a hearing on July 1, 2020 the trial court granted 

Loudon’s motion, finding the PAGA settlement to be fair, 

reasonable and adequate with respect to the underlying purposes 

of the PAGA statute. On July 16, 2020 the trial court issued an 
4

order granting Loudon’s motion to approve the PAGA settlement

and entered judgment resolving both the PAGA and individual 

claims in the case. The court reserved jurisdiction over the action 

and the parties “for the purposes of: (a) supervising the 

implementation, enforcement, construction, and interpretation of 

the PAGA Settlement and the Court’s Order Approving the 

PAGA Settlement; and (b) supervising distribution of amounts 

paid under this Settlement.” 

2. DHSE’s Motion To Vacate the Judgment and the Order 

Vacating Judgment

On July 28, 2020 DHSE filed a notice of intent to move for 

an order vacating the judgment. DHSE contended it had been

unaware a judgment had been entered and stated its preference 

that the case be dismissed with prejudice. At the hearing on the 

motion to vacate, counsel for DHSE conceded he had previously 

indicated entry of a judgment was acceptable, but claimed he had 

not consulted with his client and was unaware of the negative 

financial impact a judgment would have. Loudon opposed the 

motion, pointing to DHSE’s delays throughout the case. The trial 

court acknowledged Loudon’s concern and assured him, “[a]t any 

time defendants failed to make the payment, there is obviously 

your right to come in and obtain a judgment pursuant to 

settlement.” 

After taking the matter under submission, on September 3, 

2020 the trial court granted DHSE’s motion to vacate the 

judgment based on excusable neglect, ruling, “The order 

approving the PAGA settlement entered on July 16[,] 2020 

stands. Because the PAGA settlement calls for a series of 

payments to be made by defendants—dismissal at this time is not 

appropriate. Rather—dismissal should be entered only after 
5

defendants have fully complied with the settlement.” The court 

further ruled, “If defendants fail to make any payment in a 

timely fashion[] as called for in the Order Approving PAGA 

Settlement, plaintiff may seek entry of judgment pursuant to 

CCP Section 664.6 or pursue any other remedies available to 

him.”2

3. DHSE’s Appeal and Petition for Writ of Mandate

On September 11, 2020 DHSE filed its notice of appeal 

from the trial court’s “order approving settlement in the action 

captioned above, in favor of plaintiff CLAYTON LOUDON as an 

individual and as a PAGA representative” including “the court’s 

order dated July 1, 2020 approving settlement and the court’s 

order dated July 16, 2020 approving settlement.” DHSE attached

to the notice the order entered by the court on July 16, 2020. On 

its civil case information statement DHSE stated it was 

appealing the July 16, 2020 order pursuant to Code of Civil 

Procedure section 904.1, subdivision (a)(1), as a “final order 

disposing all issues.”3

In its opening brief DHSE asserted this court has 

jurisdiction to hear its appeal because the trial court’s order 

approving the PAGA settlement was a final order fully disposing 

of all issues in the case. DHSE argued the substance of an order 

2 On September 30, 2022 at this court’s request, the parties 

filed a joint status report indicating further proceedings in the 

trial court had been stayed and DHSE has made partial 

payments under the terms of the settlement agreements. No 

judgment or other final disposition has been entered.

3

The civil case information statement erroneously stated the 

date of entry of the order as July 17, 2020. 
6

should prevail over its title, citing Viejo Bancorp, Inc. v. Wood

(1989) 217 Cal.App.3d 200 (Viejo Bancorp), and contended,

“[d]espite vacating its previously entered formal judgment, the 

trial court intended that its modifying order should have an 

identical immediate effect.” Loudon did not address the issue of 

jurisdiction in his respondent’s brief.

On May 27, 2021, concurrently with its opening brief, 

DHSE filed a petition for writ of mandate.4 DHSE argued writ

review of the trial court’s order was appropriate because it had no 

adequate remedy at law if this court did not consider its appeal of 

the July 16, 2020 order approving the PAGA settlement. DHSE 

contended its petition was timely because its notice of appeal

informed Loudon of the issues raised in the petition, its petition 

was filed within one year of entry of the challenged order, and 

Loudon has not been prejudiced by any delay. 

While the writ petition was still pending in the Fourth 

Appellate District, Division Two, the court requested informal 

briefing addressing whether an order to show cause should issue. 

Loudon’s response did not discuss the criteria for determining 

whether the issues merited consideration by way of writ petition. 

DHSE’s response reiterated and expanded on the arguments in 

its petition urging the court to grant writ relief.

DISCUSSION

1. DHSE’s Purported Appeal Is from a Nonappealable 

Order

“[A] reviewing court lacks jurisdiction on direct appeal in 

the absence of an appealable order or judgment.” (Walker v. 

4 DHSE, Inc. v. Superior Court, B322569. The previously 

assigned writ number prior to transfer to this court was E077127.
7

Los Angeles County Metropolitan Transportation Authority (2005) 

35 Cal.4th 15, 21; accord, Griset v. Fair Political Practices Com. 

(2001) 25 Cal.4th 688, 696; see Jennings v. Marralle (1994) 

8 Cal.4th 121, 126 [“[e]xistence of an appealable judgment is a 

jurisdictional prerequisite to an appeal”].) “The right to appeal is 

wholly statutory. [Citation.] Code of Civil Procedure 

section 904.1 lists appealable judgments and orders.” (Dana 

Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 

1, 5.) 

