Filed 8/25/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION ONE


 CHAD STARKS,                             B288005, B292643

         Plaintiff and Respondent,        (Los Angeles County
                                          Super. Ct. No. BC590955)
         v.

 VORTEX INDUSTRIES, INC.,

         Defendant and Respondent;

 ADOLFO HERRERA,

         Movant and Appellant.

                                          (Los Angeles County
 ADOLFO HERRERA,                          Super. Ct. No. BC644313)

         Plaintiff and Appellant,

         v.

 VORTEX INDUSTRIES, INC.,

         Defendant and Respondent.
      APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
      Matern Law Group, Matthew J. Matern, Matthew W.
Gordon, Kiran Prasad and Vanessa M. Rodriguez for Movant and
Appellant Adolfo Herrera (B288005 & B292643 [Super. Ct. No.
BC590955]) and for Plaintiff and Appellant Adolfo Herrera
(B288005 & B292643 [Super. Ct. No. BC644313]).
      Shenkman & Hughes, Kevin Shenkman; Law Offices
of Milton C. Grimes, Milton Grimes; Lawyers for Justice and
Edwin Aiwazian for Plaintiff and Respondent Chad Starks
(B288005 & B292643 [Super. Ct. No. BC590955]).
      Sheppard, Mullin, Richter & Hampton and Ryan D.
McCortney for Defendant and Respondent Vortex Industries, Inc.
(B288005 & B292643 [Super. Ct. Nos. BC590955 & BC644313]).

                  ____________________________

       The Labor and Workforce Development Agency (LWDA) is
authorized to recover civil penalties from employers for violations
of the Labor Code. Under the Labor Code Private Attorneys
General Act of 2004 (PAGA) (Lab. Code,1 § 2698 et seq.),
an employee aggrieved by his or her employer’s Labor Code
violations may be authorized to act as an agent of the LWDA to
recover such penalties in a civil action. In the cases underlying
these consolidated appeals, Chad Starks and Adolfo Herrera,
each acting as the LWDA’s agent, separately filed substantially
identical PAGA actions against their former employer, Vortex
Industries, Inc. (Vortex). Herrera, who filed his PAGA action (the

      1 Unless otherwise specified, subsequent statutory
references are to the Labor Code.




                                   2
Herrera action) 16 months after Starks commenced his action
(the Starks action), never moved to consolidate the cases and
did little to litigate his action.
       Starks settled with Vortex. The court approved the
settlement and entered judgment thereon. The LWDA thereafter
accepted its share of the judgment proceeds. After learning
of the judgment, Herrera moved to vacate the judgment and
to intervene in the Starks action. The court denied the motions
and subsequently granted Vortex’s motion for summary judgment
against Herrera.
       Herrera appealed the denial of his motions in the Starks
action and the judgment in his lawsuit. We hold: (1) The trial
court did not abuse its discretion when it determined that
Herrera’s motion to intervene in the Starks action was untimely;
and (2) Because the LWDA accepted the proceeds from the
judgment in the Starks action, Herrera, as the LWDA’s agent,
cannot attack that judgment. We also affirm the judgment in
the Herrera action.

      FACTUAL AND PROCEDURAL BACKGROUND
      Vortex is in the business of repairing and replacing
commercial and industrial doors. It employed Starks as a
service technician from January 2011 to November 2014, and
employed Herrera as a service technician from July 2015 to
November 2015.
      On June 30, 2015, pursuant to section 2699.3, Starks
gave notice to the LWDA and Vortex of his allegations that
Vortex violated certain Labor Code requirements, including
requirements that employers pay overtime wages (§§ 510,
1198), provide meal and rest periods (§§ 226.7, 512, subd. (a)),
timely pay wages during and upon termination of employment




