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Moniz v. Adecco U.S.A, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION 4
Feb 11, 2020
A155474 (Cal. Ct. App. Feb. 11, 2020)

Opinion

A155474

02-11-2020

RACHEL MONIZ, Plaintiff and Respondent, v. ADECCO USA, INC., Defendant and Respondent; PAOLA CORREA, Movant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. 17-CIV-01736)

I. INTRODUCTION

Paola Correa appeals the denial of her motion to intervene in plaintiff Rachel Moniz's litigation pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, §§ 2698 et seq.) against defendant Adecco USA, Inc. (Adecco). Correa argues that her motion was timely and that she is entitled to both mandatory and permissive intervention. Even assuming Correa's motion was timely, Correa fails to establish her entitlement to mandatory or permissive intervention. We therefore affirm.

PAGA "authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees, with most of the proceeds of that litigation going to the state." (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 (Iskanian).)

II. BACKGROUND

This case has a lengthy and complicated procedural history, as it involves two years of litigation between several parties spanning multiple courts. By way of brief background, more than one year before attempting to intervene in this case (Moniz), Correa was added as a plaintiff in a separate PAGA case against Adecco: Doe, et al. v. Google, et al. (Super Ct. S.F. City and County, 2016, No. CGC-16-556034 (Doe/Correa)). The trial court in Doe/Correa found that nearly all of plaintiffs' claims were preempted, and this court denied an untimely petition for writ relief. Doe/Correa is on appeal. After the unfavorable rulings in Doe/Correa, Correa sought to intervene in Moniz.

Because additional details regarding the facts and procedural history are vital to our analysis, we describe them in some detail below. A. The parties

Defendant Adecco is a staffing firm that supplies temporary labor to a variety of companies. Adecco hires temporary employees called "Associates" who are temporarily placed at Google and other corporate clients. Adecco employs tens of thousands of Associates in California. Additionally, Adecco employs several hundred full-time employees called "Colleagues" who run its operations, sell its services, and manage its temporary workforce. Adecco requires both Colleagues and Associates to sign various confidentiality and non-disclosure agreements (NDAs). Moniz was an Adecco Colleague who managed Adecco's relationship with Google, and Correa was an Adecco Associate assigned to work at Google. Moniz worked for Adecco until spring of 2016, and Correa worked for Adecco until December 13, 2016. B. PAGA notices and complaints against Adecco in Doe/Correa and Moniz

In December 2016, John Doe filed a PAGA complaint against Google in San Francisco Superior Court. Doe's complaint alleged that Google's NDAs, policies, and practices violated numerous provisions of the California Labor and Business and Professions Codes.

On February 1, 2017, Moniz filed a PAGA notice with the Labor Workforce and Development Agency (LWDA) alleging that Adecco impermissibly required her to agree to several illegal terms in its "Employment Agreement for Colleagues in California" (the Colleague Agreement). Moniz was an Adecco Colleague, and never an Associate, but her PAGA notice stated that she intended to file a complaint against Adecco on behalf of "all current and former employees, including but not limited to 'Colleagues,' who worked for Adecco in California."

On February 14, 2017, Correa filed a PAGA notice alleging, among other things, that Adecco's NDAs, policies, and practices violated various sections of the Labor Code. Correa's PAGA notice incorporated the facts alleged in Doe's complaint against Google.

In March 2017, Doe filed a second amended complaint adding Correa as a plaintiff and Alphabet, Inc. and Adecco as defendants (Doe/Correa). The operative fifth amended complaint in Doe/Correa alleges that Adecco required Correa to sign an "Employee Acknowledgement and Confidentiality and Non-Disclosure Agreement," which Correa believes Adecco "require[d] all employees throughout California to sign." The fifth amended complaint alleges numerous facts pertaining to all of Adecco's California employees.

Moniz filed this case against Adecco in San Mateo County in April of 2017, nearly a month after Doe and Correa filed their second amended complaint in Doe/Correa in San Francisco. C. Pretrial proceedings in Doe/Correa and Moniz

On May 3, 2017, Moniz served Correa with a notice of related case. That notice informed Correa that both Moniz and Doe/Correa "involve[d] the same parties and [are] based on the same or similar claims," and arose "from the same or substantially identical transactions."

Correa did not attempt to intervene in Moniz after receiving the notice of related case, but, beginning in 2018, both Moniz and Correa began attempting to mediate with Adecco. Although Correa, Moniz, and Adecco initially agreed to a global mediation of Moniz and Doe/Correa, the global mediation fell apart, leaving the parties to mediate individually with Adecco.

