Gonzalez v. Aluminum Precision Products CA2/6

Filed 6/20/22 Gonzalez v. Aluminum Precision Products CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
MAIKEL GONZALEZ, 2d Civil No. B313833
(Super. Ct. No. 56-2020-
Plaintiff and Respondent, 00546795-CU-OE-VTA)
(Ventura County)
v.
ALUMINUM PRECISION
PRODUCTS, INC.,
Defendant and Respondent;
JOHN MALDONADO, JR.,
Movant and Appellant.
Appellant John Maldonado, Jr., appeals from two orders
denying him leave to intervene in the Labor Code Private
Attorneys General Act of 2004 (PAGA) action filed by respondent
Maikel Gonzalez against respondent Aluminum Precision
Products, Inc. (APP). (Lab. Code,1 § 2698 et seq.) He contends he
1 Further unspecified references are to the Labor Code.
had a right to intervene in the Gonzalez action and the court
erred in approving Gonzalez’s settlement without his
participation in that action. We affirm.
FACTUAL AND PROCEDURAL HISTORY
APP employed Maldonado and Gonzalez. In July 2020,
Maldonado submitted a PAGA notice to the Labor and Workforce
Development Agency (LWDA) pursuant to section 2699.3. He
alleged three violations: (1) a WARN Act2 violation, (2) failure to
reimburse expenses arising from the use of personal vehicles, in
violation of section 2802, and (3) an Industrial Welfare
Commission wage order No. 1-2001 (Cal. Code Regs., tit. 8,
§ 11010, subd. 15) violation for excessive heat and work
conditions violations. In October 2020, Maldonado filed a
complaint in Orange County Superior Court alleging the same
three PAGA claims against APP.
In November 2020, Gonzalez submitted a PAGA notice to
LWDA (§ 2699.3) alleging seven violations, including failure to
(1) pay minimum, straight time, and overtime wages, (2) provide
meal periods, (3) permit rest periods, (4) maintain accurate
records of hours worked and meal periods taken or missed, (5)
reimburse and indemnify expenses that were used “to purchase
work-related items . . . which includes uniforms,” in violation of
section 2802, (6) pay all wages upon termination, and (7) provide
accurate itemized wage statements.
Also in November, Gonzalez filed a class action complaint
in Ventura County Superior Court, alleging the following
individual and class claims: (1) failure to pay minimum and
straight wages, (2) failure to pay overtime wages, (3) failure to
2The Worker Adjustment and Retraining Notification Act.
(§ 1400 et seq.)
2
provide meal periods, (4) failure to permit rest breaks, (5) failure
to indemnify business expenses, (6) failure to pay wages upon
termination, (7) failure to provide accurate itemized wage
statements, and (8) unfair business practices.
In March 2021, Gonzalez and APP stipulated to allow
Gonzalez to amend his complaint to add a ninth cause of action
for civil penalties pursuant to PAGA; and Gonzalez agreed to
dismiss his individual and class claims. The trial court approved
the stipulation and deemed the First Amended Complaint filed.
Maldonado’s Ex Parte Applications and Attempts to Intervene
In May, Maldonado filed an ex parte application to stay the
Gonzalez action pending a petition for coordination that he filed
in the Orange County Superior Court. The trial court denied the
application because he was not a party to the action and there
was no “irreparable harm, immediate danger, or any other
statutory basis for granting relief ex parte.”
Maldonado filed another ex parte application, seeking leave
to intervene in the Gonzalez action. The trial court denied the
application.
Six days later, Maldonado filed a regularly noticed motion
to intervene. In July, the trial court denied the motion, stating
that it had “already denied this motion on the merits, and moving
party is seeking the same relief based on the same documents.”
The court found that the “motion is an improper motion for
reconsideration which does not comply with Code of Civil
Procedure, section 1008.”
Settlement of the Gonzalez Action
Meanwhile, in April and in May, Gonzalez filed two
amended PAGA notices with LWDA and APP. In the amended
notices, Gonzalez added new claims previously raised in
3
Maldonado’s complaint, including the WARN Act violation and
excessive heat and work conditions.
Gonzalez and APP reached a settlement of the PAGA
action. The proposed settlement included the new claims raised
in the two amended PAGA notices. Gonzalez moved for approval
of the proposed settlement with the court and sent a copy to
LWDA.
