Accurso v. In-N-Out Burgers ( 2023 )

Filed 8/29/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
RYAN ACCURSO,
Plaintiff and Respondent,
A165320
v.
IN-N-OUT BURGERS, (Sonoma County Super. Ct.
Defendant and Respondent; No. SCV-268956)
CALIFORNIA LABOR AND
WORKFORCE DEVELOPMENT
AGENCY ex rel. TOM PIPLACK et
al.,
Movants and Appellants.
I. INTRODUCTION
Appellants Tom Piplack and Brianna Marie Taylor are lead plaintiffs in
Private Attorneys General Act (PAGA) (Lab. Code, § 2698 et seq.)
representative actions in Orange and Los Angeles Counties against
respondent In-N-Out Burgers (In-N-Out). Upon learning of settlement
negotiations in a subsequent, overlapping PAGA action brought by
respondent Ryan Accurso against In-N-Out in Sonoma County, Piplack and
Taylor filed a proposed complaint in intervention in the Sonoma County
action, and moved to intervene under Code of Civil Procedure section 387 and
1
for a stay.1 The trial court denied the motions, relying principally on Turrieta
v. Lyft, Inc. (2021) 69 Cal.App.5th 955, review granted Jan. 5, 2022, S271721
(Turrieta) and distinguishing our decision in Moniz v. Adecco USA, Inc.
(2021) 72 Cal.App.5th 56 (Moniz). Before us now is an appeal from Piplack
and Taylor arguing that the denial of these two motions was erroneous.
Accurso and In-N-Out have responded urging affirmance in separate briefs.
We will vacate the denial order and remand for reconsideration.
II. BACKGROUND
Between February 2019 and December 2021, plaintiffs in four counties
filed six separate PAGA actions against In-N-Out. All of the plaintiffs in
these actions alleged violations of the Labor Code and sought civil penalties
on behalf of the State of California. By August 2021, when Accurso’s case in
Sonoma County was filed, two PAGA cases against In-N-Out were pending in
Los Angeles County; one case was pending in San Bernadino County; and one
case was pending in Orange County.
Piplack’s case (which was originally filed in San Francisco County and
then transferred to Orange County) was the first of the six PAGA actions to
be filed against In-N-Out. Following the filing of Piplack’s case, additional
PAGA lawsuits were filed in Los Angeles (Taylor, Becerra) and San
Bernadino County (Carrera). Accurso was the fifth of the six to be filed,
followed by Andrews in Los Angeles County.
The operative complaint in Piplack alleges a single PAGA claim arising
from In-N-Out’s policy of requiring its restaurant employees to report to work
each shift wearing white pants and failing to reimburse employees for both
1 All further undesignated statutory citations are to the Code of Civil
Procedure.
2
the cost of purchasing those pants and the cost of cleaning them after each
shift. Legally, plaintiff Piplack’s uniform expense theory is based primarily
on alleged violation of Labor Code section 2802, a statute requiring
reimbursement of employees’ business expenses while discharging their
duties.
Without detailing the exact contours of each of the six cases, suffice it
to say that, as originally filed, some of the actions made particularized factual
allegations of wage-and-hour violations relating to policies requiring
employees to wear uniforms (e.g., Piplack in Orange County, Taylor in Los
Angeles County2) while others made more generalized allegations of
violations that might arguably encompass uniform-wearing policies but do
not specifically mention that topic (e.g., Accurso in Sonoma County).3
All parties to this appeal concede overlap among the cases, presumably
because each case pleads one or more PAGA claims arising from Labor Code
violations suffered by current or former In-N-Out employees under common
legal theories. The cases all allege, for example, failure to pay minimum
wages (Lab. Code, §§ 1194, 1197.1), failure to pay overtime (id., §§ 510, 1194,
2 The original complaint in Taylor alleged various PAGA claims,
including a claim arising from In-N-Out’s policy of requiring employees to
don and doff their uniforms while off the clock and during breaks, and to iron
their uniforms while off the clock prior to reporting for work. The court in
Taylor initially stayed that action pending completion of proceedings in
Piplack, but plaintiff Taylor, represented by the same counsel as plaintiff
Piplack, later amended her complaint to withdraw those allegations, which
led to the court lifting the stay.
3 Other than conclusory statements that largely paraphrase each of the
wage-and-hour statutes and regulations that In-and-Out allegedly violated,
the operative complaint in Accurso is devoid of factual content.
3
1198), failure to pay all wages on time (id., §§ 204, 210), failure to provide
accurate wage statements (id., §§ 226, subd. (a), 226.3), and failure to pay all
wages when due upon separation of employment (id., §§ 201–203).4
When plaintiff’s counsel in Piplack and Taylor learned of mediation
activity in Accurso, they, along with counsel for PAGA claimants in Andrews,
Becerra, and Carrera—attempted to negotiate a collaborative arrangement
with plaintiff Accurso’s counsel to settle all pending PAGA claims with In-N-
Out on a global basis. But the negotiations foundered when no agreement
could be reached on the proportionate sharing of attorney’s fees recovery.
Plaintiff Accurso then proceeded to mediate his case with In-N-Out
individually, without the participation of plaintiffs Piplack, Taylor, or any of
the other PAGA claimants against In-N-Out. In light of what appeared to be
an imminent settlement, plaintiffs Piplack and Taylor moved to intervene in
Accurso. They also requested a stay of proceedings in Accurso based on the
doctrine of exclusive concurrent jurisdiction (see Shaw v. Superior Court
(2022) 78 Cal.App.5th 245 (Shaw)), arguing that Accurso should be stayed as
a later-filed action.
According to post-briefing evidence submitted by counsel for Piplack
and Taylor (their final email exchange with Accurso’s counsel in the
unsuccessful discussions of a joint approach to global settlement), the
mediation produced a settlement that would “resolve all the PAGA claims
against [In-N-Out] for $2.05 million,” with a release that would “wipe out” all
PAGA claims against In-N-Out. At the hearing on the motion to intervene,
4 While In-N-Out now concedes overlap among the cases, its case
management statements in Piplack’s Orange County case failed to mention
any of the other cases.
4
Accurso’s counsel implicitly conceded an agreed case resolution, telling the
court, “we think we have obtained a very, very favorable settlement.”
Counsel for In-N-Out agreed, stating, “I would just echo what plaintiff’s
counsel said.”
The trial court declined to consider any post-briefing evidence of the
alleged settlement, concluded that Piplack and Taylor lacked standing to
intervene, and on that basis denied both motions. It explained, “[T]he Court
finds that neither [Piplack nor Taylor] has a personal interest in the PAGA
claims being prosecuted by Accurso, but rather the interest lies with the
State, as the real party in interest, and thus [Piplack and Taylor] do not have
standing to intervene.” “[L]ikewise,” the court ruled, they “do not have
standing to request a stay.”
In so ruling, the trial court followed Turrieta. It noted that our
Supreme Court has granted review in Turrieta, but found the Court of
Appeal’s reasoning in Turrieta to be persuasive. While acknowledging
decisions in tension with Turrieta—including ours in Moniz—the court
concluded that none of these cases addresses the issue presented here: “[D]o
non-party Plaintiffs with overlapping PAGA claims have standing to
intervene?”
Piplack and Taylor appealed the order denying their motion to
intervene.5 They also filed a petition for a writ of prohibition challenging the
denial of their request to stay the proceedings in Accurso. We granted a stay
5 Because the denial of a motion to intervene is an appealable order, we
have jurisdiction over this interlocutory order. (Dobbas v. Vitas (2011)
191 Cal.App.4th 1442, 1448 [“The trial court’s order denying leave to
intervene is directly appealable because it finally and adversely determines
the moving party’s right to proceed in the action.”].)