Progress in the Doe/Correa mediation was cut short when the trial court in Doe/Correa sustained without leave to amend Google's demurrer on the basis of "Garmon preemption" for all claims but one; the court subsequently granted Adecco's demurrer to all claims against Adecco on the same basis. (See San Diego Unions v. Garmon (1959) 359 U.S. 236.) When the Moniz court ruled on Correa's motion to intervene, the only remaining cause of action as to Adecco in Doe/Correa pertained to Google's "Employee and Temporary Workers Adult Content Liability Release," which is not at issue in Moniz; in other words, the Doe/Correa court dismissed all claims that overlap with those in Moniz.

The Moniz court declined to follow the Doe/Correa court's lead and denied Adecco's demurrer on Garmon grounds. The court then set a merits discovery cutoff of June 8, 2018 and trial on September 4, 2018. D. Adecco seeks to coordinate Doe/Correa and Moniz

Both Adecco and Moniz argue that Moniz has since settled, but the initial record on appeal did not include a final settlement order. From the parties' supplemental briefing and documents obtained from San Mateo Superior Court, we have gleaned the following: Moniz purported to settle her PAGA claims against Adecco, and the trial court approved that settlement on July 3, 2019. The trial court then granted a motion to vacate the settlement by the LWDA and Correa. Moniz and Adecco filed a second motion to approve the settlement in September 2019, and the Moniz court approved the settlement on November 22, 2019. Notwithstanding the court's recent approval of the settlement, we decline to dismiss Correa's appeal as moot, and we express no opinion as to the validity of the order approving the settlement. However, as Adecco has filed a Request for Judicial Notice in this appeal relating to the vacated settlement, it is denied as irrelevant.

Adecco filed a petition to coordinate Doe/Correa and Moniz. Adecco argued that Doe/Correa and Moniz asserted the same claims on behalf of the same plaintiff group. The judge assigned to hear the coordination request denied Adecco's petition because, by that point, "Doe's only remaining cause of action concern[ed] a specific Release, concerning exposure to adult content during the course of employment at Google." By contrast, Moniz did not involve a Google release, and Moniz included "claims on behalf of all Adecco employees, not just those who worked for Google."

In January 2018, Adecco filed two writ petitions: one challenging the denial of its petition for coordination and one challenging the Moniz court's denial of its motion to stay this litigation. This court denied both petitions on February 6, 2018. E. The Moniz "scope issue"

Throughout the Moniz litigation, Moniz and Adecco disputed whether Moniz's PAGA notice and complaint encompassed claims relating to the NDAs signed by both Colleagues and Associates, and Adecco sought to limit the scope of Moniz to Colleagues. The court and the parties referred to this debate regarding whether Moniz covered alleged violations as to both Colleagues and Associates as the "scope issue." F. Correa's motion to intervene and Moniz's individual settlement

On April 11, 2018, Correa moved to intervene in Moniz. She filed this motion four months after the Doe/Correa court dismissed all claims relating to Adecco's NDAs, eleven months after Moniz served Correa with the notice of related case, and—as explained in more detail below—eight days after Correa learned that Moniz had settled her individual claims against Adecco. Although the background allegations in Correa's complaint in intervention differ from those in Moniz's complaint insofar as they focus on Correa's experience as an Associate and the NDA she was required to sign, the statutory bases and allegations supporting each of the five PAGA causes of action in Correa's complaint in intervention precisely mirror those in Moniz.

Correa notified Adecco's and Moniz's counsel of her intent to move to intervene on March 21, 2018, before learning of Moniz's individual settlement. Nonetheless, she relied in part on Moniz's individual settlement in her motion to intervene filed on April 11, 2018, and she described the potential problems arising from Moniz's settlement at the hearing on her motion to intervene.

Concurrently with the motion to intervene, Correa's counsel filed a declaration attaching a copy of a March 2018 "meet and confer letter" from Adecco's former counsel to Moniz's counsel "concerning the 'scope' issue." In the letter, Adecco's counsel took the position that Moniz's PAGA notice and complaint covered only Adecco Colleagues, not Associates, and stated that "Moniz [was] barred from amending her Complaint and/or PAGA Notice in [the Moniz] action due to the confidential settlement agreement between Moniz, Adecco, and Google related to her individual claims brought against Adecco and Google." Adecco's counsel sent Correa's counsel a copy of this letter on April 3, 2018.