                                    3
(§§ 201-202, 204), provide complete and accurate wage
statements and payroll records (§§ 226, subd. (a), 1174,
subd. (d)), pay minimum wages (§§ 1194, 1197, 1197.1), and
reimburse employees for necessary business expenses (§ 2802).
Sparks stated that he intended to recover “on behalf of all
aggrieved employees . . . all applicable penalties related to
these violations.” The LWDA did not respond to the notice.
       On August 10, 2015, Starks filed a complaint in the
superior court commencing the Starks action. He asserted
a single cause of action under PAGA based upon allegations
that Vortex failed to comply with the Labor Code requirements
specified in his notice to the LWDA. The case was assigned to
Judge Richard L. Fruin.
       On December 1, 2016, the court issued an order bifurcating
the trial in the Starks action. The first phase would determine
whether Starks is an “aggrieved employee” under PAGA.2 The
second phase would determine whether there are other aggrieved
employees and the amount of civil penalties.
       Meanwhile, on October 11, 2016, Herrera gave notice
to the LWDA and Vortex of his intention to sue Vortex based
upon allegations of Labor Code violations similar to those Starks
had previously alleged. The LWDA did not respond to Herrera’s
notice.
       On December 16, 2016, Herrera filed his complaint,
commencing the Herrera action, alleging a single cause of action
under PAGA, based upon the violations of the Labor Code

     2   Section 2699, subdivision (c) defines an “aggrieved
employee” for the purposes of PAGA as “any person who was
employed by the alleged violator and against whom one or more
of the alleged violations was committed.”




                                   4
requirements he had alleged in his notice. The Herrera action
was initially assigned to Judge Monica Bachner.
       In January 2017, Vortex filed a demurrer seeking a stay
of the Herrera action on the ground that there was another action
pending—the Starks action—and that a stay was proper under
the rule of exclusive concurrent jurisdiction. (See Code Civ.
Proc., § 430.10, subd. (c).) The court rejected these arguments
and denied the request for a stay.
       On March 17, 2017, Vortex filed in both the Herrera and
Starks actions notices that the actions are related cases pursuant
to rule 3.300 of the California Rules of Court. The court
thereafter declared the two cases related and reassigned the
Herrera action to Judge Fruin. The court noted that its order
was without prejudice to the parties filing a motion to consolidate
the actions. Herrera did not file a motion to consolidate. Nor
does it appear from our record that Herrera litigated his case
beyond propounding some initial discovery, while the parties
in the Starks action conducted discovery and proceeded to trial.
       During five days in July 2017, the court conducted the first
phase of the bifurcated trial in the Starks action and found that
Starks is an aggrieved employee for purposes of PAGA.
       On September 27, 2017, the court held a case management
conference in the Herrera action. During the conference,
counsel for Vortex stated that Starks and Vortex were engaged
in settlement discussions and that “Herrera is encompassed
in the non-party employees that Starks . . . represents in the
Starks action.” Vortex’s counsel also expressed his agreement
with the court’s statement that a settlement in the Starks
action “has implications to the Herrera case.” Nevertheless,
Herrera’s counsel gave no indication that Herrera would move




                                   5
to consolidate the two cases or intervene in the Starks action.
The court, over Herrera’s objection, ordered the Herrera action
stayed until November 1, 2017, and set a further conference for
that date.3
       On October 2, 2017, Starks and Vortex participated in a
mediation, which resulted in a written settlement agreement
conditioned upon the court’s approval. According to the
agreement, Vortex agreed to an aggregate settlement amount
of $675,000, allocated as follows: $630,000 of the settlement
amount “shall be regarded as” Starks’s counsel’s attorney fees
and costs; $25,000 is “attributable to the representative PAGA
claim”; $10,000 is “designated as the portion . . . attributable
to the Labor Code section 558 penalties/wages”; and $10,000 is
allocated to Starks as a “plaintiff representative service award.”
Of the $25,000 allocated to the PAGA portion, Vortex would
pay $18,750 to the LWDA within 15 days of the court’s approval
of the settlement; the remainder (i.e., $6,250), as well as the
entirety of the portion attributable to section 558 (i.e., $10,000),
would be paid within 45 days of the court’s approval to Vortex’s
“current and former service technicians, employed by [Vortex]
at any time during the time period of June 30, 2014 through
the date of court approval of the settlement.” The settlement
agreement included a release of civil claims against Vortex for
penalties under PAGA.



      3  The only order imposing a stay in the Herrera action, so
far as our record reveals, is dated September 27, 2017. Although
a partial and temporary discovery stay was ordered in the Starks
action prior to the filing of Herrera’s complaint, it did not apply to
the Herrera action.




