Pham v. Seven Points Management CA2/5 ( 2024 )

Filed 1/9/24 Pham v. Seven Points Management CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
TIEN PHAM et al., B327127
Plaintiffs and Respondents, (Los Angeles
County Super.
v. Ct. No.
20STCV31808)
SEVEN POINTS MANAGEMENT et al.,
Defendants and Respondents;
KEITH DAVIS,
Movant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Mara Law Firm, David Mara, Jill Vecchi, and Taylor
Getman for Movant and Appellant.
Akerman, Damien P. DeLaney and Brian M. Noh for
Defendants and Respondents.
Workplace Rights Law Group, Adam N. Bouayad and
Gregory D. Wolflick for Plaintiffs and Respondents.
Appellant Keith Davis appeals from an order denying his
motion to file a complaint in intervention in the action
Respondent Tien Pham (Pham) filed, asserting, among other
causes of action, PAGA and representative class action claims
based on alleged Labor Code violations committed by their former
employer, Respondents Walnut LLC, 3088 Walnut LLC, Seven
Points Management, and/or Cameron Damwijk (collectively
“Walnut”). Davis complains that the trial court should have
permitted him to intervene because his complaint would not
enlarge the issues in the underlying action and because he was
uniquely situated to protect the unnamed class members and
assist the court in evaluating a proposed settlement reached
between Walnut and the Pham plaintiffs. As we explain, the
trial did not abuse its discretion in denying Davis’s request to
intervene because the record supports the trial court’s
determination that Davis’s complaint would enlarge the scope of
the underlying action. Thus, the trial court properly denied the
motion for leave to file a complaint in intervention, and we
affirm.
FACTS AND PROCEDURAL BACKGROUND
In mid-June 2020, Respondent Pham notified the Labor
and Workforce Development Agency (LWDA) of alleged violations
of the Private Attorneys General Act of 2004 (PAGA) committed
by his former employer, Walnut. After that, in mid-August 2020,
Pham, whom Walnut classified as an “independent contractor,”
filed an action, asserting claims under PAGA for various Labor
Code violations against Walnut. (Pham Action) Pham alleged
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causes of action for (1) Labor Code1 section 2698 (PAGA) civil
penalties for the violations of the Labor Code; (2)
misclassification as an independent contractor in violation of
section 226.8; (3) failure to pay overtime; (4) meal period
violations; (5) rest break violations; (6) failure to provide written
notice of certain employment conditions in violation of section
2810.5; (7) wage statement and record-keeping violations; and (8)
failure to timely pay wages upon termination.
Nearly a month later, on September 10, 2020, another
former Walnut employee, appellant Keith Davis, filed a separate
lawsuit against Walnut asserting class and PAGA claims,
alleging (1) failure to pay all straight-time wages; (2) failure to
pay all overtime wages; (3) failure to provide meal periods; (4)
failure to authorize and permit rest periods; (5) failure to adopt a
compliant sick pay/paid time off policy; (6) knowing and
intentional failure to comply with itemized employee wage
statement provisions; (7) failure to reimburse/illegal deductions;
(8) violations of the Private Attorneys General Act of 2004; (9)
violation of Unfair Competition Law; and (10) waiting time
penalties.2 (the Davis Action) Davis filed his action on behalf of
himself and all hourly, non-exempt trimmers, post-harvesters,
cultivators, and/or other workers with similar job designations
1 All references to statute are to the Labor Code unless
otherwise indicated.
2 The Pham and Davis have never been related.
3
and titles who were presently or formerly employed by Walnut in
California from September 10, 2016, until September 2020.3
Over the next several years, the parties in both actions
engaged in discovery, including Requests for Admission, Special
Interrogatories, Form Interrogatories, and Requests for
Production. In April of 2021, during an informal discovery
conference, the parties in Pham’s Action litigated whether
Pham’s PAGA letter to the LWDA encompassed claims for unpaid
straight time and overtime wages, meal and rest breaks, and
other related claims asserted by Walnut’s hourly, non-exempt W-
2 employees. After the conference, the trial court found Pham’s
notice to the LWDA was broad enough to seek penalties as all of
Walnut’s hourly, non-exempt W-2 employees and its allegedly
misclassified independent contractors. The court also ruled that
Pham was entitled to discovery as to all those workers.
According to respondents, Walnut produced essentially the
same time and pay data to Pham that Walnut had previously
produced to Davis, except that the production in the Pham Action
was updated with new payroll data. Pham’s counsel also
requested, and Walnut provided, a sample of contact information
so they could speak with other putative class members. (Id.) By
April 2022, Walnut had produced over 440 pages of document
production to Pham. Pham’s counsel also interviewed other W-2
employees, including Chasity Bennett, who worked at Walnut for
nearly three years (from October 2019 through November 2021).