At the time it ruled on Correa's motion to intervene, the Moniz court had not yet decided the "scope issue." On July 31, 2018 (more than three months after Correa filed her motion to intervene), the court found that Moniz's PAGA notice included facts and theories supporting alleged violations as to both the NDAs signed by Colleagues and Associates. (See Lab. Code, § 2699.3, subd. (a)(1)(A).) As far as this court is aware, however, the court has not expressly decided whether Moniz's complaint (as opposed to her PAGA notice) contains factual allegations sufficient to cover claims as to both Colleagues and Associates. We note that Moniz's PAGA notice and complaint are similar, though not identical.

Moniz asserts the meet-and-confer letter was "presumably provided to Correa by Adecco's former counsel for use as 'ammunition' in her then-forthcoming motion to intervene," but she does not dispute that she settled her individual claims. At the hearing on the motion to intervene, Moniz admitted to settling her individual claims, but stated that these unspecified individual claims were "unrelated to the claims at issue" in her PAGA case. The record does not contain a copy of Moniz's individual settlement agreement.

Correa argued in the trial court that she was entitled to mandatory intervention because she had an interest relating to the property or transaction at issue, because the eventual disposition in Moniz could impair her ability to protect that interest, and because Moniz did not adequately represent that interest. Specifically, Correa argued that Moniz could not adequately represent her interests because of the "scope issue"—i.e., that Moniz's case potentially covered only Colleagues—and because Moniz's individual settlement prevented her from amending her PAGA notice or complaint to include Associates. Correa called Moniz's settlement a "potential conflict" and asserted that, in light of Moniz's inability to amend her PAGA notice or complaint, she could not "adequately represent the interests of the State and the [A]ssociates."

Moniz opposed Correa's motion to intervene, and Adecco did not take a position. At the hearing on the motion, after Moniz's counsel made equivocal statements regarding Correa's intervention and whether it would resolve the scope issue, the court took the matter under submission and gave the parties an opportunity to stipulate to the intervention. The parties could not reach a stipulation, and as a result, Moniz continued to oppose Correa's intervention. G. The Moniz court's denial of Correa's motion to intervene

The court denied Correa's motion on several grounds, including timeliness. In addressing timeliness, the court stated: "Only after Correa battled through rounds of demurrer and after her PAGA claims (except one) were dismissed, and after her petition for writ on that pretrial dismissal of some (but not all) claims was denied, and after coordination was denied, and after her petition for writ of denial of coordination was denied, and after she was unable to settle her case—and only after the Moniz case proceeded through the pleadings, . . . and after Moniz was set (in January 2018) for trial as well as pretrial dates and deadlines—did Correa now seek to intervene and serve as a PAGA representative in the Moniz action." Noting that trial was set for September 4, 2018 with merits discovery cutoff on June 8, 2018, the trial court found that "intervention is untimely."

The court also found that Correa did not meet the requirements for either mandatory or permissive intervention. As to mandatory intervention, the court first cited Iskanian, reasoning that PAGA bestowed an "unwaivable" right to bring a PAGA claim on the state, not on individual plaintiffs. Second, the court found that Correa did not have a cognizable "interest" in a "transaction" that was the subject matter of Moniz because, as a PAGA representative acting on behalf of the state, Correa lacked an "individual" interest. Because Correa had no interest in the litigation, the court found the eventual disposition in Moniz could not impair or impede Correa's interest. Finally, the court found that Moniz adequately represented any interest Correa had, stating that "Correa has failed to demonstrate that Plaintiff Moniz, as the representative plaintiff, will personally harm the opportunity to recovery [sic] statutory penalties."

The court also exercised its discretion and rejected Correa's request for permissive intervention. In so ruling, the court relied on its earlier reasoning, which included its recognition that Correa "ALREADY BROUGHT A PAGA ACTION," and cited "no legal authority for the proposition that she has any 'right' to bring or prosecute as a named Plaintiff two PAGA lawsuits at the same time against the same Defendant."

III. DISCUSSION

Correa argues that her motion to intervene was timely and that she was entitled to intervene under the standards for both mandatory and permissive intervention.

Correa asserts that the court "questioned (but did not rule on)" the timeliness of her motion. This contention lacks merit, as the court expressly found that Correa's motion was untimely.

Before turning to the legal principles that guide our analysis, it is important to note that Correa's ability to intervene depends on Moniz's complaint being construed to include Associates. Why? Because if the "scope issue" is resolved such that Moniz does not cover Associates' potential claims against Adecco, then Correa's motion would fail because she has no interest that might be impaired or impeded by the disposition of Moniz. (Edwards v. Heartland Payment Sys., Inc. (2018) 29 Cal.App.5th 725, 732 (Edwards) [party seeking intervention must be situated such that " 'disposition of the action may as a practical matter impair or impede that person's ability to protect that interest' "], quoting Siena Court Homeowners Assn. v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1423-1424 (Siena Court).) Put another way, only if the complaint in Moniz is construed to cover Adecco's conduct toward Associates would Correa have an interest that could possibly support her request to intervene.