                                     6
        On October 5, 2017, Starks’s counsel provided a copy of the
settlement agreement to the LWDA. The LWDA did not object to
the agreement.
        On October 12, 2017, Vortex and Starks filed a joint
ex parte application for court approval of the settlement
agreement. They did not give notice of the application or a copy
of the settlement agreement to Herrera or any other aggrieved
employee of Vortex. At the hearing on the application, the court
accepted the parties’ stipulation that Herrera “need not be
notified of settlement at this time.” The court instructed the
parties to file additional declarations and set a further hearing
for October 18, 2017.
        During the October 18, 2017 hearing, the trial court
directed Starks to file a first amended complaint and Vortex
to file an answer thereto.4 A minute order concerning the
hearing states that “[t]he case is settled” and that the court
intended to sign and file a proposed order and judgment
approving the settlement agreement.
        On October 24, 2017, the trial court issued an order
and judgment approving the settlement agreement (the Starks
judgment), thereby terminating the action. Herrera was not
given notice of the order or judgment. The Starks judgment
incorporated by reference the “terms and conditions” of the
settlement agreement and “direct[ed] the implementation of all
remaining terms, conditions, and provisions” of the settlement
agreement. It further provided that the settlement agreement
“shall be binding on all [a]ggrieved [e]mployees and the State of

      4 The first amended complaint Starks filed thereafter
added a claim for civil penalties under section 558, but was
otherwise identical in all material respects to his prior complaint.




                                    7
California, who are hereby barred from re-litigating” the claims
released in the settlement agreement.
      At the continued case management conference held on
November 1, 2017, Herrera’s counsel informed the court that he
had learned of the settlement in the Starks action on October 24,
2017, by “checking the [court’s] docket.” During the hearing, the
court lifted the stay in the Herrera action.
      By check dated November 7, 2017, Vortex paid the LWDA
the amount of $18,750 due to it under the judgment. The LWDA
cashed the check sometime prior to December 13, 2017.
      On November 9, 2017, Herrera filed a motion to vacate
the Starks judgment pursuant to Code of Civil Procedure
section 663.5 Herrera asserted he had standing to make the
motion because the judgment in the Starks action “materially
affects” his “substantial rights . . . in that it purportedly has a
preclusive effect on his claims under [PAGA]” and his “right to
enforce the California Labor Code.”
      On November 13, 2017, Herrera filed a motion to intervene
in the Starks action pursuant to Code of Civil Procedure
section 387.6 In support of the motion, Herrera submitted a
proposed complaint in intervention asserting a single cause of


      5 Herrera also moved for a new trial, which the court
denied. Herrera does not challenge that ruling.
      6   Herrera states in his reply brief that he filed his motion
to intervene three days before the Starks judgment was entered.
His citations to the record, however, show that he is referring
to the filing of a notice of entry of the judgment on November 16,
2017, not the judgment, which was entered on October 24, 2017.
Herrera’s motion to intervene was filed approximately three
weeks after the entry of the judgment.




                                     8
action under PAGA and generally mirroring the complaint filed
in the Herrera action.
       On December 8, 2017, a third party administrator issued
and mailed to each “aggrieved employee” under the Starks
settlement a check for that employee’s portion of the Starks
judgment proceeds.
       On December 13, 2017, during the hearing held on
Herrera’s motions, Starks’s counsel introduced evidence that the
LWDA had cashed the check representing the state’s portion of
the proceeds from the Starks judgment. After argument, the
court denied both motions.
       On December 14, 2017, the check issued to Herrera in the
amount of $33.30 cleared. According to Herrera, his wife cashed
the check without his knowledge or endorsement. Herrera has
not returned the funds or placed them in a trust account, but,
in opposition to a motion to dismiss his appeal, he stated that he
is “ready, willing and able to return the $33.30 to Vortex in order
to pursue [his] appeal.”
       On February 2, 2018, Herrera appealed the Starks
judgment and the trial court’s orders denying his motions to
intervene and to vacate the judgment in the Starks action.
       On July 13, 2018, the court granted Vortex’s motion for
summary judgment in the Herrera action. The court explained
that the Herrera action is barred by the terms of the settlement
agreement and judgment in the Starks action and under the
doctrine of res judicata. The court further stated that the
Herrera action could not be maintained after Herrera and the
LWDA accepted the benefits of the settlement by cashing their
respective checks.




                                    9
      On August 17, 2018, the trial court entered judgment
in favor of Vortex in accordance with its order granting the
summary judgment motion. Herrera timely appealed.
      On March 4, 2019, this court consolidated Herrera’s
appeals.