In September 2021, the parties in the Davis Action
participated in a mediation that ended unsuccessfully without an
opening demand from Davis’s counsel. Davis then sought
3 On June 26, 2020, prior to filing the Davis Action, Davis
provided notice of Walnut LLC’s PAGA violations to the LWDA.
4
additional discovery, primarily a person most knowledgeable
deposition from Walnut and the deposition of a Walnut manager
who oversaw non-exempt hourly employees.4
In the spring of 2022, Walnut sought to negotiate a
settlement in the Pham Action that could resolve the claims in
both cases. Walnut and Pham attended a private mediation with
a retired Los Angeles Superior Court Judge. As a result of the
mediation, Pham and Walnut filed a stipulation to allow Pham to
file a First Amended Complaint, adding claims for hourly
employees and class claims. The amended complaint identified
two subclasses: (1) an “Employee Class” encompassing all non-
exempt, hourly, W-2 employees, and naming Chasity Bennett as
the class representative for W-2 employees; and (2) all employees,
like Pham, allegedly misclassified as independent contractors. It
also included the following “Employee Class” definition, in
relevant part, “[a]ll non-exempt hourly employees employed in
California by Defendants from August 19, 2017, to the present[.]”
The FAC included the following causes of action: (1) failure to
pay straight time/minimum wages; (2) failure to pay all overtime
wages; (3) failure to provide compliant meal periods; (4) failure to
provide compliant rest breaks; (5) failure to provide sick
pay/leave; (6) failure to provide itemized employee wage
statements; (7) failure to reimburse/illegal deductions; (8) waiting
time penalties; (9) violation of California’s Unfair Competition
Law; and (10) a claim for Civil Penalties for Violations of
California Labor Code, pursuant to PAGA, § 2698, et seq. (the
“Pham FAC Action”),
4 The record does not disclose what evidence was discovered
in the deposition.
5
On October 6, 2022, Pham and Bennett filed a Motion for
Preliminary Approval of Class Action/PAGA Settlement. Before
the hearing on the motion for preliminary approval, Davis filed a
Motion and a Notice of Objection to the Proposed Class and
PAGA Settlement and a Motion for Leave to File Complaint in
Intervention.
In the Notice of Objection to the proposed settlement, Davis
argued that the proposed class action settlement was unfair,
unreasonable, and inadequate. Davis complained that the
proposed settlement in the Pham FAC Action, which would also
settle the same claims as alleged in Davis, represented a “reverse
auction”5 done in secret and without the benefit of the discovery
conducted in the Davis Action. Davis also argued that the
proposed settlement “is for an amount no one . . . could
independently assess as fair, reasonable, and adequate . . .
because the Court has been provided with no data that would
provide it with any means to assess either the reasonableness of
the settlement amount or its relation to the amounts in
controversy.” He further objected that the LWDA did not receive
notice of the Pham’s PAGA claims included in the proposed
settlement and that the Notice of Pendency of Class Action and
Proposed Settlement sent to class members was inadequate. The
objection also asserted that the proposed settlement failed to
conform with the Los Angeles Superior Court, Complex Civil
5 A “reverse auction” is found when “the defendant in a
series of actions picks the [weakest plaintiff] to negotiate a
settlement with the hope that the [trial court] will approve a
weak settlement that will preclude other claims against the
defendant.” (Duran v. Obesity Research Institute, LLC (2016) 1
Cal.App.5th 635, 643, fn. 4.)
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Department Checklist for Preliminary Approval of Class Action
Settlement. And finally, Davis questioned whether Chasity
Bennett was an adequate representative for hourly, non-exempt
employees who worked in other positions such as in the positions
of trimmer, post-harvester, or cultivator.
In the motion for Leave to File a Complaint in Intervention,
Davis re-asserted his objections to the proposed settlement. Also,
he argued that the court should allow him to intervene in the
Pham FAC Action because he satisfied the requirements for
permissive intervention. He argued that intervention was
warranted to protect the interest of the putative class members
in the Davis’ PAGA and class action, which would be affected by
the settlement in the Pham FAC Action. He pointed out that
Pham’s class claims were added to the First Amended Complaint
after the mediated settlement was reached in Pham. Thus, the
proposed settlement should be scrutinized to ensure that the
class claims have been sufficiently investigated. Davis stated
that he sought intervention for the “limited purpose to conduct
discovery regarding the parties proposed settlement and [to
provide] information that may assist the court in assessing the
settlement.” He argued that because of the discovery he had
conducted on the class issues, he was uniquely positioned to
provide the court with information to assist the court. Davis also
maintained that allowing him to intervene would not enlarge the
issues in Pham’s litigation because he was not seeking to add
new claims or parties but instead seeking only to address the
pending motion to approve the proposed settlement. He further
argued that the benefits of the intervention—to assist the court
in evaluating the settlement and protect absent class members—
outweighed any possible objection to intervention.