Edwards addressed the pre-2018 version of Code of Civil Procedure section 387. (Edwards, supra, 29 Cal.App.5th at p. 732, fn. 3.) As the 2018 amendments do not affect the substance of the statute, Edwards remains good law. (Ibid. [noting that the subdivisions of section 387 were "reorganized but the substantive requirements for intervention did not change"].)

With that in mind, we turn to the governing legal principles. A. Overview of PAGA

The purpose of PAGA is to "create a means of 'deputizing' citizens as private attorneys general to enforce the Labor Code." (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 501.) A PAGA plaintiff is an "aggrieved employee" who brings a civil action "personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations" as the "proxy or agent of the state's labor law enforcement agencies." (Iskanian, supra, 59 Cal.4th at p. 380; Lab. Code, § 2699.) In other words, a PAGA dispute is "a dispute between an employer and the state," rather than between the employer and the aggrieved employee. (Iskanian, at pp. 386-387.)

An "aggrieved employee" is "any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed." (Lab. Code, § 2699, subd. (c).) An aggrieved employee serving as a PAGA plaintiff, therefore, must have personally experienced only one of the alleged violations.

A PAGA plaintiff operates under several constraints. Because he or she sues employers on behalf of the state, the "plaintiff represents the same legal right and interest as state labor law enforcement agencies—namely, recovery of civil penalties that otherwise would have been assessed and collected by the [LWDA]." (Iskanian, supra, 59 Cal.4th at p. 380.) Thus, "a plaintiff suing under PAGA is limited to recovery of civil penalties only, rather than damages available privately through direct or class action claims." (Tenorio v. Gallardo (E.D. Cal., Sept. 30, 2019, No. 1:16-cv-00283-DAD-JLT) 2019 U.S. Dist. LEXIS 169313, *6.) Seventy-five percent of any civil penalties recovered through a PAGA suit are distributed to the LWDA, with the remaining 25 percent going to the aggrieved employees to be shared among themselves. (Lab. Code, § 2699, subd. (i); Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1079, fn. 5.)

Before suing under PAGA, an employee must provide notice of the alleged Labor Code violation to both the employer and the LWDA. (Lab. Code, §§ 2699, 2699.3, subd. (a)(1)(A).) The notice must contain the specific Labor Code provisions allegedly violated and the supporting facts and theories. (Lab. Code, § 2699.3, subd. (a)(1)(A).) If the LWDA does not intend to investigate, it shall notify the employer and the aggrieved employee of this intent within 60 days of the postmark date of the notice received; if the LWDA gives no such notice, within 65 days of the postmark date of the notice, the aggrieved employee may commence a civil action against the employer for the violations contained in the notice. (Id., § 2699.3, subd. (a)(2)(A).) If the agency decides to investigate, it has up to 180 days to do so, and if it notifies the employer and aggrieved employee that it will not issue a citation, or if no citation is timely issued, the aggrieved employee may commence a civil action. (Id., § 2699.3, subd. (a)(2)(B).) The statute of limitations for PAGA claims is one year (Code Civ. Proc., § 340, subd. (a)), and the statute is tolled while the aggrieved employee exhausts administrative remedies. (Ramirez v. Ghilotti Bros. Inc. (N.D. Cal. 2013) 941 F.Supp.2d 1197, 1209; Lab. Code, § 2699.3, subd. (d).) B. Intervention

1. Overview

Intervention permits a nonparty, deemed an intervenor, to become a party to an action or proceeding between other persons. (Code Civ. Proc., § 387, subd. (b).) "The purpose of allowing intervention is to promote fairness by involving all parties potentially affected by a judgment." (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1504; see also Lincoln National Life Ins. Co. v. State Bd. of Equalization (1994) 30 Cal.App.4th 1411, 1423 ["[The] purpose [of section 387] is to promote fairness by involving all parties potentially affected by the judgment to participate in the litigation"].) Accordingly, we construe section 387 "liberally . . . in favor of intervention." (Lindelli, at p. 1505.)

All further statutory references are to the Code of Civil Procedure unless otherwise noted.

There are two types of intervention: mandatory intervention, governed by section 387, subdivision (d)(1), and permissive intervention, governed by section 387, subdivision (d)(2). Section 387, subdivision (d)(1), is "in substance an exact counterpart" to Federal Rule of Civil Procedure 24, which was passed decades earlier and which governs federal joinder. (Edwards, supra, 29 Cal.App.5th at p. 732; see also Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 555-556.) Because section 387 was modeled after and is " 'virtually identical to' " rule 24 of the Federal Rules of Civil Procedure, California courts may look to federal court decisions in interpreting and applying the statute where there is otherwise no controlling California authority on point. (Ziani Homeowners Assn. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 280-281 (Ziani).)

