Carolyn Callahan v. Brookdale Senior Living Cmty. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLYN D. CALLAHAN, on behalf No. 20-55603
of herself and all others similarly
situated, D.C. No.
Plaintiff-Appellee, 2:18-cv-10726-
VAP-SS
v.
BROOKDALE SENIOR LIVING
COMMUNITIES, INC., a Delaware
corporation; BROOKDALE EMPLOYEE
SERVICES, LLC, a Delaware
corporation; BROOKDALE EMPLOYEE
SERVICES CORPORATE, LLC, a
Delaware corporation;
SUMMERVILLE AT ATHERTON
COURT, LLC, a Delaware limited
liability company; BROOKDALE
VEHICLE HOLDING, LLC, a Delaware
limited liability company; BKD
PERSONAL ASSISTANCE SERVICES,
LLC, a Delaware limited liability
company; EMERITUS CORPORATION,
a Washington corporation;
BROOKDALE LIVING COMMUNITIES,
INC., a Delaware corporation; BKD
TWENTY-ONE MANAGEMENT
COMPANY, INC., a Delaware
corporation; BROOKDALE SENIOR
LIVING, INC., a Delaware
2 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
corporation; DOES, 1 through 100,
Inclusive,
Defendants-Appellees,
v.
MISHELLE NEVERSON, Proposed
Intervenor,
Movant-Appellant.
CAROLYN D. CALLAHAN, on behalf No. 20-55761
of herself and all others similarly
situated, D.C. No.
Plaintiff-Appellee, 2:18-cv-10726-
VAP-SS
v.
BROOKDALE SENIOR LIVING OPINION
COMMUNITIES, INC., a Delaware
corporation; BROOKDALE EMPLOYEE
SERVICES, LLC, a Delaware
corporation; BROOKDALE EMPLOYEE
SERVICES CORPORATE, LLC, a
Delaware corporation;
SUMMERVILLE AT ATHERTON
COURT, LLC, a Delaware limited
liability company; BROOKDALE
VEHICLE HOLDING, LLC, a Delaware
limited liability company; BKD
PERSONAL ASSISTANCE SERVICES,
LLC, a Delaware limited liability
company; EMERITUS CORPORATION,
a Washington corporation;
BROOKDALE LIVING COMMUNITIES,
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 3
INC., a Delaware corporation; BKD
TWENTY-ONE MANAGEMENT
COMPANY, INC., a Delaware
corporation; BROOKDALE SENIOR
LIVING, INC., a Delaware
corporation; DOES, 1 through 100,
Inclusive,
Defendants-Appellees,
v.
MISHELLE NEVERSON, Proposed
Intervenor,
Movant-Appellant,
and
NINA REJUSO, Proposed Intervenor;
GENEFLOR SACRO, Proposed
Intervenor,
Movants.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted July 26, 2021
Pasadena, California
Filed June 29, 2022
4 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
Before: Milan D. Smith, Jr. and John B. Owens, Circuit
Judges, and Eduardo C. Robreno, * District Judge.
Opinion by Judge Robreno
SUMMARY **
California’s Private Attorneys General Act /
Intervention
The panel affirmed the district court’s denial of Michelle
Neverson’s motion to intervene, and dismissed Neverson’s
appeal of the district court’s approval of the Private
Attorneys General Act (“PAGA”) settlement between
Carolyn Callahan and her former employer, Brookdale
Senior Living Communities, Inc.
Callahan brought the action pursuant to California’s
PAGA, Cal. Lab. Code sections 2698-2699.5, which allows
aggrieved employees to recover civil penalties for Labor
Code violations on behalf of themselves, the state, or other
employees. Callahan and Brookdale agreed to a settlement.
Neverson, who was a plaintiff in an overlapping PAGA case
against Brookdale, filed a motion to intervene in Callahan’s
action to object to the PAGA settlement.
*
The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 5
The panel held that Neverson was not a party to
Callahan’s case and could not appeal the approval of the
PAGA settlement.