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Pham and Walnut jointly opposed the motion to intervene.
They argued that Davis’s intervention would not add anything to
the case and that their interests and objections outweighed his
interest in inserting himself. They pointed out that the parties in
the Pham FAC Action had conducted as much discovery as had
been done in the Davis Action. They argued that Walnut had
produced the same payroll data in the Pham FAC Action as in
the Davis Action, and the discovery in the Pham FAC Action was
more up-to-date. They also pointed out that the class discovery
in the Pham FAC Action commenced before the successful
mediation in the Pham FAC Action. Pham and Walnut
complained that Davis was trying to hinder and undo the work
they had completed before, during, and after the mediation.
They further argued that Davis’ intervention in the Pham FAC
Action was unnecessary because the court could protect the
interests of the unnamed class members without Davis’
involvement. In addition, Pham and Walnut pointed out that
intervention was unnecessary because Davis’s concerns and
complaints about the proposed settlement could be presented
through his objection to the settlement.
In November 2022, after a hearing on the motions for leave
to intervene and preliminary approval of the class action/PAGA
settlement,6 the trial court denied the motion to file a complaint
6 Although the minute order from the hearing indicates
that the court heard oral argument on the motions, it does not
appear the hearing was transcribed nor does the record contain a
settled statement describing the hearing.
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in intervention.7 The court found that the proposed intervention
would “enlarge the issues in this litigation for the simple reason
that Davis seeks to introduce another class action of his own into
this action.” The court also observed: [b]ecause proposed
Intervenor Davis is a member of the class proposed in the Pham
First Amended Complaint, he has standing to object to the
proposed class settlement.” This appeal followed.
DISCUSSION
A. Governing Statute and Standard of Appellate Review
Code of Civil Procedure section 387, subdivision (a), states,
in relevant part: “Upon timely application, 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.” (Code Civ. Proc., § 387, subd. (a).) Under
Code of Civil Procedure section 387, subdivision (a), the trial
court has discretion to permit a nonparty to intervene where the
following factors are met: (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
7 The trial court also denied Pham’s motion for preliminary
approval of the class action/PAGA settlement without prejudice
and scheduled a hearing for a renewed motion for a preliminary
hearing for January of 2023. The court also gave Pham an
opportunity to file a renewed motion for preliminary approval of
the settlement and Davis another opportunity to file an objection
to the proposed settlement.
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opposition by the parties presently in the action. (South Coast
Air Quality Management Dist. v. City of Los Angeles (2021) 71
Cal.App.5th 314, 319 (South Coast), review denied (Feb. 16,
2022); accord, City & County of San Francisco v. State of
California (2005) 128 Cal.App.4th 1030, 1036 (San Francisco);
Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383,
386.) The permissive intervention statute balances the interests
of others affected by the judgment against the interests of the
original parties in pursuing their litigation unburdened by
others. (San Francisco, supra, 128 Cal.App.4th at p. 1036); South
Coast, supra, 71 Cal.App.5th at p. 320, see also Marken v. Santa
Monica-Malibu Unified School Dist. (2012) 202 Cal.App.4th 1250,
1270, fn. 17 [whether to permit intervention requires a fact-
specific inquiry focused on practical considerations].) The trial
court has broad discretion to strike this balance. (San Francisco,
supra, 128 Cal.App.4th at p. 1036 [“Because the decision whether
to allow intervention is best determined based on the particular
facts in each case, it is generally left to the sound discretion of the
trial court”].)
This court reviews the trial court’s decision on whether to
grant a request to intervene for abuse of discretion. (Edwards v.
Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725,
736.) We presume the judgment is correct, affirm if it is correct
on any theory, and reverse only if the appellant establishes the
decision results in a miscarriage of justice or exceeds the bounds
of reason. (Ibid.; San Francisco, supra, 128 Cal.App.4th at
pp. 1036–1037; City of Malibu v. California Coastal Com. (2005)
128 Cal.App.4th 897, 906 (Malibu); South Coast, supra, 71
Cal.App.5th at p. 321.) “ ‘ “The burden is on the party
complaining to establish an abuse of discretion, and unless a
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clear case of abuse is shown and unless there has been a
miscarriage of justice, a reviewing court will not substitute its
opinion and thereby divest the trial court of its discretionary
power.” [Citations.]’ [Citation.]” (San Francisco, supra, 128
Cal.App.4th at pp. 1036–1037.)