                          DISCUSSION
      A.    PAGA Background
       California law provides for civil penalties for violations
of certain Labor Code provisions. (See, e.g., §§ 210, subd. (a),
225.5, 226.3, 256, 2699, subd. (f).) Prior to the enactment of
PAGA, many of these penalties were “ ‘enforceable only by the
state’s labor law enforcement agencies.’ ” (Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 381
(Iskanian).) In enacting PAGA, “[t]he Legislature declared that
adequate financing of labor law enforcement was necessary to
achieve maximum compliance with state labor laws, that staffing
levels for labor law enforcement agencies had declined and were
unlikely to keep pace with the future growth of the labor market,
and that it was therefore in the public interest to allow aggrieved
employees, acting as private attorneys general, to recover civil
penalties for Labor Code violations.” (Arias v. Superior Court
(2009) 46 Cal.4th 969, 980 (Arias).) PAGA thus “augment[ed]
the limited enforcement capability of the [LWDA] by empowering
employees to enforce the Labor Code as representatives of the
[LWDA]” (Iskanian, supra, 59 Cal.4th at p. 383) and “deputizing
[them] to prosecute Labor Code violations on the state’s behalf”
(id. at p. 360).
       Although PAGA empowers an LWDA-deputized employee
to prosecute an action on behalf of the state and aggrieved




                                   10
employees, who share any civil penalties recovered in the
action, the law does not create in favor of any employee any
“property rights,” “substantive rights,” or “assignable interest.”
(Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior
Court (2009) 46 Cal.4th 993, 1003; see also Medina v. Vander
Poel (E.D.Cal. 2015) 523 B.R. 820, 827 [the employee has
no claim to the penalties recoverable under PAGA; and the
state “alone holds a property interest in them”].) Rather, an
authorized PAGA plaintiff “acts as ‘ “the proxy or agent of the
state’s labor law enforcement agencies” ’ and ‘ “represents the
same legal right and interest as” ’ those agencies—‘ “namely,
recovery of civil penalties that otherwise would have been
assessed and collected by the [LWDA].” ’ [Citation.]” (ZB,
N.A. v. Superior Court (2019) 8 Cal.5th 175, 185 (ZB).)
        To become an agent of the LWDA for purposes of PAGA,
an aggrieved employee must first “notify the employer and
the [LWDA] of the specific labor violations alleged, along with
the facts and theories supporting the claim. [Citations.] If the
agency does not investigate, does not issue a citation, or fails
to respond to the notice within 65 days, the employee may sue.”
(Kim v. Reins International California, Inc. (2020) 9 Cal.5th
73, 81 (Kim); see § 2699.3, subd. (a).) Even though an employee
is thus authorized to “commence a civil action” under PAGA
(§ 2699.3, subd. (a)(2)(A)), the “ ‘government entity . . . is always
the real party in interest’ ” (Kim, supra, 9 Cal.5th at p. 81) and
the action “is an enforcement action between the LWDA and
the employer, with the PAGA plaintiff acting on behalf of the
government.” (Id. at p. 86; see also ZB, supra, 8 Cal.5th at p. 185
[“[a]ll PAGA claims . . . are brought on the state’s behalf”];




                                    11
Iskanian, supra, 59 Cal.4th at p. 386 [a PAGA claim “is a dispute
between an employer and the state”].)
       Because a PAGA plaintiff acts “as the proxy or agent
of the state’s labor law enforcement agencies” and the PAGA
action “functions as a substitute for an action brought by the
government itself, a judgment in that action binds all those,
including nonparty aggrieved employees, who would be bound
by a judgment in an action brought by the government.” (Arias,
supra, 46 Cal.4th at p. 986; see also ZB, supra, 8 Cal.5th at
p. 196 [“[n]onparty employees are bound by the judgment in
an action under . . . PAGA, but only with respect to recovery
of civil penalties”].) Thus, although courts have held that
different aggrieved employees may be deputized by the LWDA
to pursue PAGA actions concurrently against the same employer
(Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 866; Tan v.
Grubhub, Inc. (N.D.Cal. 2016) 171 F.Supp.3d 998, 1013), a
judgment obtained in one action will bar other PAGA actions
against the employer under the doctrine of res judicata (Arias,
supra, 46 Cal.4th at p. 986; Robinson v. Southern Counties
Oil Company (Aug. 13, 2020, A158791) __ Cal.App.5th __
[2020 WL 4696742 at pp.*2–*3]; cf. Villacres v. ABM Industries
Inc. (2010) 189 Cal.App.4th 562, 592 [PAGA action barred by
res judicata where plaintiff was a class member in a prior class
action in which a PAGA claim could have been asserted and
which concluded with a court-approved settlement]).
       Seventy-five percent of civil penalties recovered in a PAGA
action are paid to the LWDA; the remaining 25 percent is paid
“to the aggrieved employees.” (§ 2699, subd. (i).) If parties
in a PAGA lawsuit agree to settle, the “proposed settlement
shall be submitted to the [LWDA],” and the “court shall review