5
of supersedeas pending our resolution of the appeal and dismissed the writ
petition as moot. We now conclude the court was correct to deny Piplack and
Taylor’s section 387 motion to the extent it sought intervention as-of-right,
but we vacate the order to the extent Piplack and Taylor sought permissive
intervention and remand for further consideration of that issue as well as the
issue of a possible stay in some form.6
III. DISCUSSION
A. Legal Principles: Intervention
1. Intervention Statute
For more than a century following the enactment of section 387 in
1872, intervention was permitted on a purely discretionary basis. With some
minor wording variations as it evolved, the statute stated, “At any time
before trial, any person, who has an interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, may intervene
in the action or proceeding.” (Former § 3877, italics added.) That changed in
6 Piplack and Taylor filed two requests asking that we take judicial
notice of certain documents that were not in the record before the trial court,
and Accurso filed one such request. We deferred ruling on these requests
until we rule on the merits. With the exception of Piplack and Taylor’s
request that we take judicial notice of exhibits 1 and 5 of their first request
(case management statements filed by In-and-Out in plaintiff Piplack’s
Orange County action), which we grant in part under Evidence Code section
452, subdivision (d), as to those exhibits, we now deny these requests.
7 Statutes and Amendments to the Codes 1873–1874, chapter 383,
section 44, page 296; Statutes 1907, chapter 371, section 1, page 703;
Statutes 1969, chapter 1611, section 5, page 3379, operative July 1, 1970;
Statutes 1970, chapter 484, section 1, page 961.
6
1977, when the Legislature amended section 3878 to conform the statute to
the structure of Federal Rules of Civil Procedure, rule 24 (28 U.S.C.), which
provides for intervention as-of-right in some instances under rule 24(a)
(mandatory intervention), and intervention in the discretion of the court in
other instances under rule 24(b) (permissive intervention).
Section 387, subdivision (d) now provides: “(1) The court shall, upon
timely application, permit a nonparty to intervene in the action or proceeding
[where] . . . [¶] . . . [¶] (B) The person seeking intervention claims an interest
relating to the property or transaction that is the subject of the action and
that person is so situated that the disposition of the action may impair or
impede that person’s ability to protect that interest, unless that person’s
interest is adequately represented by one or more of the existing parties.[9]
[¶] (2) The court may, upon timely application, permit a nonparty to
intervene in the action or proceeding if the person has an interest in the
matter in litigation, or in the success of either of the parties, or an interest
against both.”
This statute has an extensive case law gloss. It is designed to
“protect[] the interests of others affected by the judgment, obviating delay
8 Statutes 1977, chapter 450, section 1, page 1486.
9 Section 387, subdivision (d)(1)(A) provides for mandatory intervention
in an alternative scenario where “[a] provision of law confers an
unconditional right to intervene,” wholly apart from the nature and character
of the non-parties interest in the litigation or the issue of adequacy of
representation. This provision is a counterpart to Federal Rules of Civil
Procedure, rule 24(a)(1). Since it is not cited or mentioned by Piplack and
Taylor, we confine our attention to section 387, subdivision (d)(1)(B) and
(d)(2), the counterparts to Federal Rules of Civil Procedure, rule 24(a)(2) and
(b).
7
and multiplicity.” (People v. Superior Court (Good) (1976) 17 Cal.3d 732, 736;
see Belt Casualty Co. v. Furman (1933) 218 Cal. 359, 362.) The moving party
seeking intervention always bears the burden of proving entitlement to party
status. (People v. Brophy (1942) 49 Cal.App.2d 15, 34.) California courts
consider federal precedent under Federal Rules of Civil Procedure, rule 24
when analyzing section 387 motions. (Edwards v. Heartland Payment
Systems, Inc. (2018) 29 Cal.App.5th 725, 732 (Edwards).) And we “ ‘liberally
construe[]’ ” section 387 in favor of non-party movants (City of Malibu v.
California Coastal Com. (2005) 128 Cal.App.4th 897, 902), “ ‘ “guided
primarily by practical and equitable considerations.” ’ ” (Callahan v.
Brookdale Senior Living Communities, Inc. (9th Cir. 2022) 42 F.4th 1013,
1020 (Callahan).)
The threshold requirement that the non-party possess an “interest” in
the litigation—textually defined under section 387, subdivision (d)(1)(B) as
“an interest relating to the property or transaction that is the subject of the
action” and under subdivision (d)(2) as an “interest in the matter in
litigation”—requires the non-party’s interest to “be direct rather than
consequential.” (People v. Superior Court (Good), supra, 17 Cal.3d at p. 736.)
Consistent with the approach courts take to construction of the statute
generally, the standard is a practical one, requiring that we look to whether
“ ‘the intervener will either gain or lose by the direct legal operation and
effect of the judgment.’ ” (Jersey Maid Milk Products Co. v. Brock (1939)
13 Cal.2d 661, 663; see Elliott v. Superior Court (1914) 168 Cal. 727, 734.)
These foundational principles, all enunciated prior to 1977, continue to
govern construction of the statute today. What is different now is that, under
the bifurcated scheme taken from Federal Rules of Civil Procedure, rule 24,
nonparties must be permitted to intervene under section 387, subdivision
8
(d)(1)(B) if they: (1) file a timely application, (2) have “an interest relating to
the property or transaction that is the subject of the action,” (3) are “so
situated that the disposition of the action may impair or impede [their]
ability to protect that interest,” and (4) show that their interest is not
“adequately represented by one or more of the existing parties.” (United
States v. Alisal Water Corp. (9th Cir. 2004) 370 F.3d 915, 919.)
The burden to qualify for intervention as-of-right is “minimal” and
evidence showing that existing representation “may be” inadequate suffices.
(Trbovich v. United Mine Workers (1972) 404 U.S. 528, 538, fn. 10; Barnes v.
Security Life of Denver Ins. Co. (10th Cir. 2019) 945 F.3d 1112, 1124–1125.)
“[T]hree factors . . . determin[e] the adequacy of representation: (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. [¶] The most important factor in determining the adequacy of
representation is how the interest compares with the interests of existing
parties.” (Arakaki v. Cayetano (9th Cir. 2003) 324 F.3d 1078, 1086.) “[T]he
requirements for intervention are broadly interpreted in favor of
intervention.” (United States v. Alisal Water Corp., supra, 370 F.3d at
p. 919.)
In some circumstances, the outcome of this three-factor test for
adequacy of representation is determined by a presumption. “When an
applicant for intervention and an existing party have the same ultimate
objective, a presumption of adequacy of representation arises.” (Arakaki v.
Cayetano, supra, 324 F.3d at p. 1086.) “If the applicant’s interest is identical
to that of one of the present parties, a compelling showing [is] . . . required to
9
demonstrate inadequate representation.” (Ibid.) But where “ ‘the absentee’s
interest is similar to, but not identical with, that of one of the parties,’ that
normally is not enough to trigger a presumption of adequate representation.”
(Berger v. North Carolina State Conference of the NAACP (2022) 597 U.S.__
[142 S.Ct. 2191, 2204] (Berger); see Trbovich, supra, 404 U.S. at p. 538.)
Permissive intervention, which works quite differently than
intervention as-of-right, essentially carries forward the discretionary regime
on which section 387 was originally founded. “A trial court may . . . ‘permit a
nonparty to intervene in [an] action . . . if the [nonparty] has an interest in
the matter in litigation, or in the success of either of the parties, or an
interest against both.’ ” (§ 387, subd. (d)(2), italics added.) Intervention will
generally be permitted if: “ ‘(1) the proper procedures have been followed[,]
(2) the nonparty has a direct and immediate interest in the action[,] (3) the
intervention will not enlarge the issues in the litigation[,] and (4) the reasons
for the intervention outweigh any opposition by the parties presently in the
action.’ ” (City and County of San Francisco v. State of California (2005)
128 Cal.App.4th 1030, 1036.)
While a comparison of interests analysis focused on the non-party
intervenor is required for mandatory intervention under section 387,
subdivision (d)(1)(B), courts undertake a balancing of party and non-party
interests under section 387, subdivision (d)(2). Here, too, we take federal
precedent under Federal Rules of Civil Procedure, rule 24 into account.
Permissive intervention requires “balanc[ing] the interests of [nonparties]
affected by a judgment against the interests of the original parties in
pursuing their case unburdened by others.” (South Coast Air Quality
Management District v. City of Los Angeles (2021) 71 Cal.App.5th 314, 320,
review den. Feb. 16, 2022.) A trial court has broad discretion to strike this
10
balance. (City and County of San Francisco v. State of California, supra,
128 Cal.App.4th at p. 1037.) And we may find that the trial court abused its
discretion only if its decision exceeds the bounds of reason.