The panel first considered whether Neverson was
entitled to intervene in Callahan’s case as a matter of right
under Fed. R. Civ. P. 24(a)(2). The panel held that
Neverson’s motion for intervention as a matter of right failed
at the fourth and final prong of the Wilderness Society v. U.S.
Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011), test,
which requires that an applicant’s interest must be
inadequately represented by the parties to the action. Here,
Neverson and Callahan had the same ultimate objective: to
obtain civil penalties on behalf of the California Labor &
Workforce Development Agency (“LWDA”) under PAGA.
Given this identity of interest, Neverson needed to make a
compelling showing to demonstrate inadequate
representation. The panel concluded she failed to make this
required showing. Accordingly, the panel affirmed the
district court’s denial of Neverson’s motion to intervene as
of right.
The panel next considered whether the district court
abused its discretion in denying Neverson permissive
intervention under Fed. R. Civ. P. 24(b). The district court
held that the discretionary factors governing permissive
intervention pointed strongly against intervention: both
Callahan and Neverson are deputized agents of the LWDA
who assert the interests of the LWDA, and allowing
Neverson to intervene would not significantly contribute to
the factual development of issues in the case. The panel
concluded that the district court did not err in denying
Neverson permissive intervention, and affirmed the denial of
Neverson’s motion to intervene.
6 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
Because Neverson’s motion to intervene was properly
denied, she never became a party to the PAGA action. As a
non-party to this action, Neverson had no right to appeal the
district court’s approval of the PAGA settlement. The panel
dismissed her appeal of the settlement approval, and did not
consider whether the district court abused its discretion in
approving the settlement.
COUNSEL
Ryan H. Wu (argued) and Robert K. Friedl, Capstone Law
APC, Los Angeles, California, for Movant-Appellant.
Joseph Socher (argued), Los Angeles, California; Andranik
Tsarukyan and Armen Zenjiryan, Remedy Law Group LLP,
Burbank, California; for Plaintiff-Appellee.
Keith A. Jacoby (argued), J. Kevin Lilly, Shannon R. Boyce,
and Jeffrey J. Mann, Littler Mendelson P.C., Los Angeles,
California; for Defendants-Appellees.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 7
OPINION
ROBRENO, District Judge:
Carolyn Callahan is a plaintiff in an action brought
against Brookdale Senior Living Communities, Inc.
(“Brookdale”), 1 her former employer, pursuant to the
California Private Attorneys General Act (“PAGA”), Cal.
Lab. Code sections 2698–2699.5, which allows aggrieved
employees to recover civil penalties for Labor Code
violations on behalf of themselves, the state, or other current
or former employees. After mediation, Callahan and
Brookdale agreed to a settlement. Appellant Michelle
Neverson, who was a plaintiff in an overlapping PAGA case
against Brookdale, filed a motion to intervene in Callahan’s
action. The district court denied Neverson’s motion and
approved the PAGA settlement in Callahan’s case in
relevant part. Neverson appeals both the denial of her motion
to intervene and the district court’s order approving the
Callahan settlement. We consolidated these two issues on
appeal.
For the reasons set forth below, we affirm the district
court’s denial of Neverson’s motion to intervene. We hold
that Neverson is not a party to Callahan’s case and may not
appeal the approval of the PAGA settlement. Under these
1
“Brookdale” is used herein to refer to Brookdale Senior Living
Communities, Inc.; Brookdale Employee Services, LLC; Brookdale
Employee Services - Corporate, LLC; Summerville at Atherton Court,
LLC; Brookdale Vehicle Holding, LLC; BKD Personal Assistance
Services, LLC; Emeritus Corporation, Brookdale Living Communities,
Inc.; BKD Twenty-One Management Company, Inc.; and Brookdale
Senior Living Inc., which are all involved in this litigation.
8 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
circumstances, we have no occasion to consider Neverson’s
substantive objections to the PAGA settlement.