LWDA sent a notice to Gonzalez and APP, informing them
that it was investigating the new claims in Gonzalez’s amended
PAGA notices and that the court could not approve the
settlement of any PAGA claims subject to investigation. LWDA
instructed Gonzalez and APP to limit their settlement to the
claims originally noticed in Gonzalez’s November 2020 PAGA
notice to LWDA. The parties amended the proposed settlement
to conform to these instructions. Gonzalez sent the amended
settlement agreement to LWDA.3
The trial court granted Gonzalez’s motion to approve the
PAGA settlement. The settlement identified “aggrieved
employees” as “all persons currently or formerly employed by
[APP] in California during the designated PAGA Period [July 28,
2019 through July 14, 2021 (date of settlement approval)].” It
was estimated that there were 700 aggrieved employees. Under
the settlement, APP agreed to pay a maximum of $300,000 for
the “PAGA Penalties” with at least $177,050.42 available for
3 Maldonado admitted that settlement of the claims
originally raised in the November 2020 PAGA notice would be
appropriate. At the May 27 ex parte hearing, Maldonado’s
counsel stated that: “[Maldonado is] happy for the $350,000 [that
Gonzalez] want[s] to take to apply to their claims to go back to
November, but only for the claims that they have authority to
settle.”
4
distribution to the aggrieved employees and the LWDA. In
exchange, APP “shall be entitled to a limited release from the
LWDA and each and every Aggrieved Employee, including
[Gonzalez].”
The court found “that the terms of the proposed settlement
are reasonable” and were “the product of informed, non-collusive
negotiations conducted at arms’ length by the Parties.” The court
considered APP’s “potential liability, the benefit to the State of
California, allocation of settlement proceeds among Aggrieved
Employees, and the fact that a settlement represents a
compromise of the Parties’ respective positions rather than the
result of a finding of liability at trial.” The court dismissed the
underlying action with prejudice and entered “judgment following
entry of order granting plaintiff’s motion for an order approving
settlement of claims.”4
DISCUSSION
Maldonado contends the trial court erred when it denied
him leave to intervene because (1) he had an interest in the
Gonzalez action sufficient for intervention, and (2) the trial court
abused its discretion in denying him leave to intervene. 5
4 We grant APP’s request for judicial notice with respect to
documents labeled Exhibit E-L. We deny the request regarding
all other documents attached to APP’s request and deny
Maldonado’s request for judicial notice in full because those
documents are either already in the appellate record or are
irrelevant to our resolution of the appeal.
5To the extent Maldonado raises contentions regarding the
May 25, 2021, order denying his request for a stay of the
Gonzalez action, an order denying a stay is not an appealable
order. (Brunzell Construction Co. v. Harrah’s Club (1967) 253
5
Right to Intervene
Code of Civil Procedure section 387 allows either
mandatory or permissive intervention. For both mandatory and
permissive intervention, the nonparty must show an interest that
is the subject of the action in which the nonparty seeks to
intervene. (Id., subd. (d)(1)(B) & (2).)
The parties dispute whether Maldonado had an interest in
the Gonzalez action sufficient for either mandatory or permissive
intervention. Our Supreme Court has granted review of our
colleagues’ opinion in Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th
955 (Turrieta), review granted Jan. 5, 2022, S271721, to
determine whether a PAGA representative has the right to
intervene, object to, or move to vacate, a judgment in a related
action that purports to settle the claims that the PAGA
representative has raised.
In Turrieta, supra, 69 Cal.App.5th at page 962, the
appellants and Turrieta filed separate PAGA actions alleging
overlapping claims relating to Lyft’s misclassification of its
drivers as independent contractors. When Turrieta reached a
settlement in her action, the appellants moved to intervene,
moved to vacate the judgment approving Turrieta’s settlement,
and later appealed the judgment. (Turrieta, at pp. 964-965, 967.)
Turrieta and Lyft moved to dismiss the appeal, contending the
appellants lacked standing. (Id. at p. 967.)
The Court of Appeal held that the appellants lacked
standing to challenge the Turrieta settlement. (Turrieta, supra,
69 Cal.App.5th at pp. 967-968.) The court reasoned that the
Cal.App.2d 764, 772, fn. 3.) Moreover, that order was not
specified in the notice of appeal. (Morton v. Wagner (2007) 156
Cal.App.4th 963, 967.)
6
appellants were not “aggrieved parties” pursuant to Code of Civil
Procedure section 902. A party is aggrieved “‘only if its “rights or
interests are injuriously affected by the judgment.”’ [Citation.]”