Although some courts refer to discretionary balancing of the interests of
the non-party movant and the existing parties as the objective of section 387
generally, the text of subdivisions (d)(1)(B) (mandatory intervention) and
(d)(2) (permissive intervention) indicates that the analysis under these two
provisions has a sharply different focus. The commentary on Federal Rules
of Civil Procedure, rule 24(a)(2) and (b) in a leading federal treatise, as
transposed onto section 387, is apt. The sole focus of the mandatory
intervention analysis is on whether “denial of intervention [will] have a
significant enough effect on the movant[.] Considerations regarding
prejudice to original parties are not incorporated in the [subdivision (d)(1)(B)]
criteria. The chief focus of [subdivision (d)(1)(B)] is on the movant.”
(6 Moore’s Federal Practice – Civil (2023) § 24.03 [1][c].) In contrast,
subdivision (d)(2) permissive intervention examines what the movant
proposes to add to the litigation, while taking into account “other factors,
such as harm to the existing parties and delays.” (6 Moore’s Federal Practice
– Civil, supra, § 24.03 [1][c].)
2. Standard of Review
The parties dispute the standard of review applicable to an order
denying intervention. Piplack and Taylor urge us to undertake de novo
review, while Accurso and In-N-Out advocate abuse of discretion review.
Courts have not settled on which of these standards is correct (Edwards,
supra, 29 Cal.App.5th at p. 732) or indeed whether it may be said that there
is a generally applicable standard. We think this lack of clarity in the case
11
law elucidating the applicable standard of review stems from a lag in the case
law in catching up to the significance of the 1977 amendment of the statute.
For many years, the uniformly accepted standard was abuse of
discretion. (E.g., People v. Superior Court (Good), supra, 17 Cal.3d at p. 737);
see Isaacs v. Jones (1898) 121 Cal. 257, 261 [“[w]hether any particular case is
within the terms of the premises is best determined by a consideration of the
facts of that case”].) But once the statute was amended in 1977 to track the
bifurcated federal scheme of mandatory and permissive intervention, the
terminology of de novo review began to appear in some mandatory
intervention cases (e.g., Hodge v. Kirkpatrick Development, Inc. (2005)
130 Cal.App.4th 540, 547, fn. 2), typically where the nature and character of
the proposed intervener’s interest in joining the litigation was a question of
statutory interpretation (e.g., Lindelli v. Town of San Anselmo (2006)
139 Cal.App.4th 1499, 1504), as it is here.
In this case, we will review the denial of mandatory intervention de
novo, not just because an issue of statutory interpretation is at stake, but also
because de novo review best accords with the Legislative intent in 1977 to
correct what the Legislature perceived as a reluctance by courts to exercise
their discretion in a manner that gives unrepresented or underrepresented
parties access to court to protect their interests.10 “[C]oncerns of judicial
10 The 1977 revision was “designed to protect the rights of interested
third parties to intervene in court cases which may significantly affect their
civil rights.” (Sen. Com. on Judiciary, Background Information for Sen. Bill
No. 750 (1977–1978 Reg. Sess.) as introduced Mar. 31, 1977, p. 2 (Senate Bill
750 Background Information).) Citing failed efforts by interested parties to
intervene in DeRonde v. Regents of University of California (1981) 28 Cal.3d
875, cert. denied (1981) 454 U.S. 832, and Bakke v. Regents of University of
California (1976) 18 Cal.3d 34, affirmed in part and reversed in part (1978)
12
administration—‘ “efficiency, accuracy, and precedential weight” ’ ” (Haworth
v. Superior Court (2010) 50 Cal.4th 372, 384)—favor a standard that allows
appellate courts to ensure all parties who have a right to participate in
judicial proceedings have the opportunity to do so where the Legislature has
expressed a categorical preference on the issue. Thus we have what may be
fairly described as a “mixed question of law and fact.” (Ibid.) This is
consistent with the federal approach to the standard of review under Federal
Rules of Civil Procedure, rule 24. (See Callahan, supra, 42 F.4th at p. 1019
[“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.”].)
We will review the denial of permissive intervention, on the other hand,
for abuse of discretion as traditionally understood. Without exception, courts
today continue to apply the traditional, more deferential abuse of discretion
standard for permissive intervention. (E.g., South Coast Air Quality
Management District v. City of Los Angeles, supra, 71 Cal.App.5th 314, 320;
Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th
1416, 1428.) That is as it should be, we think, because in striking the
requisite balancing of party and non-party interests, the range of criteria
courts may reasonably consider is inherently case-specific. (See City and
438 U.S. 265 and abandoned in Students for Fair Admissions, Inc. v.
President and Fellows of Harvard College (2023) 600 U.S. ___ [143 S.Ct
2141], the bill sponsor stated, “ ‘My bill will . . . give [marginalized groups] an
opportunity to speak in their own behalf on any litigation which affects
them.’ ” (Senate Bill 750 Background Information, supra, at p. 3; see Senate
Bill 750, Assem. 3d reading analysis as amended June 1, 1977, p. 1 [“the
purpose of this bill is to permit the adequate protection of the vital interests
of third parties in public interest litigation” such as DeRonde and Bakke].)
13
County of San Francisco v. State of California, supra, 128 Cal.App.4th at
pp. 1036–1037.) Even where the abuse of discretion standard applies,
however, we must bear in mind the caveat that a court necessarily abuses its
discretion where it relies on a mistaken legal premise. (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) And of
course, the range of discretion is not limitless, as there are circumstances in
which, on the facts presented, discretion may reasonably be exercised in only
one way. (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579.)
B. Legal Principles: PAGA
Before turning to the trial court’s intervention rulings on the merits, we
sketch out some PAGA background principles that provide the foundation for
our intervention analysis. A PAGA action is designed to protect the public,
not to benefit private parties. (Amalgamated Transit Union, Local 1756,
AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.) PAGA “does not
create property rights, or any other substantive rights” for aggrieved
employees. (Ibid.) It is a procedural statute authorizing private citizens to
seek civil penalties that State agencies otherwise would recover. (LaFace v.
Ralphs Grocery Co. (2022) 75 Cal.App.5th 388, 397.) The PAGA statutory
scheme permits the deputization of multiple private parties to pursue
“separate but similar actions by different employees against the same
employer.” (Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 866.)
But this deputization occurs only after (1) the deputized proxy satisfies
PAGA’s notice requirements, and (2) the Labor Workforce and Development
Agency (LWDA) indicates “it does not intend to investigate the alleged
violation” or does not timely respond. (LaFace v. Ralphs Grocery Co., supra,
75 Cal.App.5th at p. 394; see Lab. Code § 2699.3, subd. (a)(2)(A).) Notice to
the LWDA in this scheme is required as a matter of administrative
14
exhaustion before litigation may proceed. “ ‘Before bringing a civil action for
statutory penalties, an employee must comply with Labor Code section
2699.3.’ [Citation.] That section ‘requires the employee to give written notice
of the alleged Labor Code violation to both the employer and the [LWDA],
and the notice must describe facts and theories supporting the violation.’
[Citation]. ‘Proper notice under section 2699.3 is a “condition” of a PAGA
lawsuit.’ ” (Uribe v. Crown Building Maintenance Co. (2021) 70 Cal.App.5th
986, 1003 (Uribe).)
The delegation of enforcement power from the LWDA to the aggrieved
employee is not open-ended. It gives the proxy control of the penalty claims
identified in his written notice to the LWDA, but is limited in scope to the
specific facts and theories stated in the notice. (Uribe, supra, 70 Cal.App.5th
at p. 1003; Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824.) Because
a proxy’s PAGA authority derives from and is bounded by the LWDA notice
on which it is founded (Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th
804, 808–810; Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59), the
enforcement power a PAGA claimant receives upon perfecting a PAGA claim
is not a roving warrant to collect penalties for any violation of the Labor Code
that may be discovered in subsequent litigation, or that may be raised in
settlement negotiations by rogue PAGA claimants purporting to deal with
matters beyond their authority.