FACTUAL AND PROCEDURAL BACKGROUND
Brookdale owns and operates senior living communities
throughout the United States. Callahan worked for
Brookdale as a concierge from approximately February 2006
to February 2018. On November 26, 2018, she sent the
California Labor & Workforce Development Agency
(“LWDA”) notice of a number of Brookdale’s alleged
violations of the California Labor Code.
On November 27, 2018, Callahan filed a class action
lawsuit against Brookdale in the Los Angeles County
Superior Court. The complaint alleged violations of the
Labor Code and California’s Unfair Competition Law. She
did not initially bring a claim under PAGA.
I. District Court Proceedings
On December 28, 2018, Brookdale removed the action
to federal court pursuant to the Class Action Fairness Act of
2005, 28 U.S.C. § 1332(d). That same day, Brookdale filed
a notice of six related cases against it that included the action
brought by Neverson (the “Related Actions”). 2
2
Pursuant to the Central District of California’s Local Rule of Civil
Procedure 83-1.3.1, parties are required to file a Notice of Related Cases
whenever two or more cases filed in the Central District “arise from the
same or a closely related transaction, happening, or event,” “call for
determination of the same or substantially related or similar questions of
law and fact,” or “for other reasons would entail substantial duplication
of labor if heard by different judges.” C.D. Cal. R. 83-1.3.1(a)–(c).
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 9
Callahan’s case did not proceed to litigation. Rather, on
January 31, 2019, Callahan and Brookdale filed a stipulation
requesting that Callahan’s individual claims be stayed and
submitted to arbitration, that her class claims be dismissed,
and that she be permitted to file an amended complaint
asserting a PAGA claim after the notice period to the LWDA
had been exhausted. The district court approved the
stipulation on February 5, 2019. Callahan filed her amended
complaint on February 6, 2019, which dismissed her class
claims and added claims under PAGA.
After participating in mediation on the PAGA claim,
Callahan and Brookdale agreed to settle Callahan’s PAGA
claim along with the related PAGA claims of other plaintiffs
(including Neverson) that were pending against Brookdale.
On October 17, 2019, Callahan sent an amended letter to the
LWDA notifying it that the parties intended to resolve
Callahan’s PAGA action and all related PAGA actions
against Brookdale, including Neverson’s action. The LWDA
did not elect to investigate or prosecute the Labor Code
violations alleged in Callahan’s original or amended notice
letters during the statutorily provided sixty-day period. See
Cal. Lab. Code § 2699.3(a)(2)(A).
On October 21, 2019, Callahan and Brookdale filed a
Joint Notice of Settlement advising the district court they
had settled the case as to all parties and causes of action.
Three days later, Neverson filed a notice of intent to
intervene to object to the PAGA settlement.
On February 13, 2020, Callahan filed a second amended
complaint, which sought PAGA penalties based on predicate
violations of Labor Code sections 201, 202, 203, 203.1,
222.5, 226, 226.7, 510, 512, 558, 1174, 1194, 1194.2, 2802,
2810.5 and Wage Order No. 4-2001. The second amended
10 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
complaint also added all the named defendants from the
Related Actions.
On March 4, 2020, Callahan and Brookdale filed a joint
motion for approval of the PAGA settlement. Their proposed
settlement was based on a Gross Settlement Fund of
$920,000. The funds were allocated as follows: $417,240.72
to the LWDA, $139,080.24 to the aggrieved employees,
$46,000.00 in administration costs, $306,666.67 in
attorneys’ fees, $8,512.36 in litigation costs and expenses,
and $2,500.00 as a service award for Callahan as the named
plaintiff. 3
On March 13, 2020, Neverson filed her motion to
intervene. On May 20, 2020, the district court denied her
motion. The district court denied Neverson’s intervention as
a matter of right under Federal Rule of Civil Procedure 24(a)
because she had “not cited, and the Court ha[d] not found,
any cases in which a court has granted intervention as of
right in a PAGA settlement.” Callahan v. Brookdale Senior
Living Cmtys., Inc., No. 2:18-cv-10726-VAP-SSx, 2020 WL
4904653, at *4 (C.D. Cal. May 20, 2020). In considering
whether to grant permissive intervention pursuant to Rule
24(b), the court found (1) that it had jurisdiction to permit
intervention, (2) that Neverson’s motion to intervene was
timely, and (3) that there were common questions of law and
fact between Neverson’s and Callahan’s claims. But the
court ultimately denied permissive intervention because
Neverson and Callahan represented the same legal interest
3
By statute, the amount awarded to the LWDA equals 75% of the
settlement fund after costs and attorneys’ fees, with the remaining 25%
allocated to the aggrieved employees. See Cal. Lab. Code § 2699(i).