                                   12
and approve [the] settlement.” (§ 2699, subd. (l)(2).) Although
our Supreme Court has stated that this provision ensures that
“any negotiated resolution is fair to those affected” (Williams v.
Superior Court (2017) 3 Cal.5th 531, 549), California courts have
not determined the standards by which a trial court reviews and
approves a proposed settlement.

      B.    The Trial Court Did Not Err in Denying
            Herrera’s Motion to Intervene
       Three weeks after the court approved the settlement in
the Starks action and entered judgment thereon, Herrera filed
a motion to intervene in that case. Motions to intervene are
governed by Code of Civil Procedure section 387, subdivision (b),
which, at the time Herrera filed his motion, provided in pertinent
part: “[I]f the person seeking intervention claims an interest
relating to the property or transaction which is the subject of the
action and that person 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, unless that person’s interest is
adequately represented by existing parties, the court shall, upon
timely application, permit that person to intervene.”7 (Code Civ.
Proc., former § 387, subd. (b); Stats. 1977, ch. 450, § 1, p. 1486.)
       Regarding his interest in the subject of the Starks action,
Herrera stated that he “has been deputized with the same
authority as . . . Starks to pursue his respective claims against


      7  Code of Civil Procedure section 387 was amended
effective January 1, 2018 in ways that are not material to this
case. (Stats. 2017, ch. 131, § 1, pp. 1918–1919; see Edwards v.
Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732,
fn. 3.)




                                    13
Vortex on behalf of the LWDA and other aggrieved employees.”
He argued that the Starks judgment “impedes his ability to
protect that interest” because of the judgment’s res judicata
effect on his action. He asserted that this interest had not been
adequately represented based on the settlement agreement’s
“disproportionate allocation” of funds to Starks and his counsel.
Lastly, Herrera argued that his motion was timely because
Starks’s alleged inadequate representation did not become
apparent until the terms of the settlement were disclosed.
       The trial court denied Herrera’s motion because, among
other reasons, it was untimely. We review that determination
for abuse of discretion. (Lofton v. Wells Fargo Home Mortgage
(2018) 27 Cal.App.5th 1001, 1012–1013; U.S. v. Alisal Water
Corp. (9th Cir. 2004) 370 F.3d 915, 918 (Alisal).) Under this
standard, we will not disturb the court’s decision “as long as
there exists ‘a reasonable or even fairly debatable justification,
under the law, for the action taken, . . . even if, as a question
of first impression, we might feel inclined to take a different
view from that of the court below as to the propriety of its
action.’ [Citation.]” (Gonzales v. Nork (1978) 20 Cal.3d 500,
507.) Herrera, as the appellant, has the burden of establishing
an abuse of discretion. (See Denham v. Superior Court (1970)
2 Cal.3d 557, 566; In re Marriage of Brewster & Clevenger (2020)
45 Cal.App.5th 481, 500.)
       Courts evaluate the timeliness of a motion to intervene
based on the totality of the circumstances. (NAACP v. New York
(1973) 413 U.S. 345, 366; Legal Aid Soc. of Alameda Co. v.