C. Turrieta v. Lyft and the Threshold Interest-in-the-Litigation
Requirement
Against this legal backdrop, the trial court decided that Piplack and
Taylor have no “personal” interest in the PAGA claims between plaintiff
Accurso and In-N-Out, and thus that they cannot satisfy the threshold
standing requirement for mandatory or permissive intervention, even though
15
they are PAGA claimants in separate actions that overlap with Accurso. As
noted above, in support of this ruling, the court relied on Turrieta, finding
that case more closely on point than our decision in Moniz. We disagree.
In Turrieta, the appellants, Olson and Seifu, and plaintiff Turrieta filed
separate PAGA actions alleging overlapping claims relating to Lyft’s alleged
misclassification of its drivers as independent contractors. When Turrieta
reached a settlement in her action, the appellants unsuccessfully moved to
intervene and to vacate the judgment approving Turrieta’s settlement.
(Turrieta, supra, 69 Cal.App.5th at pp. 964–965, 967, rev.gr.) On appeal,
Turrieta and Lyft successfully moved to dismiss for lack of appellate standing
under section 902 (Turrieta, at p. 967), and thus the issue of Olson and
Seifu’s standing to pursue the appeal was the primary focus of the appellate
court’s opinion (id. at pp. 967–968).
The court reasoned that Olson and Seifu were not “aggrieved parties”
pursuant to section 902. A party is aggrieved “ ‘only if its “rights or interests
are injuriously affected by the judgment.” ’ ” (Turrieta, supra, 69 Cal.App.5th
at p. 971, rev.gr.) The court rejected the appellants’ contention that they
were aggrieved in their capacity as designated proxies for the state. (Ibid.)
The court reasoned that in a PAGA action, the state is the real party in
interest, and PAGA representatives who file a claim on behalf of the state do
“not convert the state’s interests into their own or render them real parties in
interest.” (Turrieta, at p. 972.) Thus, because “it is the state’s rights, and not
appellants’, that are affected by a parallel PAGA settlement, appellants are
not aggrieved parties with standing to seek to vacate the judgment or
appeal.” (Turrieta, at p. 972.)
Having determined that the Turrieta appellants had no standing to
appeal, the court then proceeded to decide the issue presented for merits
16
review, addressing whether, under section 387, the trial court correctly
denied the appellants’ motion to intervene in the trial. On that issue, the
appellate court effectively collapsed its ruling on appellate standing into its
ruling on intervention in the trial court. For the same reason the panel found
no standing to appeal—the appellants had no “personal” rights at stake in a
PAGA action filed by another PAGA claimant—it concluded the appellants
did not have a right to intervene because they could not show they had a
“direct and immediate interest in the settlement.” (Turrieta, supra,
69 Cal.App.5th at p. 977, rev.gr.)
This analysis conflates a series of distinct legal issues under the rubric
of standing. Whether an appellant has standing as “a party aggrieved” under
section 902 (which is where we parted ways with Turrieta in Moniz) is not the
same as whether a non-party must or may be allowed to intervene under
section 387. These issues are separate. Though they are related and in
outcome may often be resolved the same way, they should not be equated.
When dealing with section 387 intervention issues, we believe the use of
standing terminology obscures the correct analysis in PAGA cases. The
resulting lack of clarity, in our view, is evident in Turrieta, where the court
found it dispositive that Olson and Seifu had no “personal” interest in
plaintiff Turrieta’s case for purposes of both section 902 and section 387
analysis. But nothing in the pertinent statutory language requires that an
“interest” (section 387) or an “aggrievement” (section 902) be “personal.” Nor
does the relevant case law under either statute impose any such
requirement.11
11 It is particularly important to avoid imprecise use of the term
“standing” in this context, since federal courts sitting in diversity or
17
As we observed in Moniz, the Turrieta court appeared to “discount” the
role of deputized PAGA claimants as “designated proxies of the state.”
(Moniz, supra, 72 Cal.App.5th at p. 73.) Where our esteemed colleagues in
Turrieta went off track, we think, was their implicit premise that a putative
intervenor must have a pecuniary or property interest in potential recovery to
warrant intervention. That sort of test will often be met in purely private
litigation where the spoils are measured in money damages or where
property ownership is at stake, but where litigants have a legitimate claim to
representation of the public interest, “the intervener need neither claim a
pecuniary interest nor a specific legal or equitable interest in the subject
matter of the litigation.” (See Simpson Redwood Co. v. State of California
(1987) 196 Cal.App.3d 1192, 1200 [Save-The-Redwoods League members’
claimed right to use public lands]; County of San Bernadino v. Harsh
exercising their supplemental jurisdiction often address standing in federal
PAGA cases—a valuable source of PAGA precedent, albeit one that has
persuasive value only— through the constitutional lens of “case or
controversy” standing under article III of the United States Constitution.
(E.g., Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668,
677–680.) The concept that a plaintiff must have a “personal” stake in his or
her case is at the root of federal standing law under article III (TransUnion
LLC v. Ramirez ( 2021) 594 U.S.___ [141 S.Ct. 2190, 2203] [“For there to be a
case or controversy under Article III, the plaintiff must have a ‘ “personal
stake” ’ in the case—in other words, standing”], but plays no such
foundational role in the California courts. As a matter of California
procedure, standing under PAGA is statutory in nature. Notably, PAGA is
not the only setting in California law where plaintiffs with no individualized,
personal stake in the relief sought have standing to sue. (See e.g., Blair v.
Pitchess (1971) 5 Cal.3d 258, 267 [taxpayer standing under Code of Civil
Procedure section 526a]; Silver v. City of Los Angeles (1961) 57 Cal.2d 39, 40–
41 [common law taxpayer standing].)
18
California Corp. (1959) 52 Cal.2d 341, 346 [right of the United States to
protect its fiscal policy].) A major objective of the 1977 amendment of section
387, as we read the Legislative history, was to facilitate intervention by third
parties claiming stakes imbued with the public interest as a basis for
participation in the litigation of others.
To accommodate a broad understanding of the range of cognizable
interests that may justify intervention under section 387, the case law under
Federal Rules of Civil Procedure supplies some helpful terminology. Federal
courts speak of a “significantly protectable interest.”12 That phrase is
capacious enough to encompass the narrow, pocket-book objectives of most
private litigants, the broader objectives of public interest advocates,13 and the
parens patrie objectives of those who seek to fulfill duties conferred upon
12 Donaldson v. United States (1971) 400 U.S. 517, 531, superseded by
statute as stated in United States v. Peoples Benefit Life Ins. Co. (2d Cir.
2001) 271 F.3d 411, 415. Another, substantially equivalent formulation
frequently used in Federal Rules of Civil Procedure, rule 24 case law is
“direct, non-contingent, substantial and legally protectible interest.” (See
e.g., Southern California Edison Co. v. Lynch (9th Cir. 2002) 307 F.3d 794,
803; Washington Elec. Co-op., Inc. v. Massachusetts Municipal Wholesale
Electric Co. (2d Cir. 1990) 922 F.2d 92, 97.)
13 See La Union del Pueblo Entero v. Abbott (5th Cir. 2022) 29 F.4th
299, 305–306 (“[A] ‘legally protectable interest’ does not mean the interest
must be ‘legally enforceable’: ‘[A]n interest is sufficient if it is of the type that
the law deems worthy of protection, even if the intervenor does not have an
enforceable legal entitlement or would not have standing to pursue her own
claim.’ [Citation.] In fact, we have said that in a case involving ‘a public
interest question’ that is ‘brought by a public interest group,’ the ‘interest
requirement may be judged by a more lenient standard.’ ”).
19
them by law.14 California courts recognize that a wide range of interests
qualify under section 387,15 but to date have not adopted a consistently used
phraseology. We join other courts that have adopted the phrasing used in
Federal Rules of Civil Procedure, rule 24 cases (Carlsbad Police Officers Assn.
v. City of Carlsbad (2020) 49 Cal.App.5th 135, 148; Edwards, supra,
29 Cal.App.5th at p. 732) and hold that non-party PAGA claimants who seek
to intervene in overlapping PAGA cases must have a “significantly
protectable interest” that meets the threshold requirements of section 387. A
personal interest is not required.