Code of Civil Procedure section 904.1, subdivision (a)(1),5

authorizes an appeal “[f]rom a judgment, except an interlocutory 

judgment, other than as provided in paragraphs (8), (9), and (11), 

or a judgment of contempt . . . .” Although the trial court’s order 

of July 16, 2020 is most definitely not a judgment—DHSE 

successfully moved to vacate the judgment actually entered on 

that date—DHSE nonetheless contends its appeal of that order 

falls within section 904.1, subdivision (a)(1), because it is a “final 

order . . . approving full settlement of all claims and issues in the 

case amounting to final disposition of them . . . such that the 

order approving settlement is a final judgment of the action 

having immediate adverse monetary [e]ffect on the defendants.” 

As discussed, DHSE contends that the trial court intended its 

September 3, 2020 order vacating the judgment to have the same 

effect as a judgment.

DHSE is incorrect. A prejudgment order approving a 

PAGA settlement is not an appealable order. (Moniz v. Adecco 

USA, Inc. (2021) 72 Cal.App.5th 56, 71 & fn. 6.) That order is 

properly reviewed on appeal only after a timely notice of appeal 

5

Subsequent statutory references are to this code.
8

following entry of judgment. (Ibid.) And the trial court here, 

when vacating the judgment it had previously entered, expressly 

recognized this by preserving its jurisdiction to enter a judgment 

if one was necessary to enforce the settlement or, alternatively, to 

dismiss the case if DHSE complied with the settlement and the 

matter was finally concluded. Until one of those occurrences, the 

case remained unresolved.

DHSE urges us to consider the substance of the July 16, 

2020 order, not its title, in determining whether it is equivalent 

to a final judgment appealable pursuant to section 904.1, 

subdivision (a)(1). (See Belio v. Panorama Optics, Inc. (1995) 

33 Cal.App.4th 1096, 1101 [“‘determining whether a particular 

decree is essentially interlocutory and nonappealable, or whether

it is final and appealable . . . [i]t is not the form of the decree but 

the substance and effect of the adjudication which is 

determinative’”].) “‘As a general test, which must be adapted to 

the particular circumstances of the individual case, it may be said 

that where no issue is left for future consideration except the fact 

of compliance or noncompliance with the terms of the first decree, 

that decree is final, but where anything further in the nature of 

judicial action on the part of the court is essential to a final 

determination of the rights of the parties, the decree is 

interlocutory.’” (Id. at pp. 1101-1102.)

Using this standard, DHSE maintains the July 16, 2020 

order approving the PAGA settlement agreement should be 

considered a final judgment because no additional adjudication 

was necessary in the trial court. Yet, in addition to the fact the 

trial court anticipated further action may be necessary to enforce 

the settlement and expressly retained jurisdiction for that 

purpose in its September 3, 2020 order, DHSE in its opening brief 
9

explained it was “determined to oppose and to rescind the 

agreement.” Expanding on this point in its reply brief, DHSE 

asserted, even “[u]pon filing of the motion [to approve the 

settlement,] there still was nothing before the court for the 

defendants to rescind because without the court’s approval there 

was not yet an agreement.” Thus, DHSE understood approval of 

the settlement agreement was just a step in a process—a 

prerequisite to its attempt to rescind that agreement—not the 

endpoint for proceedings in the trial court. (Cf. Le Francois v. 

Goel (2005) 35 Cal.4th 1094, 1107 [trial court has inherent power 

to reevaluate its own interim rulings]; Darling, Hall & Rae v. 

Kritt (1999) 75 Cal.App.4th 1148, 1155-1157 [same].)6

DHSE’s reliance on Viejo Bancorp, supra, 217 Cal.App.3d 

200, to support its argument for appealability is misplaced. In 

Viejo Bancorp one of the parties to a settlement agreement moved 

to enforce the agreement under section 664.6 in a second case 

between the same parties. Before holding the order enforcing the 

settlement agreement was void because a motion to enforce under 

section 664.6 could not be brought in an action other than the one 

in which the settlement had been made (Viejo Bancorp, at 

p. 206), the court of appeal held the order was appealable even 

though not a “judgment” because it was “clear the trial court 

intended to effect a final judgment in the old action,” but could 

not because it was no longer pending. (Id. at p. 205.) That 

conclusion was fully consistent with the language of 

section 664.6, subdivision (a), which authorizes the court to 

6 Notwithstanding its stated intent to seek rescission of the 

PAGA settlement agreement, DHSE did not move to rescind the 

agreement in the trial court before filing its notice of appeal.
10

“enter judgment pursuant to the terms of the settlement.” Here, 

in contrast, there was no order akin to a judgment enforcing the 

parties’ settlement, only an order approving settlement and 

reserving jurisdiction to enter a dismissal if DHSE fully complied 

with the settlement’s terms or a judgment in favor of Loudon if it 

did not.