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 11
and because “permitting intervention would not contribute
to the factual development of issues in the case.” Id. at *5.
On July 7, 2020, the district court entered an order
granting in part the joint motion for approval of the PAGA
settlement. The court approved the settlement amount, but
reduced the amount allocated for attorneys’ fees from
$306,666.67 to $230,000.00.
Neverson timely appealed both the order denying her
motion to intervene and the district court’s order approving
the PAGA settlement. We consolidated her two appeals on
September 4, 2020.
II. Developments on Appeal
Neverson raises three arguments on appeal: (1) that she
is entitled to intervene in Callahan’s PAGA action as a
matter of right; (2) that the district court abused its discretion
in denying her permissive intervention; and (3) that the
district court abused its discretion in finding that the PAGA
settlement is fundamentally fair, adequate, and reasonable.
After the initial briefing was completed in this case, we
issued two decisions that inform our judgment here. First,
Magadia v. Wal-Mart Associates, Inc., 999 F.3d 668 (9th
Cir. 2021), held that a plaintiff seeking penalties under
PAGA for California labor law violations must satisfy the
traditional Article III standing requirement of an injury in
fact. See id. at 677–78. After the Magadia decision was filed,
we directed the parties to file supplemental briefs to address
its impact on the motion to intervene, Callahan’s standing to
bring the PAGA suit, and Neverson’s standing to object to
the PAGA settlement.
12 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
Second, we decided Saucillo v. Peck, 25 F.4th 1118 (9th
Cir. 2022), holding, as relevant here, that an objector to a
PAGA settlement who was not a party to the underlying
litigation may not appeal the approval of the settlement. Id.
at 1122. The Peck opinion notes that unlike a class action,
“[t]here is no individual component to a PAGA action
because every PAGA action is a representative action on
behalf of the state.” Id. at 1126–27. And because objectors
to a PAGA settlement have no individual stake in the action,
they “are not ‘parties’ to a PAGA suit in the same sense that
absent class members are ‘parties’ to a class action.” Id. at
1127. We consequently dismissed the non-party objector’s
appeal because “[t]he rule that only parties to a lawsuit, or
those that properly become parties, may appeal an adverse
judgment, is well settled.” Id. at 1126 (quoting United States
ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica
N.V., 945 F.3d 1237, 1241 (9th Cir. 2020)).
After Peck was decided, we also ordered the parties here
to file supplemental briefs discussing its impact on this case.
We specifically requested that the parties address
(1) whether someone that has been allowed to intervene in a
PAGA lawsuit or was improperly denied the opportunity to
do so is a “party to the lawsuit” entitled to file an appeal, and
(2) whether Neverson was still such a party assuming,
arguendo, that she was properly denied permission to
intervene.
We have reviewed the parties’ supplemental briefs and
letters directing us to additional authorities. 4
4
The parties’ respective motions for judicial notice (No. 20-55603
Docket Entry Nos. 13, 24, 47, 55; No. 20-55761 Docket Entry Nos. 9,
20, 43, 51) are GRANTED.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 13
STANDARD OF REVIEW
We review de novo a district court’s denial of a motion
to intervene as a matter of right, with the exception of a
denial based on timeliness, which is reviewed for abuse of
discretion. Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d
1392, 1397 (9th Cir. 1995) (citing United States v. Oregon,
913 F.2d 576, 587 (9th Cir. 1990)).
We review a district court’s denial of a motion for
permissive intervention for abuse of discretion. Freedom
from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843
(9th Cir. 2011) (citing League of United Latin Am. Citizens
v. Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997)).