D. Intervention Analysis
Turning to our intervention analysis under section 387, we summarize
our conclusions, in two steps, as follows.
First, applying de novo review, we agree with the trial court’s decision
to deny mandatory intervention, though not for the reason the trial court
gave. (See Ross v. Superior Court (2022) 77 Cal.App.5th 667, 681 [“ ‘It is well
14 Cascade Natural Gas Corp. v. El Paso Natural Gas Co. (1967)
386 U.S. 129, 133 (state whose citizens were impacted by interstate gas
prices, public utility purchaser of interstate gas, and regional distributor of
interstate pipeline’s gas have right to intervene in settlement approval
proceedings in antitrust case on behalf of gas users in their regions where
consent decree requiring break up of interstate pipeline monopoly potentially
affected gas prices in those regions).
15 Perry v. Brown (2011) 52 Cal.4th 1116, 1126 (because of “the unique
role of initiative proponents in the constitutional initiative process as
recognized by numerous provisions of the Elections Code, it would clearly
constitute an abuse of discretion for a court to deny the official proponents of
an initiative the opportunity to participate as formal parties in the
proceeding, either as interveners or as real parties in interest”).
20
settled that an appellate court reviews the ruling of the trial court, not its
rationale’ ”].) Here, the court was right to reject most of the arguments
Piplack and Taylor made in an effort to justify their claim to intervention as-
of-right, but not because they lack a “personal interest” in joining Accurso’s
case. Having been deputized to pursue PAGA claims on behalf of the State of
California that may be foreclosed by a settlement or adjudication of this case,
they have significantly protectable interests for purposes of section 387.
Although we believe Piplack and Taylor as deputized LWDA proxies have
significantly protectable interests, in the end we conclude that they failed to
bear their burden of proving inadequate representation or potential
impairment of their protectable interests. The prospect that Accurso might
someday enter into a settlement purporting to resolve PAGA claims he is not
authorized to resolve fails to satisfy that burden in either respect.
Second, the denial of permissive intervention was an abuse of
discretion. In relying on Turrieta’s holding that a non-party PAGA claimant
seeking to intervene in another PAGA case has no interest warranting
intervention, the court based its exercise of discretion on an erroneous legal
premise, and as a result effectively failed to exercise discretion at all. Had
the court moved past Turrieta, and found an interest sufficient to satisfy the
threshold requirement for intervention, as we conclude it should have, the
permissive intervention standard does not require a showing of inadequate
representation, which is the stumbling block Piplack and Taylor fail to
overcome for mandatory intervention. The governing permissive intervention
statute, section 387, subdivision (d)(2), does not mention that issue. Because
the analysis of permissive intervention fundamentally boils down to a
discretionary weighing of whether Piplack and Taylor propose to add
anything to this case the importance of which outweighs any objections
21
Accurso and In-N-Out may have to the court hearing it, we shall remand for
the court to conduct the appropriate analysis and balancing.
We now turn to a more in-depth elaboration of our reasoning under
each of the relevant provisions of section 387.
1. Mandatory Intervention
a. Exclusive Delegation and Joint Agency
As deputized proxies for the LWDA, Piplack and Taylor each have a
public enforcement charge that qualifies as a significantly protectable
interest. Any settlement of a PAGA claim within the ambit of their LWDA
proxy authorizations by an interloper acting ultra vires—which is what
Piplack and Taylor accuse Accurso of being—could potentially impair the
legitimate proxy authority conferred upon Piplack and Taylor.
Since Piplack and Taylor possess a legal interest sufficient to trigger
eligibility for intervention as-of-right, their entitlement to mandatory
intervention turns on the issues of adequacy of representation and whether
they are “so situated that the disposition of the action may impair or impede”
their protectable interests. (§ 387, subd. (d)(1)(B).) Piplack and Taylor claim
to have the exclusive right to litigate PAGA claims within the scope of their
own LWDA notices. According to them, as first-to-file PAGA claimants on
legal theories falling within the purview of Accurso’s case, they have primacy
over Accurso, who is a subsequent PAGA claimant against the same
employer. Accurso’s case, they suggest, cannot cover claims only Piplack and
Taylor are authorized to pursue, yet Accurso appears to be attempting to
litigate—and settle—those claims anyway.
We view this claim of “first-to-file” exclusivity as an overreach. The
precedent Piplack and Taylor rely upon stands for the proposition (at least in
their reading of the law) that any delegation of discretionary governmental
22
power is in the nature of a public trust and must be confined to one delegee.
(See County of Kern v. Pacific Gas & Electric Co. (1980) 108 Cal.App.3d 418,
421; Sacramento Chamber of Commerce v. Stephens (1931) 212 Cal. 607, 609;
City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (2003)
113 Cal.App.4th 465, 477.) We should apply this principle, Piplack and
Taylor contend, because, if we do not, Accurso’s attempt to pursue an
independent PAGA claim that they alone have been given authorization to
prosecute by an executive branch agency would violate the doctrine of
separation of powers.
We are unpersuaded. County of Kern, Sacramento Chamber of
Commerce, and City of Burbank all involve delegations of some form of
legislative power. Whatever the reach of their holdings in that setting, this
line of cases has never been applied to delegations of law enforcement power.
We decline the invitation to rely on it as a basis for giving primacy to one
dueling PAGA claimant over another. The premise of the argument is that,
when the LWDA deputizes a PAGA claimant, the authority it confers must be
construed as exclusive in light of these cases. But that is not how we read the
statutory scheme. A basic objective of PAGA is to supplement the limited
enforcement resources of the LWDA by leveraging the cumulative resources
of private parties.
Because the “first to file” theory Piplack and Taylor propose would
severely limit the number of private prosecutors the State may unleash to
pursue any given employer—including large scale employers such as In-N-
Out—their interpretation runs contrary to the statutory purpose. (Adolph v.
Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1122 [“ ‘The Legislature’s sole
purpose in enacting PAGA was “to augment the limited enforcement
capability of the [LWDA] by empowering employees to enforce the Labor
23
Code as representatives of the Agency.” ’ ”]; Williams v. Superior Court (2017)
3 Cal.5th 531, 546 [the legislature enacted PAGA to “expand[] the universe of
those who might enforce the law, and the sanctions violators might be subject
to, . . . to remediate present violations [of the Labor Code] and deter future
ones.”].)
Statutes conferring law enforcement authority on multiple civil
prosecutors to pursue the same defendant for conduct arising from the same
act or series of related acts are common.16 Nothing about PAGA implicates
separation of powers concerns simply because the Legislature chose to use a
scheme of private deputization modelled on a traditional qui tam mode of
enforcement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014)
59 Cal.4th 348, 382 [“[a]lthough the PAGA was enacted relatively recently,
the use of qui tam actions is venerable, dating back to colonial times”],
abrogated on other grounds, Viking River Cruises, Inc. v. Moriana (2022)
596 U.S. ___ [142 S.Ct. 1906, 1923–1925].)
Without doubt, the problems of case management created by the PAGA
scheme can sometimes present novel and challenging issues.17 But we think
16 See e.g., California Labor Code section 2786; Business and
Professions Code section 17204.
17 Compare, e.g., Wesson v. Staples the Office Superstore, LLC (2021)
68 Cal.App.5th 746, 762–763 (“courts have inherent authority to ensure that
a PAGA claim will be manageable at trial—including the power to strike the
claim, if necessary”) with Estrada v. Royalty Carpet Mills, Inc. (2022)
76 Cal.App.5th 685, 697 (disagreeing that striking difficult to manage claims
is consistent with the statutory scheme, but acknowledging that “[c]ourts
may still, where appropriate and within reason, limit the amount of evidence
PAGA plaintiffs may introduce at trial to prove alleged violations to other
unrepresented employees”), review granted June 22, 2022, S274340.
24
ordinary rules of civil procedure, supplemented where necessary and
appropriate by rules governing coordination of complex cases,18 are adequate
to the task of resolving the difficult procedural problems that arise when
multiple LWDA-deputized PAGA claimants sue the same target employer in
different courts. (E.g. Arias v. Superior Court (2009) 46 Cal.4th 969, 986
[“Because an aggrieved employee’s action under [PAGA] functions as a
substitute for an action brought by the government itself, a judgment in that
action binds all those, including nonparty aggrieved employees, who would be
bound by a judgment in an action brought by the government.”].)19 We see no
need to employ the heavy artillery of constitutional argument to accomplish
that end.