                                   14
Dunlop (9th Cir. 1980) 618 F.2d 48, 50.)8 Courts consider three
factors: (1) the stage of the proceeding when the prospective
intervenor moved to intervene; (2) the reason for and length of
the delay; and (3) the prejudice to parties to the existing action if
intervention is allowed. (Alisal, supra, 370 F.3d at p. 921; accord,
Cal. Dept. of Toxic Substances v. Commer. Realty (9th Cir. 2002)
309 F.3d 1113, 1119 (DTSC).)
      The first factor, the stage of the proceedings—here,
postjudgment—supports denial of the motion. Three weeks
earlier, the court had approved the settlement and entered
judgment. Although, as Herrera points out, the entry of
judgment does not always preclude intervention (Hernandez v.
Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267; Edwards v.
Heartland Payment Systems, Inc., supra, 29 Cal.App.5th at
p. 734, fn. 6), filing of the motion at that late stage weighs very
heavily against granting it. (Noya v. A.W. Coulter Trucking
(2006) 143 Cal.App.4th 838, 842; Heartwood, Inc. v. U.S. Forest
Service, Inc. (7th Cir. 2003) 316 F.3d 694, 700–701; County
of Orange v. Air California (9th Cir. 1986) 799 F.2d 535, 538


      8  The pertinent version of Code of Civil Procedure
section 387, subdivision (b) was based on rule 24(a)
of the Federal Rules of Civil Procedure (28 U.S.C.) and
the Legislature “intended it to be interpreted consistently
with federal cases interpreting” the federal rule. (Hodge v.
Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540,
556.) California courts have thus relied on federal cases
interpreting the federal rule. Reliance on federal authorities
is particularly apt in evaluating the timeliness requirement
because of the lack of California authorities addressing the
issue. (See Ziani Homeowners Assn. v. Brookfield Ziani
LLC (2015) 243 Cal.App.4th 274, 280–281 (Ziani).)




                                    15
(County of Orange); Alaniz v. Tillie Lewis Foods (9th Cir. 1978)
572 F.2d 657, 659 (Alaniz).)
       As one court explained, “[o]nce settlement efforts are
completed and embodied in a final judgment, the parties expect
to be able to tailor their future actions and decisions in reliance
on that judgment. It follows inexorably that modifying a
settlement term can knock the props out from under justifiable
reliance of this sort. Moreover, courts have long recognized the
systemic benefits of policies favoring the voluntary resolution of
disputes.” (Banco Popular de Puerto Rico v. Greenblatt (1st Cir.
1992) 964 F.2d 1227, 1232 (Banco Popular).) Post-settlement
“attacks on the terms of a fully consummated settlement disserve
these salutary policies, undermining the finality of judicial
decrees and depriving the original litigants of choices that were
theirs to make.” (Ibid.)
       This rationale applies here. In reliance on the court-
approved settlement and judgment, Vortex promptly delivered
the judgment proceeds to the LWDA and Vortex’s aggrieved
employees, which the LWDA and Herrera—and presumably
other Vortex employees—have cashed. Herrera’s attempt to
intervene, vacate the judgment, and void the settlement would,
if successful, “knock the props out from” the parties’ reliance on
the agreement.
       A second factor—the reason for and length of the delay—
also supports the court’s exercise of discretion. Herrera’s
motion was filed more than two years after the Starks action
began, more than eight months after Herrera learned of
Starks’s lawsuit, and seven months after he could have moved
to consolidate the two actions. At the time the court declared
the cases related, it indicated that it would consider a motion to




                                   16
consolidate them. Indeed, in light of the “common question[s]
of law [and] fact” in the two cases (see Code Civ. Proc., § 1048,
subd. (a)), and the judicial economy of a single proceeding,
consolidation was appropriate and, if Herrera had requested
it, eminently likely. (See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2019) ¶ 12.359,
pp. 12(1)-68 to 12(1)-69 [in moving to consolidate, the party need
only show “that the issues in each case are basically the same,
and that ‘economy and convenience’ would be served by a joint
trial”].) Herrera, however, never followed up on this option and
offers no explanation for failing to do so. Had he consolidated
the cases, he would have received notice of proceedings between
Starks and Vortex and had a voice in settlement discussions.
Herrera’s suggestions that Starks and Vortex should have kept
him apprised of events and negotiations in the Starks action
but failed to do so, therefore, are attributable to his own lack of
diligence.
       Herrera attempts to excuse his delay in moving to
intervene by asserting that he did not learn of Starks’s alleged
inadequate representation until the terms of the settlement
were disclosed in October 2017. Even if we assume that the
settlement terms are unfavorable to the LWDA, “a potential
intervenor can[not] sit idly by and await the receipt of infinitely
precise information about every ramification of a pending case.”
(Banco Popular, supra, 964 F.2d at p. 1231.) Because “[c]omplete
knowledge [as to whether an existing party is protecting the
potential intervenor’s interest] is unlikely to be attained short
of final judgment,” “the law contemplates that [the potential
intervenor] must move to protect its interest no later than when
it gains some actual knowledge that a measurable risk exists.”




