Judge: Elaine Lu, Case: 21STCV33017, Date: 2024-08-20 Tentative Ruling

Case Number: 21STCV33017    Hearing Date: August 20, 2024    Dept: 9

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 9

Background

            This is a wage and hour class action. Defendant Owens-Brockway Glass Container, Inc. (“Defendant”) manufactures and sells glass containers.  On September 8, 2021, Plaintiffs Pricilla Aguilar, Julian Haro, Juan Madera, and Richard Nunez (collectively “Plaintiffs”) filed a putative wage-and-hour class action lawsuit against Defendant (the “Class Complaint”).

The Class Complaint asserts causes of action for: (1) failure to pay minimum wages; (2) failure to pay overtime; (3) failure to provide meal periods; (4) failure to authorize and permit rest breaks; (5) failure to timely pay wages owed upon separation from employment; (6) failure to furnish accurate itemized wage statements; (7) violation of the unfair competition law; and (8) failure to reimburse necessary expenses.

On November 15, 2021, Plaintiffs filed a separate Private Attorneys General Act of 2004, Labor Code § 2698, et seq. (“PAGA”) representative action lawsuit against Defendant (the “PAGA Complaint”).  On March 1, 2023, the parties filed a notice of settlement and joint stipulation to file a first amended complaint consolidating the Class Complaint and the PAGA Complaint. 

On December 6, 2021, Defendant filed a Notice of Removal to the Central District of California pursuant to 28 U.S.C. §§ 1441, 1446, and 1453, asserting jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d).

Pursuant to the parties’ stipulation, on April 12, 2023, the parties filed a First Amended Complaint consolidating the Class Complaint and the PAGA Complaint (together the “Aguilar Action”).  No party has ever filed a notice of related cases seeking to relate the Lemus Action (20STCV44110) with the instant action (21STCV33017).

On December 14, 2023, the Court – presided by the Honorable Yvette M. Palazuelos – granted Plaintiffs’ and Defendant’s (jointly the “Parties”) motion for preliminary approval of the settlement agreement.  (Order 12/14/23.)  On June 18, 2024, the Parties filed a motion for final approval of the settlement agreement.  The hearing on the Parties’ motion for final approval of the settlement agreement is scheduled for September 12, 2024.

On July 8, 2024, non-party Lucio Lemus, Jr. (“Lemus Jr.”) filed the instant motion for leave to intervene.  On July 30, 2024, the Parties filed an opposition.  On August 6, 2024, the Parties filed a notice of supplemental authority.  On August 7, 2024, non-party Lemus Jr. filed a reply.  On August 14, 2024, non-party Lemus Jr. filed a notice of errata and a declaration of Mikael H. Stahle.

Legal Standard

         Intervention occurs when a nonparty becomes a party to an action by:

            (1) Joining a plaintiff in claiming what is sought by the complaint.

(2) Uniting with a defendant in resisting the claims of a plaintiff.

(3) Demanding anything adverse to both a plaintiff and a defendant.

(CCP § 387(b).)

            “A nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests.”  (CCP § 387(c).)  If the nonparty fails to attach to its motion a copy of the proposed complaint or answer in intervention, a court may properly deny the motion to intervene.  (Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 513.)

            Intervention is either mandatory or permissive.  Under the mandatory intervention provision: “[t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either … (A) [a] provision of law confers an unconditional right to intervene [or]

(B) [t]he 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.”  (CCP § 387(d)(1).)

            Under permissive intervention provision, “[t]he 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.”  (CCP § 387(d)(2).)  “[T]he 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 opposition by the parties presently in the action.”  (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.)

Code of Civil Procedure § 387 was modeled after and is “virtually identical” to Federal Rule of Civil Procedure 24.  Accordingly, California courts may consult federal court decisions where there is no controlling California authority directly on point.  (Ziani Homeowners Assn. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 280–281.)