We also review a district court’s approval of a PAGA
settlement for abuse of discretion. Roes v. SFBSC Mgmt.,
LLC, 944 F.3d 1035, 1043 (2019) (applying “clear abuse of
discretion” standard to review of a settlement involving class
and PAGA claims). “A court abuses its discretion when it
fails to apply the correct legal standard or bases its decision
on unreasonable findings of fact.” Id. (quoting Nachshin v.
AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011)).
DISCUSSION
I. Motion to Intervene as a Matter of Right
We first consider whether Neverson was entitled to
intervene in Callahan’s case as a matter of right pursuant to
Federal Rule of Civil Procedure 24(a)(2).
Rule 24(a)(2) requires a court to permit intervention of
right by a movant who “claims an interest relating to the
property or transaction that is the subject of the action, and
is so situated that disposing of the action may as a practical
14 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that
interest.” We apply the following four-part test when
analyzing a motion to intervene of right under Rule 24(a)(2):
(1) the motion must be timely; (2) the
applicant must claim a “significantly
protectable” interest relating to the property
or transaction which is the subject of the
action; (3) the applicant must be so situated
that the disposition of the action may as a
practical matter impair or impede its ability
to protect that interest; and (4) the applicant’s
interest must be inadequately represented by
the parties to the action.
Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177
(9th Cir. 2011) (quoting Sierra Club v. EPA, 995 F.2d 1478,
1481 (9th Cir. 1993)).
“In evaluating whether these requirements are met,
courts ‘are guided primarily by practical and equitable
considerations.’” United States v. City of Los Angeles,
288 F.3d 391, 397 (9th Cir. 2002) (quoting Donnelly v.
Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). Courts
construe Rule 24(a) “broadly in favor of proposed
intervenors.” Id. (quoting United States ex. rel. McGough v.
Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)).
We assume without deciding that Neverson’s motion to
intervene was timely, and that Neverson has an interest in
recovering penalties pursuant to PAGA that is sufficient to
satisfy prongs two and three of the test articulated above.
Even with these assumptions, Neverson’s motion for
intervention as a matter of right fails at the fourth and final
prong of the Wilderness Society test.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 15
We consider three factors in deciding whether a present
party adequately represents the interests of a prospective
intervenor:
(1) whether the interest of a present party is
such that it will undoubtedly make all of a
proposed intervenor’s arguments;
(2) whether the present party is capable and
willing to make such arguments; and
(3) whether a proposed intervenor would
offer any necessary elements to the
proceeding that other parties would neglect.
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)
(citing California v. Tahoe Reg’l Planning Agency, 792 F.2d
775, 778 (9th Cir. 1986)). “When an applicant for
intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation
arises.” Id. (citing League of United Latin Am. Citizens,
131 F.3d at 1305). And, if the proposed intervenor’s interest
is “identical to that of one of the present parties, a compelling
showing should be required to demonstrate inadequate
representation.” Id. (citation omitted). Here, Neverson and
Callahan have the same ultimate objective: to obtain civil
penalties on behalf of the LWDA under PAGA. Therefore,
given this identity of interest, Neverson must make a
compelling showing to demonstrate inadequate
representation. We conclude she has failed to make the
required showing.
Neverson’s primary contention is that her interests are
not adequately represented because the PAGA settlement
amount is too small. She claims that Callahan miscalculated
the maximum PAGA penalties and unreasonably discounted
them in agreeing to the settlement. But she provides no basis
16 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
for her own calculation of the total penalties under PAGA
and no basis for her contention that Callahan’s valuation of
the penalties was incorrect.
Neverson’s argument that Callahan should not have
settled the PAGA action for the agreed-upon amount
ultimately amounts to a disagreement over litigation
strategy. And “[w]hen a proposed intervenor has not alleged
any substantive disagreement between it and the existing
parties to the suit, and instead has rested its claim for
intervention entirely upon a disagreement over litigation
strategy or legal tactics, courts have been hesitant to accord
the applicant full-party status.” League of United Latin Am.