(Turrieta, at p. 971.) 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.” (Ibid.)
Similarly, the court 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.” (Id. at p. 977.)
Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 72-73
(Moniz), disagreed with Turrieta and held 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 and appeal the fairness of the settlement as part of his or
her role as an effective advocate for the state.” In so ruling,
Moniz recognized that an employee, deputized pursuant to PAGA
to prosecute their employer’s Labor Code violations on behalf of
the state, “represents interests that are sufficiently aggrieved to
satisfy Code of Civil Procedure section 902, a remedial statute to
be liberally construed in favor of the right to appeal.” (Moniz, at
p. 73.)
7
Similarly, in Uribe v. Crown Building Maintenance Co.
(2021) 70 Cal.App.5th 986, 999-1000 (Uribe), an intervenor
(Garibay) who opted out of a class settlement but also asserted a
PAGA claim had standing to appeal a settlement in another
action that resolved both class and PAGA claims. The court
concluded that Garibay had “standing to appeal because, having
intervened and yet unable to opt out of the parties’ settlement of
Uribe’s PAGA claim, Garibay’s PAGA cause of action in this same
lawsuit was resolved against her by the trial court’s entry of
judgment on its final approval of the settlement. She is therefore
a party ‘aggrieved’ by the judgment. As one court has explained,
the ‘prejudice’ giving rise to standing arises when ‘“the
settlement strips the party of a legal claim or cause of action.”’
[Citation.]” (Uribe, at p. 1001.)
We agree with our colleagues in Moniz and Uribe and
conclude that where two separate PAGA actions have
overlapping claims, the PAGA representative in one action has
an interest in the other action sufficient to intervene in that other
action. Allowing intervention under these circumstances
promotes fairness in the context of a PAGA settlement and
protects against collusive judgments and “reverse auctions.”6
Denial of the Intervention
Having concluded that Maldonado possessed an interest
sufficient for intervention, we must next determine if the court
erred in denying him leave to intervene.
6 A “‘reverse auction’” occurs when a “defendant settles
with the low bidder among two or more class representatives, to
the detriment of the class.” (Uribe, supra, 70 Cal.App.5th at p.
990, italics added.)
8
For mandatory intervention, the nonparty must have “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.” (Code of Civ.
Proc., § 387, subd. (d)(1)(B).) For permissive intervention, the
nonparty must satisfy the following factors: “(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.” (Reliance Ins. Co. v. Superior Court (2000) 84
Cal.App.4th 383, 386; Code of Civ. Proc., § 387, subd. (d)(2).)
Here, the trial court denied the ex parte application for
intervention without specifying its legal reasoning. Thus, we do
not know if the court determined that Maldonado, as a PAGA
representative, lacked a personal interest to intervene.
Nevertheless, error is harmless unless it resulted in a
miscarriage of justice. (Kyne v. Eustice (1963) 215 Cal.App.2d
627, 635.) Error is prejudicial and results in a miscarriage of
justice if the reviewing court concludes that it is reasonably
probable that a result more favorable to the appellant would have
been reached absent the error. (Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800.)
Maldonado was not prejudiced by denial of leave to
intervene (either mandatory or permissive) because his interests
were “adequately represented by” Gonzalez. (Code of Civ. Proc.,
§ 387, subd. (d)(1)(B); see Coalition for Fair Rent v. Abdelnour
(1980) 107 Cal.App.3d 97, 116 [no prejudice resulting from a
9
denial of permissive intervention where party’s position was fully
litigated by another party]).)
Here, at the time of the settlement, there was only one
overlapping PAGA claim remaining between the Maldonado and
Gonzalez actions—reimbursement of personal vehicle expenses.
Specifically, Maldonado’s PAGA notice and complaint alleged
that APP required aggrieved employees “to use their personal
vehicles for work related activities,” in violation of section 2802.
Gonzalez’s PAGA notice, complaint, and settlement covered a
broader violation of section 2802 by alleging that aggrieved
employees were required to “purchase work-related items without
reimbursement.” The Gonzalez action thus encompassed
Maldonado’s expense claim. And, in evaluating the Gonzalez
settlement, the trial court concluded that the settlement was
“reasonable” and was a “product of informed, non-collusive
negotiations conducted at arms’ length by the Parties.”
Maldonado does not show otherwise; there is no analysis on how
the settlement amount relating to personal vehicle expense is
inadequate. The record thus reflects that Gonzalez adequately
represented Maldonado’s interest in the one limited claim
asserted by both.