Alternatively, Piplack and Taylor offer a “joint agency” argument to
justify their intervention in Accurso’s case, but we find that argument to be
no more persuasive than their more ambitious, constitutional effort to justify
what they call exclusive delegation. This secondary line of argument rests on
the common law of agency. A background principle of PAGA procedure
enunciated in Julian is that more than one PAGA claimant may be deputized
to pursue overlapping PAGA claims against a single employer. If this
18 Code of Civil Procedure, section 404 et seq.; California Rules of
Court, rule 3.501 et seq.; see Doe v. Google, Inc. (2020) 54 Cal.App.5th 948,
969.
19 See Guerrero v. Department of Corrections & Rehabilitation (2018)
28 Cal.App.5th 1091 (claim preclusion); Ayala v. Dawson (2017)
13 Cal.App.5th 1319 (issue preclusion). We have no occasion here to address
the reach of these preclusion rules, except to note, as we did in Moniz, that
the preclusive effect of a prior PAGA judgment will be determined by the
court in which the defense of preclusion is asserted, not by the court
rendering the judgment. (Moniz, supra, 72 Cal.App.5th at p. 84.)
25
principle is sound—and we think it is—Piplack and Taylor contend they
should be viewed as joint agents, which means that Accurso cannot act alone.
(See Hill v. Den (1879) 54 Cal. 6 [the sole act of one of two joint agents under
a delegation from a trustee is void]; Rest.2d Agency § 41., com. a.)
It is true, of course, that our Supreme Court has described authorized
PAGA claimants as “agents” of the LWDA (Arias v. Superior Court, supra,
46 Cal.4th 969, 986), but we doubt that in using this nomenclature the court
intended to signal an intent to superimpose every intricacy of the common
law of agency onto the PAGA statutory scheme. If Piplack and Taylor are
viewed as joint agents pursuing a common enterprise with Accurso, they
would have not just a right to enter plaintiff Accurso’s case as interveners,
but a veto right over any settlement to which they objected. We reject that
notion. It has long been recognized that “common-law agency doctrines are
inapplicable in certain statutory contexts” (Rest.3d Agency, Introduction),
and we think this is one of them, particularly since a deputized proxy for the
LWDA is not a “true agent.” (See Rest.3d Agency, § 1.01; id., com. b. [“Some
statutes and many cases use agency terminology when the underlying
relationship falls outside the common-law definition.”].)
b. Potential Impairment of Significantly Protectable Interests and
Adequacy of Representation
Retreating to narrower, more conventional grounds that they say
establish their interests stand to be impaired or impeded by an inadequate
representative, Piplack and Taylor emphasize that they are at risk of any
adjudication or stipulated judgment entered by a claimant without proper
authority foreclosing their claims. Taking the issue of impairment first, we
agree that Piplack and Taylor do not need to establish that their interests
will be impaired. The requisite showing is minimal, and is met where there
26
is a “substantial probability” that the interest will be so affected. (Simpson
Redwood Co. v. State of California, supra, 196 Cal.App.3d at p. 1201;
WildEarth Guardians v. U.S. Forest Service (10th Cir. 2009) 573 F.3d 992,
995 [establishing impairment element presents a minimal burden].) But on
this record, we cannot say Piplack and Taylor have met even that modest
burden.
Inadequacy of representation presents a closer issue. Without viable
penalty claims covering expense reimbursement (which Piplack is pursuing)
or claims for uniform donning and doffing time (which Taylor sought to
pursue in her original complaint before deferring, procedurally, to Piplack),
they insist that Accurso—as the self-appointed private attorney general for
all PAGA claims against In-N-Out—has very little negotiating leverage
against In-N-Out and cannot maximize the settlement value of his penalty
claims because he failed to obtain LWDA authorization to cover uniform-
related claims against In-N-Out. And, so they argue, because Accurso has no
meaningful leverage and no authority to act as the State’s proxy for the
majority of Labor Code violations or for periods of time earlier than those
covered by his LWDA notice, he likely was (and still remains) willing to
compromise the State’s interest too cheaply.20
20 Pushing this argument to its limits, Piplack and Taylor attempt to
frame the issue in jurisdictional terms. They contend the trial court lacks
fundamental jurisdiction to entertain PAGA claims going beyond the Accurso
LWDA notice and hence to enter judgment on a settlement purporting to
release anything more. A judgment in such a case would be void, they argue.
We disagree with that analysis and decline to go so far. In jurisdictional
terms, the prospect that the scope of a settlement or adjudication of this case
may go beyond Accurso’s LWDA notice creates the prospect that to some
extent the proceedings in this case may be in excess of the court’s jurisdiction
27
Relying heavily on the presumption of adequate representation where
an existing party is pursuing the same litigation objectives as the putative
intervenor, Accurso and In-N-Out argue that Accurso shares the same
objective with Piplack and Taylor as a deputized PAGA enforcement proxy
and that the only daylight between him and these two are mere differences of
strategy.21 They also point out that, in the end, there was no settlement here;
that Piplack and Taylor have no valid basis to speculate about what might
have been in an unconsummated settlement; and thus that the entire basis of
the intervention motion from Piplack and Taylor—their asserted need to
participate in the settlement approval process to guard against
overbreadth—has evaporated. According to Accurso and In-N-Out, Accurso’s
case is still at an early stage and nothing in his litigation record so far
indicates a lack of zealousness.
Piplack and Taylor have a different view, of course. Arguing against
any presumption of adequate representation, they rely on Berger, a Federal
(voidability), not that the court lacks fundamental jurisdiction (voidness).
(Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 221–222; see Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 291.)
21 Accurso begins his version of this argument with the unexplained
pronouncement that “As a preliminarily matter, there is no adequacy
requirement in a PAGA action.” This contention appears to be a reiteration
of his reliance on Turrieta; earlier in his responding brief, Accurso states that
“the LWDA alone has the ability to express its views on the adequacy of any
potential settlement of PAGA claims.” That appears to be the premise of the
suggestion that any analysis of adequacy of representation can be
disregarded in a PAGA action. As explained above, we disagree that Turrieta
controls, and in any event we reject the idea that there is anything in the
PAGA statutory scheme that makes it unnecessary to consider adequacy of
representation in an analysis of mandatory intervention under section 387,
subdivision (b)(1)(D) in PAGA actions.
28
Rule of Civil Procedure 24(a)(2) mandatory intervention case where two
North Carolina legislators successfully forced their way into a voting rights
lawsuit against the North Carolina board of elections in which the board was
defended by the state attorney general. The legislators pointed out that
North Carolina law expressly authorized them “to intervene on behalf of the
General Assembly as a party in any judicial proceeding challenging a North
Carolina statute or provision of the North Carolina Constitution.” (Berger,
supra, 142 S.Ct. at p. 2202.) The high court explained that, where a state has
conferred the power to represent it on two agents of government, one in the
legislative branch and one in the executive branch, it is inappropriate to
apply a presumption that only one of these designated champions of the
state’s interest will adequately represent all relevant perspectives of the
state. (Id. at p. 2203.) As a policy matter, the high court recognized the
dangers of the race-to-the-bottom phenomenon some courts have described in
the PAGA context using the rubric of “reverse auctions.”22
22 See Berger, supra, 142 S.Ct. at p. 2201 (construing Federal Rule of
Civil Procedure 24(a)(2) to preclude the participation of multiple agents of the
state that the Legislature contemplated representing its interests in
litigation “would risk allowing a private plaintiff to pick its preferred
defendants and potentially silence those whom the State deems essential to a
fair understanding of its interests.”) “A reverse auction is said to occur when
‘the defendant in a series of class actions picks the most ineffectual class
lawyers to negotiate a settlement with . . . the hope that the district court will
approve a weak settlement that will preclude other claims against the
defendant.’ [Citation.] It has an odor of mendacity about it.” (Negrete v.