Citizens, 131 F.3d at 1306 (citations omitted). Therefore,
Neverson’s assertion that she would not have agreed to the
settlement is insufficient to show that Callahan did not
adequately represent her interests.
Neverson also argues that her interests were not
adequately represented because her case was formally
litigated and Callahan’s was not. However, Callahan still
obtained significant informal discovery prior to mediation,
including copies of all of Brookdale’s relevant policies and
procedures, three years’ worth of time and payroll data for a
group of over 17,000 employees, and copies of related
PAGA actions currently pending against Brookdale in
California. Callahan also had access to the discovery
produced in Neverson’s case and two other related cases.
Under these circumstances, we are not persuaded by
Neverson’s assertion that the absence of formal litigation in
Callahan’s case left Callahan unable to adequately represent
Neverson’s interests.
Neverson further argues that Callahan was not properly
deputized to pursue certain claims that were a part of the
settlement due to the statute of limitations having run on
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 17
those claims. However, even if Neverson is right, she does
not establish that she is the proper party to pursue the claims
for which Callahan was not properly deputized. In light of
this failure, whether Callahan was properly deputized to
pursue certain claims she settled on behalf of the state is not
relevant to whether Callahan adequately represented
Neverson’s interests based on the three relevant factors.
While the argument that Neverson was not properly
deputized to pursue certain claims may be relevant to
whether the district court abused its discretion in approving
the settlement, we do not reach this issue on appeal.
For these reasons, we conclude that Neverson has failed
to make the required showing that Callahan did not
adequately represent her interests. We therefore affirm the
district court’s denial of her motion to intervene as of right.
II. Permissive Intervention
We next consider whether the district court abused its
discretion in denying Neverson permissive intervention.
Under Federal Rule of Civil Procedure 24(b), a district court
has discretion to permit intervention when the movant
presents “(1) an independent ground for jurisdiction; (2) a
timely motion; and (3) a common question of law and fact
between the movant’s claim or defense and the main action.”
Freedom from Religion Found, Inc., 644 F.3d at 843(quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470,
473 (9th Cir. 1992)).
“If the trial court determines that the initial conditions
for permissive intervention under rule 24(b)(1) or 24(b)(2)
are met, it is then entitled to consider other factors in making
its discretionary decision on the issue of permissive
intervention.” Spangler v. Pasadena City Bd. of Educ.,
18 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
552 F.2d 1326, 1329 (9th Cir. 1977). The relevant additional
factors include the following:
the nature and extent of the intervenors’
interest, their standing to raise relevant legal
issues, the legal position they seek to
advance, and its probable relation to the
merits of the case. The court may also
consider whether changes have occurred in
the litigation so that intervention that was
once denied should be reexamined, whether
the intervenors’ interests are adequately
represented by other parties, whether
intervention will prolong or unduly delay the
litigation, and whether parties seeking
intervention will significantly contribute to
full development of the underlying factual
issues in the suit and to the just and equitable
adjudication of the legal questions presented.
Id. (footnotes omitted); see also Donnelly, 159 F.3d at 412(describing these Spangler factors as “nonexclusive”).
The district court found that the three initial conditions
for permissive intervention were met here but that “the
discretionary factors governing intervention counsel
strongly against intervention.” The district court first noted
that because both Callahan and Neverson are deputized
agents of the LWDA who assert the interests of the LWDA,
they represent the same legal right and interest in the PAGA
action. The district court next found that allowing Neverson
to intervene would not significantly contribute to the factual
development of issues in the case since Callahan had access
to all discovery obtained in Neverson’s case and other
related cases.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 19
Neverson first argues that the fact that she and Callahan
both represent the interests of the LWDA cannot be
dispositive and should not have been considered in the
district court’s analysis of the Spangler discretionary factors.
She asserts that if this were dispositive, a PAGA plaintiff
could never be granted permissive intervention in an
overlapping PAGA action under Rule 24(b)(2). This result,
she argues, would be contrary to the policy interests behind
PAGA. But Spangler explicitly provides that the court may
consider, inter alia, “the nature and extent of the intervenors’
interest . . . [and] whether the intervenors’ interests are
adequately represented by other parties.” 552 F.2d at 1329.