2. Timeliness

Both mandatory and permissive intervention require that a motion to intervene be made "upon timely application." (§ 387, subd. (d)(1), (2); Edwards, supra, 29 Cal.App.5th at p. 732, fn. 4.) Timeliness is therefore " 'a prerequisite[] for granting an application to intervene." (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109; § 387, subd. (d)(1), (2).) Generally, the "right to intervene should be asserted within a reasonable time and[,] . . . the intervenor must not be guilty of an unreasonable delay after knowledge of the suit." (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108.) But in determining whether a proposed intervenor is guilty of "unreasonable delay," courts consider when the proposed intervenor learned not only of the existence of action, but also of relevant "facts concerning its nature and his interest." (Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661, 668.) We therefore measure timeliness not from the commencement of the litigation, but instead 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 Home Mortgage (2018) 27 Cal.App.5th 1001, 1013 (Lofton); see also Ziani, supra, 243 Cal.App.4th at p. 281 [citing cases].)

3. Requirements for Mandatory Intervention

As noted above, mandatory intervention is governed by section 387, subdivision (d)(1). To establish entitlement to mandatory intervention, a proposed intervenor must show " ' "(1) an interest relating to the property [or] transaction which is the subject of the action" '; (2) the party is ' "so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest" '; and (3) the party is not adequately represented by existing parties." (Edwards, supra, 29 Cal.App.5th at p. 732.) In short, " '[a]n intervenor of right has by definition . . . an interest at stake which the other parties will not fully protect, and which the intervenor can fully protect only [by] joining the litigation.' " (Siena Court, supra, 164 Cal.App.4th at p. 1424.) "Hence, intervention is permitted only when the intervener's participation is necessary to protect his or her interests." (Ziani, supra, 243 Cal.App.4th 274 at p. 282.)

4. Requirements for Permissive Intervention

Permissive intervention is governed by section 387, subdivision (d)(2). Under that section, " '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 opposition by the parties presently in the action.' " (Edwards, supra, 29 Cal.App.5th at p. 736.) C. Analysis

1. Timeliness

For purposes of this appeal, we assume that Correa's motion was timely based on her strongest argument: Correa's April 3, 2018 discovery of Moniz's individual settlement was a "change in circumstances" that marked the appropriate starting point for determining the timeliness of the April 11, 2018 motion to intervene. (Smith v. Los Angeles Unified School Dist. (9th Cir. 2016) 830 F.3d 843, 854 [allowing a party to intervene more than a decade after commencement of the litigation because of a "change in circumstances" that was a major reason for the motion to intervene]; see also Ziani, supra, 243 Cal.App.4th at p. 281 [timeliness measured not by when movant learned of the litigation, but when movant should have been aware his interests would no longer be adequately protected by the parties].) However, as we explain below, Correa's appeal nonetheless fails because Moniz is an adequate representative and because the court did not abuse its discretion in denying Correa's request to intervene on a permissive basis.

2. Mandatory Intervention

California cases are not settled on whether we review the denial of a request for mandatory intervention under section 387 de novo or for abuse of discretion. (Siena Court, supra, 164 Cal.App.4th at p. 1425 [citing cases].) Federal courts review such denials de novo. (Smith v. Marsh (9th Cir. 1999) 194 F.3d 1045, 1049.) We need not decide between the two standards because, under either standard, there was no error in the trial court's denial of Correa's request for mandatory intervention.

Here, Correa claims the following interests: her interest in Adecco's business conduct requiring employees to comply with illegal non-disclosure agreements; her interest in acting as a PAGA representative and preserving the overlapping claims from Doe/Correa; and her interest in a share of 25 percent of the civil penalties recovered in this case. Assuming without deciding that Correa has established the first two elements required for mandatory intervention, such intervention is not warranted because she has failed to establish that Moniz does not adequately represent her interests.

It is at least questionable whether Correa's interests in acting as a PAGA representative and in preserving the overlapping claims from Doe/Correa suffice to allow intervention in this case. PAGA provides a procedural mechanism pursuant to which an employee may bring PAGA claims in a representative capacity for the state. (Iskanian, supra, 59 Cal.4th at pp. 380-381.) But Correa exercised this option in her own PAGA suit. PAGA allows multiple concurrent lawsuits by aggrieved employees until one comes to final judgment. (See Arias v. Superior Court (2009) 46 Cal.4th 969, 984-987 [rejecting defendants' due process challenge and argument that all PAGA actions must be brought as class actions].) PAGA does not bestow upon a single plaintiff the right to act as the sole PAGA plaintiff or the right to be the first to final judgment.