Request for Judicial Notice

In conjunction with the moving papers, non-party Lemus Jr. requests that the Court take judicial notice of the following:

1.     The complaint in Lemus v. Owens-Brockway Glass Container, Inc., Los Angeles County Superior Court Case No. 20STCV44110 (“Lemus Action”), dated November 13, 2020

2.     Defendant’s Notice of Removal of the Lemus Action to the United States District Court, Central District of California, Case No. 2:21-cv-00146-FLA-AFM, dated January 7, 2021

3.     The United States District Court for the Central District of California’s order granting Lemus’s motion for substitution of party into the Lemus Action dated June 21, 2022.

4.     The United States District Court for the Central District of California’s order remanding the action to state court dated November 13, 2023.

5.     The Declaration of James R. Hawkins in Support of Plaintiffs’ Motion for Preliminary Approval of Class and PAGA Action Settlement filed on April 28, 2023 in the instant Aguilar Action.

6.     The Settlement Agreement in the Aguilar Action.

7.     This Court’s August 21, 2023 Order continuing the motion for preliminary approval of the settlement agreement in the instant Aguilar Action.

8.     The Supplemental Declaration of James R. Hawkins in Support of Plaintiffs’ Motion for Preliminary Approval of Class and PAGA Action Settlement, filed on November 7, 2023 in the instant Aguilar Action.

9.     This Court’s December 14, 2023 Order granting the motion for preliminary approval of the settlement agreement in the instant Aguilar Action.

As the Court may take judicial notice of court records and actions of the State, (See Evid. Code, § 452(c)(d)), non-party Lemus Jr.’s unopposed request for judicial notice is GRANTED.  However, the Court does not take judicial notice of the truth of assertions within the court records. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

Discussion

            Non-party Lemus Jr. seeks to intervene in the instant Aguilar Action to enjoin the final approval of the Amended Settlement Agreement or alternatively to request that the Court order that the April 6, 2020 to September 11, 2020 portion of the PAGA period – as defined in the Amended Settlement Agreement – be stricken.  (Supp. Stahle Decl. ¶ 2, Exh. L [Proposed First Amended Complaint in Intervention at Prayer for Relief ¶ 1].) 

            On November 13, 2020, Lucio Lemus (Sr.) filed the Lemus Action (20STCV44110) against Defendant asserting class wage and hour claims for (1) failure to provide meal periods, (2) failure to provide rest breaks, (3) failure to pay overtime wages, (4) failure to pay minimum wages, (5) failure to pay all wages due at separation, (6) failure to maintain required records, (7) failure to furnish accurate, itemized wage statements, (8) failure to indemnify employees for necessary expenses, and (9) unfair business practices.[1]  (Stahle Decl. ¶ 3, Exh. A [Lemus Action Complaint].)  Lucio Lemus (Sr.) also asserted a claim for civil penalties under PAGA in the Lemus Action against Defendant.  (Stahle Decl. ¶ 3, Exh. A.)  In relevant part, the claimed PAGA period in the Lemus Action began on September 9, 2019.  (Stahle Decl. ¶ 4.)  On June 21, 2022, non-party Lemus Jr. – i.e., Lucio Lemus Jr. – was substituted as the plaintiff in the Lemus Action due to the death of Lemus’s father, Lucio Lemus (Sr.)  (Stahle Decl. ¶ 6, Exh. D.)

            While the Lemus Action was pending, the instant Aguilar Action was filed – including the Class Complaint and the PAGA Complaint – and the parties reached a settlement.  (Stahle Decl. ¶¶ 8-12.)  No party has ever filed a notice of related cases seeking to relate the Lemus Action with the Aguilar Action.  On April 28, 2023, the Parties filed a motion for preliminary approval of the Settlement Agreement.  (Stahle Decl. ¶ 11-12, Exh. G [Settlement Agreement].)  On August 21, 2023, the Court – presided by Judge Palazuelos – continued the motion for preliminary approval of the Settlement Agreement for the Parties to submit additional briefing.  (Order 8/21/23; Stahle Decl. ¶ 13.)  On November 7, 2023, the Parties submitted the requested supplemental briefing including an Amended Settlement Agreement.  (Stahle Decl. ¶ 14, Exh. I [Supplemental Evidence in Support of Motion for Preliminary Approval of the Settlement including an Amended Settlement Agreement].)  On December 14, 2023, the Court – presided by Judge Palazuelos – granted the motion for preliminary approval of settlement.  (Order 12/14/23; Stahle Decl. ¶ 15, Exh. J.)