And in any event, this factor was not dispositive in the
district court’s analysis, as the court also considered whether
Neverson would “significantly contribute to full
development of the underlying factual issues in the suit.” Id.Thus, contrary to Neverson’s assertions, it does not follow
from the district court’s decision that a PAGA plaintiff can
never be granted permissive intervention in an overlapping
PAGA case.
Neverson also argues that she should be granted
permissive intervention because her independent analysis of
the value of the PAGA claims would significantly contribute
to the factual development of Callahan’s case. But again,
Neverson promises much and delivers little. Indeed, she
provides no factual basis for her determination that Callahan
miscalculated the maximum PAGA penalties. Under these
circumstances, the district court did not abuse its discretion
in finding that Neverson would not significantly contribute
to the factual issues in the case.
For these reasons, we conclude that the district court
acted within its discretion in denying Neverson permissive
20 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.
intervention. We accordingly affirm the denial of
Neverson’s motion to intervene.
III. Right to Appeal the Approval of the PAGA
Settlement
Because Neverson’s motion to intervene was properly
denied, she never became a party to the PAGA action. And
as a non-party to this action, she has no right to appeal the
district court’s approval of the PAGA settlement. See Peck,
25 F.4th at 1128.
Neverson argues that she has a right to appeal the
settlement because “the weight of California authority
supports non-parties having a substantive right to intervene
in overlapping PAGA suits.” As an initial matter, we note
that two of the three California state cases Neverson cites are
consistent with this opinion. See Turrieta v. Lyft, Inc.,
284 Cal. Rptr. 3d 767, 778 (Ct. App. 2021) (affirming the
trial court’s denial of intervention and finding that the
proposed intervenors had no right to appeal the approval of
the PAGA settlement); Uribe v. Crown Bldg. Maint.,
285 Cal. Rptr. 3d 759, 770–72 (Ct. App. 2021), as amended
(Oct. 26, 2021) (allowing an intervenor to challenge a PAGA
settlement on appeal where the trial court granted
intervention and that decision to allow intervention was not
challenged on appeal). And to the extent that Moniz v.
Adecco USA, Inc., 287 Cal. Rptr. 3d 107 (Ct. App. 2021), is
inconsistent with our holding here, we note that Moniz
involved the application of California procedural rules while
we apply federal procedural rules in this case. Compare id.
at 121 (“For purposes of appellate standing, an unnamed
party may become a party to an action through intervention
(Code Civ. Proc., § 387) or by filing an appealable motion
to set aside and vacate the judgment.” (emphasis added)),
with Robert Ito Farm, Inc. v. Cnty. of Maui, 842 F.3d 681,
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 21
687 (9th Cir. 2016) (“[A] prospective intervenor does not
become a party to the suit unless and until he is allowed to
intervene.”).
The well-settled rule in federal court, as we noted in
Peck, is that “only parties to a lawsuit, or those that properly
become parties, may appeal an adverse judgment[.]”
25 F.4th at 1126 (quoting Volkhoff, 945 F.3d at 1241).
Though we have occasionally allowed a non-party to appeal
when “‘exceptional circumstances’ warrant a departure from
this general rule,” id. at 1129 (citation omitted), Neverson
does not argue that such circumstances are present here.
Because Neverson lacks the right to appeal the PAGA
settlement, we dismiss her appeal of the settlement approval
and do not consider whether the district court abused its
discretion in approving the settlement. See Peck, 25 F.4th at
1128.
CONCLUSION
For the foregoing reasons, as to the first appeal, we
affirm the district court’s denial of Neverson’s motion to
intervene. We dismiss Neverson’s second appeal of the
district court’s approval of the PAGA settlement because we
conclude that she has no right to appeal.
AS TO THE FIRST APPEAL, AFFIRMED; AS TO
THE SECOND APPEAL, DISMISSED.