Correa has the burden of establishing that hers is a proper case for intervention. (People v. Brophy (1942) 49 Cal.App.2d 15, 34.) "[T]he adequacy of interest requirement is more than a paper tiger. A party that seeks to intervene as of right must produce some tangible basis to support a claim of purported inadequacy." (Public Service Co. of New Hampshire v. Patch (1st Cir. 1998) 136 F.3d 197, 207.) Further, the burden of persuasion is ratcheted upward here because Moniz's interests and Correa's interests in bringing a representative PAGA suit are the same. If the applicant's interest is identical to that of one of the parties, a compelling showing should be required to demonstrate inadequate representation. (Perry v. Proposition 8 Official Proponents (9th Cir. 2009) 587 F.3d 947, 951.) A review of the facts of this case and Correa's showing leads us to conclude that Correa has not satisfied her burden.

Correa urges us to apply a federal standard whereby the proposed intervenor must demonstrate that the representation of her interests by the existing parties "may be" inadequate. (Defenders of Wildlife v. Johanns (N.D. Cal., Dec. 1, 2005, No. C 04-4512) 2005 U.S. Dist. LEXIS 34455, *22.) But she ignores the federal standard that applies when the proposed intervenor's interest is identical to that of one of the parties. The parties cite no California authority directly on point, and we decline Correa's invitation to draw some principles from federal law but at the same time ignore the standard that federal courts in the Ninth Circuit would apply to this case.

First, Correa's complaint in intervention, which defines the scope of her claims and interests in bringing a representative PAGA action against Adecco in this case, pleads the same theories and violations of Labor Code sections 232, 232.5, 432.5, 1102.5, subdivision (a), and 1197.5, subdivision (k) as alleged in Moniz's complaint. But unlike Correa, Moniz litigated her action successfully through demurrer and summary adjudication. Nothing in Moniz's litigation record suggests that she is an inadequate representative to pursue the civil penalties available for the Labor Code violations at issue.

Correa's inadequacy argument centers on her claim that Moniz cannot amend her complaint or PAGA notice going forward due to a settlement of her individual claims against Adecco and Google. To support this claim, Correa relies on a letter from Adecco's former counsel outlining Adecco's position on the "scope issue" in this lawsuit and stating, "As counsel is aware, Moniz is barred from amending her Complaint and/or PAGA Notice in this action due to the confidential settlement agreement between Moniz, Adecco, and Google." Moniz objected in her opposition to the motion to intervene, albeit briefly, that this letter was not competent to prove that Moniz was barred from amending her complaint or PAGA notice, and she disputed Correa's "characterization" of the letter. The individual settlement agreement is not part of the record.

Correa also claims inadequacy because she contends that the trial court has not determined whether the Associate NDA is within the scope of Moniz's complaint and because its determination that Moniz's PAGA notice includes the Associate NDA is vulnerable on appeal. But, as noted previously, if Moniz is confined to the Colleague NDA, Correa has no interest in this suit that will be impaired or impeded by the judgment. (Siena Court, supra, 164 Cal.App.4th at p. 1424.)

The full pertinent paragraph of the letter states, "As counsel is aware, Moniz is barred from amending her Complaint and/or PAGA Notice in this action due to the confidential settlement agreement between Moniz, Adecco, and Google related to her individual claims brought against Adecco and Google. In addition, notwithstanding the parties' binding settlement agreement, courts do not allow plaintiffs to amend PAGA notices after the filing of a civil complaint. See Ovieda v. Sodexo Operations, LLC, No. CV 12-1750, 2013 WL 3887873, at *5 (C.D. Cal. July 3, 2013) ('allowing an amended notice to be submitted after the civil action has already been filed defeats the very purpose of the exhaustion requirement, which is to give the LWDA the opportunity to make an informed decision about whether to pursue the matter itself'). This is critical because, to the extent the Court agrees with Adecco's position that Moniz's PAGA group is significantly limited based on the plain language of her PAGA Notice, Moniz will be unable to amend and/or cure the deficiencies of her Complaint and/or PAGA Notice."