We, of course, have discretion to treat DHSE’s purported 

appeal as a petition for writ of mandate and consider the merits 

of its challenge to the PAGA settlement on the appellate briefing. 

(See Olson v. Cory (1983) 35 Cal.3d 390, 401; Western Bagel Co., 

Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 660; Curtis v. 

Superior Court (2021) 62 Cal.App.5th 453, 465.) DHSE has not 

made such a request, apparently content to rely on its separately 

filed writ petition, and does not address the factors used by the 

courts of appeal when deciding whether to do so. (See, e.g., 

Curtis, at p. 465 [discussing the five factors generally considered 

in deciding whether to treat an improper appeal as a writ 

petition].) We decline to exercise our discretion sua sponte, 

particularly since the nonappealability of the July 16, 2020 order 

after the court vacated the judgment at DHSE’s request should 

have been apparent. (See Olson, at p. 401 [the power to treat a 

defective appeal as a petition for writ of mandate “should not [be] 

exercise[d] . . . except under unusual circumstances”]; see also 

Oak Springs Villas Homeowners Assn. v. Advanced Truss 

Systems, Inc. (2012) 206 Cal.App.4th 1304, 1309 [declining to 

treat an improper direct appeal as a petition for writ of mandate 

“as there is no unusual circumstance or peculiarity that would 

justify exercising our discretion”].)
11

2. DHSE’s Petition for Writ of Mandate Is Untimely

In a separate order we deny DHSE’s petition for writ of 

mandate, filed concurrently with its opening brief in this appeal. 

The petition is untimely, and DHSE failed to establish

circumstances warranting writ review.7

“As a general rule, a petition for writ of mandate should be 

filed within the 60-day period applicable to appeals.” (Davis v. 

Superior Court (2020) 50 Cal.App.5th 607, 614; Citizens for Open 

Government v. City of Lodi (2012) 205 Cal.App.4th 296, 310; 

Volkswagen of America, Inc. v. Superior Court (2001) 

94 Cal.App.4th 695, 701.) “An appellate court may consider a 

petition for an extraordinary writ at any time [citation], but has 

discretion to deny a petition filed after the 60-day period 

applicable to appeals, and should do so absent ‘extraordinary 

circumstances’ justifying the delay.” (Popelka, Allard, McCowan 

& Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499;

accord, Nixon Peabody LLP v. Superior Court (2014) 

230 Cal.App.4th 818, 821 [“an appellate court may consider a 

writ petition at any time despite the 60-day rule if it considers 

the circumstances extraordinary,” italics omitted].) 

7 DHSE will have the right to appeal the order approving the 

PAGA settlement agreement after the trial court enters a 

judgment or order dismissing the case. (See Moniz v. Adecco 

USA, Inc., supra, 72 Cal.App.5th at p. 71; Uribe v. Crown 

Building Maintenance Co. (2021) 70 Cal.App.5th 986, 990-991.) 

In addition, DHSE has not demonstrated irreparable injury 

absent immediate writ review (see Los Angeles Gay & Lesbian 

Center v. Superior Court (2011) 194 Cal.App.4th 288, 299), not 

least because it waited 10 months to file the petition.
12

Under the general rule the last day for DHSE to timely file 

a writ petition challenging the July 16, 2020 order was Monday,

September 14, 2020—the first court day after DHSE filed its 

notice of appeal. Although DHSE contends filing its notice of 

appeal advised Loudon of the issues that would be raised in a 

writ petition within the requisite 60 days, no authority supports 

DHSE’s argument filing a notice of appeal satisfied the 60-day 

rule or justified the delay of an additional eight months before 

actually filing its petition.

DHSE’s alternative argument that it had one year to file a 

writ petition because PAGA claims are subject to a one-year 

statute of limitations borders the frivolous. DHSE purports to 

find support for its novel theory in Kao v. Department of 

Corrections & Rehabilitation (2016) 244 Cal.App.4th 1326, in 

which an inmate filed a petition for writ of mandate in superior 

court to compel the California Department of Corrections and

Rehabilitation to process his disciplinary appeal. (Id. at p. 1331.) 

The court of appeal reversed the superior court’s order sustaining 

a demurrer to the petition based on the 60-day rule, holding the 

three-year statute of limitations of section 388, subdivision (a), 

for a liability (or obligation) created by statute applied to Kao’s 

petition. (Id. at p. 1334.) The court explained the 60-day rule did 

not govern the time for commencing a civil action. “Rather, it is a 

judicially created rule used presumptively by appellate courts to 

assess the timeliness of nonstatutory writ petitions seeking 

discretionary review of trial court decisions” (id. at p. 1333), and 

did not apply to an inmate’s petition that sought “to compel the 

Department to act and did not seek discretionary review of a 

decision by the Department.” (Ibid.)
13

Unlike Kao, DHSE did not seek to commence a civil action. 

It filed a nonstatutory writ petition seeking discretionary review 

of the trial court’s prejudgment order approving the parties’

PAGA settlement agreement, precisely the type of order to which 

the 60-day rule applies.

DISPOSITION

The appeal is dismissed. The parties are to bear their own 

costs.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.