            The Parties subsequently filed a motion for final approval of the settlement.  (Stahle Decl. ¶ 16.)  At some unspecified point, non-party Lemus Jr.’s Counsel reviewed the Parties’ motion for final approval of the settlement, and “it became clear that Plaintiffs were seeking final approval of the Amended Settlement Agreement—even though they had already locked in through arm’s length negotiations in April of 2023 a PAGA release period of September 11, 2020 to April 30, 2023, but instead chose, in November of 2023, to dilute their already inked settlement by gratuitously extending the PAGA release period by more than five months (back to April 6, 2020) without receiving any new consideration from Defendant or being ordered to do so by the Court.”  (Stahle Decl. ¶ 17.)  Thus, Non-party Lemus Jr. claims that mandatory or permissive intervention is necessary because the PAGA claim in the Aguilar Action overlaps with the PAGA claim in the Lemus Action.

There is No Basis for Non-Party Lemus Jr. to Intervene

Recent California Supreme Court authority clarifies that this Court should deny the instant motion to intervene.  Turrieta v. Lyft, Inc. (Cal., Aug. 1, 2024, No. S271721) 2024 WL 3611975, “involve[d] what has become a common scenario in PAGA litigation: multiple persons claiming to be an ‘aggrieved employee’ within the meaning of PAGA file separate and independent lawsuits seeking recovery of civil penalties from the same employer for the same alleged Labor Code violations. Tina Turrieta, Brandon Olson, and Million Seifu each worked as a driver for Lyft, Inc. (Lyft) and each filed a separate action seeking civil penalties under PAGA for Lyft's alleged failure to pay minimum wages, overtime premiums, and business expense reimbursements. In early December 2019, Turrieta and Lyft signed an agreement settling Turrieta's action and scheduled a settlement approval hearing for January 2, 2020.”  (Id. at *1.)  In relevant part, Olson and Seifu each filed motions to intervene and vacate the eventual judgment.  The trial court denied Olson’s and Seifu’s motions to intervene and to vacate the judgment.  (Ibid.)   The Court of Appeal affirmed.  (Ibid.)  The Supreme Court granted Olson’s writ of certiorari and affirmed.  (Ibid.)  The Supreme Court explained that “to intervene in the ongoing PAGA action of another plaintiff asserting overlapping claims, to require a court to consider objections to a proposed settlement in that overlapping action, and to move to vacate the judgment in that action — would be inconsistent with the scheme the Legislature enacted.”  (Ibid.)  The Supreme Court further noted that Olson “cannot establish a cognizable interest to support intervention under Code of Civil Procedure section 387 based on his asserted authority, as the state's proxy or agent, to assert any state right to intervene.”  (Id. at *18.) 

            Applying Turrieta to the instant action, the Court finds that non-party Lemus Jr. does not have a cognizable interest to support intervention under Code of Civil Procedure section 387 based on his asserted authority as the state's proxy or agent to assert any state right to intervene.

In reply, non-party Lemus Jr. contends only that the Supreme Court’s ruling in Turrieta does not foreclose intervention “for the simple reason that the interest Intervenor is seeking to protect by intervention in the Aguilar Action is his father’s personal interest in his own, individual, PAGA claim. (See Turrieta, supra, at *6, fn. 6 [‘[W]e express no opinion on whether a PAGA plaintiff has a personal interest that may satisfy the “interest” requirement for intervention under section 387.’)”  (Reply at pp.5:28-6:4.)  This claim is without merit for two main reasons.