An appellant bears the burden of overcoming the
presumption that a ruling is correct by affirmatively showing
error on an adequate record. (Ketchum v. Moses (2001) 24
Cal.4th 1122, 1140–1141.) Under California Rules of Court, rule
8.120(b), “[i]f an appellant intends to raise any issue that
requires consideration of the oral proceedings in the superior
court, the record on appeal must include a record of these oral
proceedings in the form of one of the following: [¶] (1) A
reporter’s transcript under rule 8.130; [¶] (2) An agreed
statement under rule 8.134; or [¶] (3) A settled statement under
rule 8.137.” When there is an inadequate record, we must
presume any matters that could have been presented to support
the trial court’s order were in fact presented, and may affirm the
trial court’s determination on that basis. (Bennett v.
McCall (1993) 19 Cal.App.4th 122, 127 (Bennet).) An appellant’s
failure to present an adequate record will result in the issue
being resolved against appellant. (Maria P. v. Riles (1987) 43
Cal.3d 1281, 1295–1296 (Maria P.)
“[I]n the absence of a required reporter’s transcript and
other [relevant] documents, we presume the judgment is correct.”
(Stasz v. Eisenberg (2010) 190 Cal.App.4th 1032, 1039 (Stasz).)
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B. Analysis
Davis contends the trial court abused its discretion by
denying permissive intervention. We disagree.
First, Davis fails to present this court with an adequate
record to overcome the presumption that the trial court’s
discretionary ruling denying the motion to intervene was correct.
At the hearing on Davis’s motion, the court gave an oral tentative
ruling and heard argument from the parties: that hearing was
not transcribed, nor has Davis presented a suitable substitute to
a reporter’s transcript. Accordingly, we do not know, for example,
whether Davis made statements or concessions that support the
trial court’s ruling.
Even assuming the adequacy of the record provided, Davis
fails to show an abuse of discretion. In addressing Davis’s
motion, the trial court denied the motion based on one of the
Code of Civil Procedure section 387, subdivision (a) factors — it
found Davis’s proposed intervention would “enlarge the issues in
this litigation” because Davis “seeks to introduce another class
action of his own into this action.” Contrary to Davis’s contention
in his briefing on appeal that his case is entirely duplicative of
the claims and classes in the Pham Action and thus does not
enlarge the issues in the action, the record supports the trial
court’s finding. A comparison of allegations in the Pham FAC
and Davis complaints reveals an important difference between
the actions in the description of the respective class claims and
violations. Specifically, Davis’s complaint alleges Labor Code
violations for class members who worked for Walnut commencing
in September 2016. In contrast, Pham’s FAC class action class
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definition only includes violations for those hired after August
2017. Thus, on the face of the pleadings, Davis’s Action includes
a class with alleged violations excluded from Pham’s FAC Action.
Permissive intervention may be denied, whereas here, it would
“ ‘ . . . “enlarge the scope of the action” or “broaden the
issues” . . . to litigate matters not raised by the original parties.
[Citation.]’ ” (Royal Indemnity Co. v. United Enterprises, Inc.
(2008) 162 Cal.App.4th 194, 204; see also Sanders v. Pacific Gas
& Elec. Co. (1975) 53 Cal.App.3d 661, 669 [intervention generally
not allowed where it will require further evidence].) Permitting
Davis to intervene would add to an already expansive action with
multiple plaintiffs, defendants, and significant burdens on the
trial court. (South Coast, supra, 71 Cal.App.5th at p. 319 [proper
to deny intervention where “[s]eating at th[e] table already [is]
crowded.”] see Siena Court Homeowners Assn. v. Green Valley
Corp. (2008) 164 Cal.App.4th 1416, 1429–1430 [court properly
denied a request to intervene where intervention would have
expanded issues by bringing in claims of third parties].) Davis
conceded his action sought to expand the time period during oral
argument in this court.
Therefore, on this record, the trial court did not err in
finding that Davis’s motion to intervene would enlarge the issues
in the Pham FAC Action. We cannot say the trial court abused
its discretion in denying Davis’ request for permissive
intervention. (See Tire Distributors, Inc. v. Cobrae (2005) 132
Cal.App.4th 538, 544 [even under the abuse of discretion
standard “there is still a substantial evidence component,” under
which the appellate court “defer[s] to the trial court’s factual
findings so long as they are supported by substantial evidence,
13
and determine[s] whether, under those facts, the court abused its
discretion”].)
DISPOSITION
The order is affirmed. Respondents are awarded costs on
appeal.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
BAKER, Acting P. J.
LEE, J.*
* Judge of the Superior Court of San Bernardino County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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