Allianz Life Ins. Co. of North America (9th Cir. 2008) 523 F.3d 1091, 1099;
see Uribe, supra, 70 Cal.App.5th at p. 990 & fn. 2 [using the term in the
PAGA context].) While we have recognized that this dynamic is to some
degree inherent in the PAGA statutory scheme (Shaw, supra, 78 Cal.App.5th
at p. 263), we must not overlook the real potential for abuse in it.
29
This effort by Piplack and Taylor to invoke Berger—the United States
Supreme Court’s most recent application of Federal Rules of Civil Procedure,
rule 24(a)(2)—is not without force. But in the end, we are unconvinced that
Berger controls. The principal teaching of that case is that federal courts may
not second-guess choices made by sovereign states about how to allocate
governmental power. (Berger, supra, 142 S.Ct. at p. 2201.) At issue there
was a contest between legislative branch and executive branch
representatives vying to represent North Carolina’s interests. We have no
such issue of inter-branch dispersion of power in this case. To privilege a
state executive over a legislature, the high court explained, “would . . . evince
disrespect for a State’s chosen means of diffusing its sovereign powers among
various branches and officials” and “risk turning a deaf federal ear to voices
the State has deemed crucial to understanding the full range of its interests.”
(Ibid.) “Nor are state interests the only interests at stake,” the court said.
“Respecting the States’ ‘plan[s] for the distribution of governmental powers’
also serves important national interests.” (Ibid.) Thus, the court held,
“[p]ermitting the participation of lawfully authorized state agents promotes
informed federal-court decisionmaking and avoids the risk of setting aside
duly enacted state law based on an incomplete understanding of relevant
state interests.” (Id. at p. 2202.)
There is no such titanic structural clash of governmental interests at
issue here. Though we agree with Accurso and In-N-Out that Berger is
distinguishable, we see no need to take the path they urge and apply a
presumption in this case. We will instead resolve the adequacy of
representation issue presented here, just as we do with the issue of potential
impairment, under the basic rule that a section 387 movant always bears the
burden of proof. Here, we conclude Piplack and Taylor fail to meet their
30
burden for two reasons. First, and most fundamentally, they did not provide
the trial court with any of the pertinent LWDA notices, Accurso’s or theirs.23
Compare, for example, the detailed record on this point in Uribe, supra,
70 Cal.App.5th 986, 992–993, 1003–1005. That case—which Piplack and
Taylor featured prominently in their arguments before the trial court—
should have provided a road map on the issue of inadequate representation.
All we have here, by contrast, is argument from counsel unsupported by
record citations.
Counsel for Piplack and Taylor made various representations to the
trial court about Accurso attempting to litigate and settle PAGA claims
exceeding the scope of his LWDA authorization, and they repeat those
representations on appeal, but they appear to have been so determined to
swing for the fences with broad legal arguments designed to secure a
paramount role for themselves in PAGA litigation against In-N-Out that they
overlooked the basic task of delineating what they claim is the limited scope
of Accurso’s LWDA authorization, which was the key to backing up their
claims of inadequate representation. To carry out that task, they needed to
produce competent, timely-produced evidence in support of their motion to
intervene. Given their failure to do so, the trial court properly denied
23 On our own motion (see Evidence Code section 459), we take judicial
notice under Evidence Code section 452, subdivision (h) that LWDA notices
may be requested under the California Public Records Act. (Govt. Code
§ 7920.000 et seq.)
31
mandatory intervention—not because Turrieta governs, but for the more
prosaic reason that Piplack and Taylor failed to bear their burden of proof.24
Second, the position Piplack and Taylor take on adequacy of
representation reduces to a claim that Accurso attempted to settle his case on
terms to which they would have objected and thus, as the proceedings in his
case move forward, Accurso cannot be trusted to stay within the boundaries
of his LWDA authorization. These suspicions about what might happen as
the case proceeds are insufficient to justify mandatory intervention at this
stage of the case. Although the requisite showing a proposed intervener must
make is a modest one, we agree with Accurso and In-N-Out that Piplack and
Taylor have failed to meet it. In the absence of an actual settlement
demonstrating that Accurso exceeded the scope of his LWDA authorization,
the mere potential that Piplack’s and Taylor’s interests “may be” unable or
unwilling to represent their interests in a future, hypothetical settlement is
speculative.
Boiled down to its essence, then, our analysis of mandatory
intervention is simple and straightforward: Piplack and Taylor failed to
support their intervention motion properly and they filed it prematurely,
before any settlement was submitted for approval.
24 Cf. Callahan, supra, 42 F.4th at pp. 1021–1022 (“[PAGA claimant]
Neverson . . . argues that [PAGA claimant] Callahan was not properly
deputized to pursue certain claims that were a part of . . . [Callahan’s PAGA]
settlement due to the statute of limitations having run on 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.” (Italics in original.)).
32
2. Permissive Intervention
Our analysis differs with respect to permissive intervention. To begin
with, we touch briefly on the demands of the PAGA settlement process. We
emphasized in Moniz that, “[i]n review and approval of a proposed [PAGA]
settlement . . . , a trial court . . . must scrutinize whether, in resolving the
action, a PAGA plaintiff has adequately represented the state’s interests, and
hence the public interest.” (Moniz, supra, 72 Cal.App.5th at p. 89.) In
analyzing the section 902 “aggrieved party” issue in that case, we stated that
“where two PAGA actions involve overlapping PAGA claims and a settlement
of one is purportedly unfair, it follows that the PAGA representative in the
separate action may seek to become a party to the settling action.” (Id. at
p. 73.) In that scenario, do nonparty PAGA claimants with overlapping
claims have something significant to add to the settlement approval process?
We think they may, and we are of the view that permissive intervention
supplies a means to make sure the perspective of potentially affected non-
party PAGA claimants is included in the settlement approval process.
Naturally, the proponents of a hard-won settlement will have little or
no incentive to point out that the proposed settlement terms exceed anyone’s
authority; that the releases given are overbroad; that the consideration is
inadequate; or that the allocation of money to be paid is in any respect unfair.
As a result, trial courts are often faced with the sometimes challenging task
of spotting deficiencies in a proposed PAGA settlement without assistance
from anyone other than participants to the settlement negotiations.25 But in
25 The LWDA, as a practical matter, appears rarely in these cases.
When it enacted PAGA in 2003, the Legislature was concerned that the
limited resources available to the LWDA impeded robust enforcement of
33
situations where PAGA claimants with their own overlapping claims in other
pending cases show up and wish to provide input, we see no reason why they
should not be given a seat at the table. And should trial courts wish to
ensure that such PAGA claimants are meaningfully involved in the
settlement approval process, permissive intervention even before the
settlement approval process begins may be a way to ensure that they are fully
prepared to do so.
In defense of the trial court’s out-of-hand dismissal of permissive
intervention after concluding that Turrieta controls, Accurso suggests that
Piplack and Taylor failed to present their motion for intervention under
section 387, subdivision (d)(2) in a timely manner. According to him, they
“sought to intervene only after failing to obtain a strong-arm consensus
among six different law firms regarding an agreement on the allocation of
attorneys’ fees between the firms at the outset of joint prosecution,” and “[o]n
this basis alone,” we “should affirm the trial court’s decision denying
permissive intervention.” We disagree. Piplack and Taylor point out,
correctly, that under section 387 timeliness measures from “ ‘the date the
proposed interveners knew or should have known their interests in the
litigation were not being adequately represented.’ ” (Lofton v. Wells Fargo
wage-and-hour laws. According to Piplack and Taylor, the problem of limited
state enforcement resources remains a concern under the PAGA regime, just
in a different form. Attached to Piplack and Taylor’s motion to intervene is a
budget change proposal (BCP) submitted to the Governor’s Department of
Finance in April 2019. This 2019 BCP reported, “Seventy-five percent of the
1,546 settlement agreements reviewed by the PAGA Unit in fiscal years
2016-2017 and 2017-2018 received a grade of fail or marginal pass, reflecting
the failure of many private plaintiffs’ attorney[s] to fully protect the interests
of the aggrieved employees and the state.”
34
Home Mortgage (2018) 27 Cal.App.5th 1001, 1013.) The record shows that
they brought their motion to intervene within a few weeks of learning that
settlement activity in Accurso’s case appeared to be on the immediate
horizon.