            First, there is no personal interest in a PAGA claim.  “A PAGA claim is legally and conceptually different from an employee's own suit for damages and statutory penalties. An employee suing under PAGA ‘does so as the proxy or agent of the state's labor law enforcement agencies.’”  (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.)  Thus, “[e]very PAGA claim is ‘a dispute between an employer and the state.’”  (Ibid.)  “Relief under PAGA is designed primarily to benefit the general public, not the party bringing the action.”  (Ibid.)  Nor is there an assignable interest in a PAGA claim.  (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003 [“under the Labor Code Private Attorneys General Act of 2004 an aggrieved employee cannot assign a claim for statutory penalties because the employee does not own an assignable interest.”].)  “Consequently, [an individual’s] ability to file PAGA claims on behalf of the state does not convert the state's interest into their own or render them real parties in interest.”  (Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, 972 aff'd (Cal., Aug. 1, 2024, No. S271721) 2024 WL 3611975.)

            Second, even assuming arguendo that there is some cognizable personal interest in a PAGA claim, non-party Lemus Jr. is not in a position to assert such personal interest in the PAGA claim.  As noted above, Lucio Lemus (Sr.) – not non-party Lucio Lemus Jr. – filed the Lemus Action.  (Stahle Decl. ¶ 3, Exh. A [Lemus Action Complaint].)  Rather, non-party Lemus Jr. was substituted into the Lemus Action as a successor in interest after Lucio Lemus (Sr.) passed.  (Stahle Decl. ¶ 6, Exh. D.)  However, there is no assignable interest in a PAGA claim.  (Amalgamated Transit Union, Local 1756, AFL-CIO, supra, 46 Cal.4th at p.1003.)  Moreover, “a right that cannot be assigned does not survive the death of the person entitled to it.”  (In re Blair's Estate (1954) 42 Cal.2d 728, 731.)  Thus, “[Lucio Lemus (Sr.)]'s death necessitated the dismissal of h[is] PAGA claim unless h[is] PAGA complaint could be amended to substitute [Lemus Jr.] as the representative plaintiff.”  (Hargrove v. Legacy Healthcare, Inc. (2022) 80 Cal.App.5th 782, 789.)  A party can only substitute into a PAGA action after the death of the representative plaintiff “if []he meets PAGA's prerequisites (standing, notice, & statute of limitations) and the amended complaint is able to relate back to the original complaint (i.e., it rests on the same general set of facts, involves the same injury, & involves the same cause of injury).”  (Id. at p.791.) 

            Here, non-party Lemus Jr. clearly does not have standing to assert the PAGA claim in the Lemus Action.  “For standing, the representative plaintiff must be “an ‘aggrieved employee’ who can represent the state as a PAGA plaintiff and sue ‘on behalf of himself or herself and other current or former employees.’ ” (Hargrove, supra, 80 Cal.App.5th at p.791.)  There is no allegation or evidence to show that Lemus Jr. was an aggrieved employee of Defendant.  In fact, the only asserted basis for Lemus Jr.’s standing is as Lucio Lemus (Sr.)’s successor in interest.  Thus, non-party Lemus Jr. fails to show that he has a viable PAGA claim. 

            Non-party Lemus Jr.’s reliance on the statutes governing survivability of civil causes of action – e.g., Code of Civil Procedure sections 377.20, et seq. – is inapposite.  For a claim to be passed to a successor in interest, the claim must survive the death.  (CCP § 377.21, [“A pending action or proceeding does not abate by the death of a party if the cause of action survives.”].)  A PAGA claim does not survive.  (Hargrove, supra, 80 Cal.App.5th at p.789.)

            Accordingly, non-party Lemus Jr. does not have a cognizable interest to support intervention under Code of Civil Procedure section 387.

CONCLUSION AND ORDER

            Based on the forgoing, non-party Lucio Lemus, Jr.’s motion for leave to intervene is DENIED.

Plaintiffs are ordered to download the instant signed order from the Court's website and to file proof of service of the instant order on all other parties within five (5) days.

DATED: August 20, 2024                                                      ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court