Maldonado argues that Gonzalez did not have the authority
to represent his interests and did not meet the 65-day waiting
period (§ 2699.3) to litigate those claims. But these arguments
pertain only to the PAGA claims that Gonzalez added in his
amended PAGA notice and initially attempted to settle. These
claims were ultimately omitted from the amended settlement
terms after LWDA informed Gonzalez of its ongoing investigation
and instructed the parties to omit them. Therefore, to the extent
10
there was any issue regarding a failure to comply with the 65-day
waiting period, Gonzalez and APP remedied those issues.
Maldonado contends that even after the amendment of the
settlement, “Gonzalez . . . lacked authority to expand the scope of
the settlement to all expense reimbursement claims.” He is
wrong. There was no improper expansion of the scope of the
settlement. Pursuant to section 2699.3, Gonzalez properly
noticed LWDA in his November 2020 letter of his claim for
expenses that were used “to purchase work-related items without
reimbursement, which includes uniforms,” but was not limited to
uniforms. (See Gunther v. Alaska Airlines, Inc. (2021) 72
Cal.App.5th 334, 350-351 [plaintiffs are not required to set forth
every potential fact or every future theory and are only required
to state sufficient information that will put the employer and
LWDA on notice]; see also Brown v. Ralphs Grocery Co. (2018) 28
Cal.App.5th 824, 838 [a notice identifying one specific wage
violation but stated that “[t]he violations include, without
limitation” that specific violation was sufficient to exhaust
remedies for a broader wage claim].)
Maldonado contends that Gonzalez lacked the authority to
“expand[] the period of release to July 28, 2019.” Maldonado
argues that Gonzalez cannot release claims beyond the one-year
limitations period prior to the date of his PAGA notice, which was
filed in November 2020. (Code of Civ. Proc., § 340, subd. (a)
[statute of limitations for a PAGA claim is one year].) This
argument lacks merit. The statute of limitations is an
affirmative defense that can be waived by the defendant in a
settlement agreement. (See Amaro v. Anaheim Arena
Management, LLC (2021) 69 Cal.App.5th 521, 543.)
11
Maldonado therefore does not show how his interests were
not adequately represented by Gonzalez or how he was
prejudiced by the denial of leave to intervene.
July 14 Order
With respect to the July 14 order denying Maldonado leave
to intervene, Gonzalez contends that the underlying motion was
actually a motion to reconsider the ruling on the earlier ex parte
application. Gonzalez argues the trial court properly denied it
pursuant to Code of Civil Procedure section 1008, and that the
order denying the motion is not appealable. We agree.
“A party who originally made an application for an order
which was refused in whole or part, or granted conditionally or on
terms, may make a subsequent application for the same order
upon new or different facts, circumstances, or law, in which case
it shall be shown by affidavit what application was made before,
when and to what judge, what order or decisions were made, and
what new or different facts, circumstances, or law are claimed to
be shown.” (Code Civ. Proc., § 1008, subd. (b).) Regardless of a
motion’s title, if the motion raises the same issues as an earlier
motion that was previously denied, it is properly deemed a
renewal of the earlier motion pursuant to Code of Civil Procedure
section 1008, subdivision (b). (Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1577.)
Here, Maldonado filed the motion to intervene six days
after the trial court denied his ex parte application seeking the
same relief. Maldonado raised the same arguments and
requested the same relief. His motion was therefore an
“application for the same order.” (Code of Civ. Proc., § 1008,
subd. (b).)
12
An order denying a renewed motion or motion for
reconsideration pursuant to Code of Civil Procedure section 1008
is not an appealable order. (Tate v. Wilburn (2010) 184
Cal.App.4th 150, 159-160.) We therefore lack jurisdiction to
consider an appeal of the July 14, 2021, order. (Woodman v.
Ackerman (1967) 249 Cal.App.2d 644, 646.)
DISPOSITION
The May 27 and July 14, 2021, orders (denying leave to
intervene) are affirmed. Respondents shall recover costs on
appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
13
Jeffrey G. Bennett, Judge
Superior Court County of Ventura
______________________________
Law Offices of Sima Farde and Sima Farde for Movant and
Appellant.
Moon & Yang, H. Scott Leviant, Kane Moon and Lilit
Tunyan for Plaintiff and Respondent.
Sheppard, Mullin, Richter & Hampton, Ronda D.
Jamgotchian, Paul Berkowitz and Michaela R. Goldstein for
Defendant and Respondent.