At the hearing on the motion to intervene, the trial court questioned the parties regarding the settlement. Moniz stated that the settlement agreement "concerns individual claims that Ms. Moniz asserted against Adecco that are unrelated to the claims at issue in the instant Complaint." The court responded, "Okay. So it's the settlement [of] claims that have nothing to do with the claims that she has raised in this PAGA case?" Moniz confirmed this, and Adecco added that the settlement pertained to an unfiled lawsuit. The court asked both parties again, "So you have a final settlement of claims that pertain to her employment, but you left open and didn't settle the claims that are part of this case?" The parties confirmed this was correct. Correa's counsel stood by silently, and the record reflects that Correa at no time asked for or urged the court to request a redacted copy of Moniz's settlement agreement. Correa's counsel then argued, "[Moniz] has, or may have, an individual settlement that prohibits her from amending her Complaint," impliedly conceding the uncertainty of the existence of such a prohibition was uncertain. In denying intervention, the trial court found that Correa had failed to demonstrate that Moniz, as the representative plaintiff, would personally harm the opportunity to recover statutory penalties.

Thus, Correa's sole support for inadequacy is Adecco's letter reciting counsel's opinion of the legal ramifications of Moniz's individual settlement agreement, but the letter does not set forth the basis for counsel's assertion or, more importantly, the terms of the actual agreement. The content of a writing may be proven by an admissible original (Evid. Code, § 1520), or by trustworthy, admissible secondary evidence where the court determines no genuine dispute exists regarding the writing's material terms and justice does not require exclusion (id., § 1521, subd. (a)(1)). But Correa does not establish the letter is trustworthy, admissible secondary evidence of the content of Moniz's settlement agreement. And the letter clearly does not expressly set forth the terms of any such agreement. Further, Moniz disputed the letter's competency and Correa's characterization thereof. Correa assumes that Moniz's settlement agreement states that she will not amend her PAGA complaint or notice, but it is also possible that the settlement agreement contains a general release of all claims not already being litigated and Adecco's counsel took the aggressive position that the release barred Moniz from amending her PAGA complaint and notice to bring additional claims on her behalf and otherwise. The point is that the letter itself does not constitute sufficient evidence of the content of Moniz's settlement agreement, and Correa offers nothing else.

This letter was not offered against Adecco, who did not oppose the motion to intervene, although Adecco would not stipulate to intervention.

Even if Moniz individually entered into a settlement of her unrelated employment claims purporting to waive the right to amend the PAGA notice and complaint, such a waiver would not present an obstacle to Moniz's ability to amend in this case. In settling unrelated individual claims in a dispute to which the state was not a party, Moniz could not in her individual capacity restrict her ability to act in her representative capacity in the PAGA lawsuit. (See Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990 [plaintiff who signed licensing agreement in his capacity as a corporate officer was not individually bound by the agreement]; Cal. U. Com. Code, § 3402, subd. (b); Curtis G. Testerman Co. v. Buck (1995) 667 A.2d 649, 654-655; New York Ass'n for Ret. Children v. Keator (1993) 199 A.D.2d 921, 923; McCarthy v. Azure (1st Cir.1994) 22 F.3d 351, 360 [the distinction between individual capacity and representative capacity portends a meaningful legal difference].)

Adecco argues that waiving a right to amend is immaterial because a PAGA notice cannot be amended. Federal courts have found that an initially deficient PAGA notice may not be amended after commencing a civil action, as permitting amendment then "defeats the very purpose of the exhaustion requirement, which is to give the LWDA the opportunity to make an informed decision about whether to pursue the matter itself." (Ovieda v. Sodexo Operations, LLC (C.D. Cal., July 3, 2013, No. CV 12-1750) 2013 U.S. Dist. LEXIS 99293, *15-*16; Avilez v. Pinkerton Gov't Servs., Inc. (C.D. Cal., Dec. 29, 2015, No. CV 11-0493-DOC) 2015 U.S. Dist. LEXIS 172700, *57-*58.) But one California case accepted that, where the original PAGA notice gives sufficient notice of a claim, the PAGA notice and complaint may be amended after the statute of limitations runs to include claims that relate back to the claim sufficiently alleged in the original notice. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 841-842.)

Further, to the extent Moniz executed the settlement agreement in her individual capacity, such a contract would appear to constitute an unenforceable waiver of the right to prosecute representative PAGA claims under Iskanian. In Iskanian, an employee agreed to waive the right to bring representative actions in his individual employment agreement. (Iskanian, supra, 59 Cal.4th 348 at p. 360.) Reviewing PAGA; Civil Code section 1688, which invalidates contracts that exempt their parties from "violation[s] of law"; and Civil Code section 3513, which invalidates private contracts that contravene "a law established for a public reason," the Supreme Court concluded that an agreement waiving the right to bring a PAGA representative claim impermissibly disables a primary mechanism for enforcing the Labor Code. (Id. at pp. 382-383.) Although an employee is free to choose whether to bring a PAGA claim after he or she is aware of the Labor Code violations, any agreement waiving this right before a dispute arises violates public policy. (Id. at pp. 383-384.) Under Iskanian's reasoning, Moniz could not, as an individual and as part of an individual employment settlement, waive the right to amend the complaint to bring as-yet unknown PAGA representative claims.