In-N-Out, for its part, contends that, if granted permissive intervener
status, Piplack and Taylor would “disrupt” the litigation. The trial court
made no such finding, and the proposed complaint-in-intervention from
Piplack and Taylor does not suggest that they wish to expand the scope of the
litigation on the merits. Section 387, subdivision (d)(2) contemplates that a
non-party may seek to join a case if it has “an interest in the success of either
of the parties, or in an interest against both.” (Italics added.) By raising the
issue of exclusive concurrent jurisdiction, Piplack and Taylor put in play a set
of prudential judicial comity concerns that do not neatly align with the
interests of either Accurso or In-N-Out. It is evident to us that this was an
important new perspective. Neither of the parties had an incentive to raise
the issue; what Piplack and Taylor proposed did not enlarge the scope of the
case; it burdened the court with nothing more than hearing the stay motion;
and, arguably, in the long run they sought to suggest a judicial economy
measure that might save judicial time in multiple courts, not take up more of
it.
In-N-Out argues that exclusive concurrent jurisdiction is an affirmative
defense that a defendant must raise by plea in abatement, and that it had no
obligation to assert such a defense in this case. Granted, the issue of
exclusive concurrent jurisdiction is typically raised by defendants, but as we
read the cases no court has ever said only a defendant can raise the issue.
Given the nature of the exclusive jurisdiction—it is a policy rule of judicial
35
comity (Shaw, supra, 78 Cal.App.5th at p. 25626)—that would make no sense.
Certainly, a court may raise the issue on its own motion. And since a court
may raise it sua sponte, we see no reason why an intervener may not propose
to raise it where no one else has done so, as Piplack and Taylor did here.
Accordingly, we will remand with directions that the court proceed to
consider Piplack and Taylor’s motions for permissive intervention and for a
stay, weighing arguments they make in favor of staying the case (fully or
partially) against any arguments Accurso and In-N-Out wish to offer for why
the motion should not be heard or should be denied.
For guidance on remand, we emphasize three points. First, on this
record—because of the narrow, procedural issue Piplack and Taylor propose
to litigate (i.e., exclusive concurrent jurisdiction in support of their motion for
a stay)—the issues of permissive jurisdiction and for a stay are closely
intertwined. While these two issues are formally distinct, the resolution of
the stay motion will as a practical matter dictate the outcome of the
permissive intervention motion because the court’s evaluation of the
exclusive concurrent jurisdiction issue will determine whether Piplack and
Taylor have something to add to this litigation that neither of the existing
parties can bring (or is willing to bring) to the case.
Second, we have no intention of placing a thumb on the scale of what
should happen when the trial court decides the motions for permissive
intervention and for a stay. Nothing we have said in this opinion is meant to
hint, without saying directly, that we think the best exercise of discretion
26 See People ex rel. Garamendi v. American Autoplan, Inc. (1993)
20 Cal.App.4th 760, 764–765, 769; Childs v. Eltinge (1973) 29 Cal.App.3d
843, 854–855.
36
must be to order a stay, fully or partially. We express no such view. We are
simply remanding so that discretion may be exercised according to the correct
legal criteria. As we see it, our treatment of permissive intervention in this
case simply confirms the availability of a case management tool busy trial
judges may wish to utilize in managing PAGA cases when a potentially
valuable source of information is available. Whether they use that tool is
committed to their sound discretion.
Third, in the event the court were to issue a stay, we do not view the
form of the stay as a binary issue that must be decided definitively for
Piplack and Taylor, or for Accurso and In-N-Out. It may be, for example,
that depending on the status of other proceedings Piplack and Taylor claim
have priority over this one,27 the court might wish to consider granting
27 We understand that, while this appeal has been pending,
circumstances have changed in the Orange County case. That court initially
denied In-N-Out’s motion to compel arbitration, and In-N-Out appealed in
the Fourth District Court of Appeal. While the appeal there was pending, the
United States Supreme Court decided Viking River Cruises, Inc. v. Moriana,
supra, 596 U.S. ___, 142 S.Ct. 1906, which reversed in part and affirmed in
part the California Supreme Court’s holding in Iskanian v. CLS
Transportation Los Angeles, LLC, supra, 59 Cal.4th 348 that arbitration
clauses requiring submission of PAGA claims to arbitration are not
preempted under the Federal Arbitration Act. The mixed result in Viking
River led to a mixed result in In-N-Out’s appeal in the Orange County action.
The Court of Appeal reversed the denial of In-N-Out’s motion to compel
arbitration of Piplack’s individual PAGA claim (sending that component of
his PAGA claim to arbitration), but affirmed with respect to his
representative PAGA claims on behalf of In-N-Out employees other than
himself (which presumably means Piplack is now actively pursuing a PAGA
case against In-N-Out in Orange County). (Piplack v. In-N-Out Burgers
(2023) 88 Cal.App.5th 1281, 1293, review granted June 14, 2023, S279546.)
37
permissive intervention for the limited purpose28 of giving Piplack and Taylor
a defined role in the case commensurate with the scope of their LWDA
authority, and staying the proceedings only as to certain issues that they may
be entitled to litigate in another forum.
For example, in the absence of formal coordination under the rules
governing coordination of complex cases, we see no reason why trial judges in
overlapping PAGA cases may not communicate amongst themselves to
determine whether, say, discovery might be coordinated in the interest of
judicial economy. In federal multidistrict litigation, that is common.29 And
whether a party seeking approval of a settlement has engaged in cooperative
discovery under such a coordinated discovery plan is sometimes a factor
courts take into account in the settlement approval process.30 In providing
guidance on remand, we mention coordinated discovery for illustrative
purposes to emphasize that we see the exclusive concurrent jurisdiction issue
as a discretionary one that may be resolved in any number of ways designed
to maximize efficiency, while at the same time allowing all PAGA claimants
28 Limited purpose interventions are permissible. (Carlsbad Police
Officers Association v. City of Carlsbad, supra, 49 Cal.App.5th at p. 151 [“a
trial court has inherent power to place reasonable conditions on
intervention.” (Italics in original.)].)
29 E.g., Phipps Group v. Downing (In re Genetically Modified Rice
Litigation) (8th Cir. 2014) 764 F.3d 864, 866; In re Air Crash Disaster at
Florida Everglades on December 29, 1972 (J.P.M.L. 1973) 360 F.Supp. 1394,
1395.
30 E.g., In re Yahoo! Inc. Customer Data Security Breach Litigation
(N.D. Cal., July 22, 2020, No. 16-MD-02752-LHK) 2020 WL 4212811, page
*13, affirmed (9th Cir., June 27, 2022, No. 20-16633) 2022 WL 2304236.
38
in overlapping case scenarios to participate in litigation in which they have
an interest but where the requisites for mandatory intervention have not
been satisfied.
IV. DISPOSITION
The order denying intervention is vacated and the cause is remanded
for further proceedings consistent with this opinion. Appellants Piplack and
Taylor shall recover their costs on appeal.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
39
Trial Court: Superior Court of California, County of Sonoma
Trial Judge: Hon. Jennifer V. Dollard
Counsel: Aiman-Smith & Marcy, Randall B. Aiman-Smith,
Reed W.L. Marcy, Hallie von Rock, Brent A. Robinson;
Lavi & Ebrahimian, Joseph Lavi, Jordan D. Bello,
Vincent G. Granberry; Law Offices of Sahag Majarian II
and Sahag Majarian II for Movants and Appellants.
Polk Kabat, Mark G. Humenik for Tracy Chen in her
Representative Proxy and Private Attorney General
Capacity on Behalf of the State of California as Amicus
Curiae on behalf of Movants and Appellants.
Lebe Law, Jonathan M. Lebe, Zachary T. Gershman,
Brielle D. Edborg for Plaintiff and Respondent.
Sheppard, Mullin, Richter & Hampton, Paul S. Cowie,
John D. Ellis, Sami Hasan, Amanda E. Beckwith for
Defendant and Respondent.
Accurso v. In-N-Out Burgers LWDA ex rel. Tom Piplack and Brianna Marie Taylor – A165320