Civil Code section 1668 provides that "[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law."
Civil Code section 3513 states: "Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement."

Correa concedes that Iskanian may invalidate any alleged waiver of the right to amend the complaint and PAGA notice, but she argues that Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, provides contrary authority and holds that an employee may waive the right to prosecute a PAGA claim postdispute. Julian addressed whether two employees had to arbitrate PAGA claims or whether their agreement to arbitrate such claims—executed predispute and before the employees exhausted PAGA's administrative requirements and became agents of the state—violated public policy. (Julian, at p. 869.) The court held that the employees' agreements to arbitrate PAGA claims were unenforceable. (Id. at pp. 863, 873-874.) In doing so, the court recognized a distinction between an employee's ability to agree to arbitrate PAGA claims postdispute, when acting as an agent of the state, and the employee's inability to bind the state to such waiver prior to becoming the state's agent. (Id. at pp. 869-873.) An individual settlement agreement purporting to waive the right to amend a complaint to bring as-yet unknown PAGA representative claims is different than an agreement to arbitrate known Labor Code violations executed by an employee acting as an agent of the state postdispute. For these reasons, Julian is distinguishable.

Correa overstates the import of Moniz's settlement when contending that, should it become necessary, Moniz will not argue any alleged waiver in her individual settlement agreement is invalid because doing so would invalidate her entire settlement agreement. In Iskanian, the Supreme Court invalidated a clause waiving the right to bring PAGA representative claims in an employment agreement, but concluded the agreement was otherwise enforceable according to its terms. (Iskanian, supra, 59 Cal.4th at p. 391.)

To the extent that Moniz executed the settlement agreement in her representative capacity (a factual assumption for which Correa provides no evidence), the relinquishment of the right to amend a PAGA notice and complaint to include additional claims via a settlement agreement would also be unenforceable for running afoul of the Labor Code provision requiring court approval of PAGA settlements. "The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court." (Lab. Code, § 2699, subd. (l)(2).) The record does not reflect that the LWDA received notice of Moniz's individual settlement, and the trial court clearly did not review or approve the settlement.

Finally, Correa also erroneously attaches significance to Moniz's alleged inability to amend by claiming that she will not be able to amend her complaint to include factual allegations conforming to proof at trial. This concern is overstated, as a complaint is not required to include each evidentiary fact that ultimately forms part of a plaintiff's proof at trial. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Correa also argues that Moniz may not be able to amend her PAGA notice to include the Associate NDA should that become necessary. But again, if the court's determination that Moniz's PAGA notice includes the Associate NDA is reversed, Correa has no interest in this case.

To summarize, Correa's argument for inadequacy rests on the existence of a settlement term that she assumes, but has not established, exists. Given that Correa's interests are identical to Moniz's interests in litigating this PAGA suit, Correa failed to make a sufficient showing of inadequacy, and the trial court did not err in finding that she was not entitled to mandatory intervention.

3. Permissive Intervention

We review the denial of permissive intervention for abuse of discretion. (Edwards, supra, 29 Cal.App.5th at p.736.) The trial court did not abuse its discretion in finding that the interests opposing intervention outweighed Correa's interest in the action. At the time of Correa's motion, trial was four months away, and the merits discovery cutoff and summary judgment hearing were just two months away. Because Moniz adequately represented Correa's interest, the trial court could reasonably conclude that permitting Correa to intervene so late in the process was "impractical."

If this litigation does not include the Associate NDA, Correa's intervention would also necessarily impermissibly enlarge the issues in the case.

IV. DISPOSITION

The order denying Correa's motion to intervene is affirmed.

We deny Correa's Request for Judicial Notice in Support of Appellant's Reply Brief, as the documents are not relevant to our analysis. --------

/s/_________

BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.


Summaries of

Moniz v. Adecco U.S.A, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION 4
Feb 11, 2020
A155474 (Cal. Ct. App. Feb. 11, 2020)
Case details for

Moniz v. Adecco U.S.A, Inc.

Case Details

Full title:RACHEL MONIZ, Plaintiff and Respondent, v. ADECCO USA, INC., Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION 4

Date published: Feb 11, 2020

Citations

A155474 (Cal. Ct. App. Feb. 11, 2020)