                                   17
(Ibid.; see R & G Mortg. Corp. v. Federal Home Loan Mortg.
(1st Cir. 2009) 584 F.3d 1, 8 (R & G) [“[p]erfect knowledge of the
particulars of the pending litigation is not essential to start the
clock running; knowledge of a measurable risk to one’s rights is
enough”].)
       Because Herrera filed his action after the Supreme
Court’s decision in Arias, he knew or should have known that,
if the court entered a judgment in the Starks action prior to a
judgment in his action, his action would probably be foreclosed
under the doctrine of res judicata. (See Arias, supra, 46 Cal.4th
at pp. 985–986.) Starks’s 16-month head start and Herrera’s
failure to prosecute his PAGA action rendered that outcome
highly likely. Although it was possible that the Starks action
would settle on terms Herrera would find acceptable, there was
certainly a significant risk that Starks would settle his PAGA
action on terms that Herrera would find unacceptable. That
risk was enough to require Herrera to act to protect his PAGA
claim through consolidation or intervention. (See DTSC, supra,
309 F.3d at p. 1120; see also R & G, supra, 584 F.3d at p. 8 [“[i]n
the last analysis, the timeliness inquiry centers on how diligently
the putative intervenor has acted once he has received actual or
constructive notice of the impending threat”].)
       As we do here, courts have rejected arguments similar
to Herrera’s. In County of Orange, supra, 799 F.2d 535, for
example, a proposed intervenor, the City of Irvine, attempted
to explain its filing of a post-settlement motion to intervene
by arguing that “it did not intervene sooner because it did not
know until . . . the date it learned of the proposed [s]tipulated
[j]udgment[ ] that its interests were not being adequately
represented by the original parties. In other words, this was




                                   18
allegedly the first time that [the City of] Irvine realized that the
end result of the protracted litigation would not be entirely to its
liking.” (Id. at p. 538.) The Ninth Circuit rejected the argument
because the city “should have realized that the litigation
might be resolved by negotiated settlement,” the existence of
negotiations among the parties had been publicized, and the
city “should have contemplated” that the negotiations would be
detrimental to its interests and protected itself by intervening
sooner. (Ibid.)
       Similarly, in Alaniz, the prospective intervenors waited
until after the existing parties entered into a consent decree
before seeking to intervene. The prospective intervenors
explained that they waited because “they did not know the
settlement decree would be to their detriment.” (Alaniz, supra,
572 F.2d at p. 659.) “But,” the Ninth Circuit responded, “surely
they knew the risks. To protect their interests, appellants should
have joined the negotiations before the suit was settled.” (Ibid.;
cf. Hernandez v. Restoration Hardware, Inc., supra, 4 Cal.5th
at pp. 264, 272 [appellant class member had the opportunity
to intervene in the trial court proceedings during the trial on
the merits, but instead “made a strategic choice to wait and see
if [appellant] agreed with the settlement amount and attorney
fees agreement”].)
       In DTSC, supra, 309 F.3d 1113, a California state agency,
numerous oil companies, and certain landowners were involved
in years of litigation that resulted in an “Oil Consent Decree.”
(Id. at p. 1117.) After the consent decree was entered, certain
cities sought to intervene and attempted to explain their delay
by arguing that “they could not have determined that the Oil
Consent Decree would affect their interests or that the [state




                                    19
agency] would not protect their interests until they were notified
of the terms of the decree.” (Id. at pp. 1119–1120.) The Ninth
Circuit rejected the argument, stating that “ ‘[a] party seeking
to intervene must act as soon as he knows or has reason to
know that his interests might be adversely affected by the
outcome of the litigation.’ [Citation.] While [the cities who
sought to intervene] were not certain that the consent decree
would be adverse to their interests, they had reason to know
that negotiations might produce a settlement decree to their
detriment. . . . [The c]ities could have intervened sooner to protect
themselves from this eventuality [and] should have known that
the risks of waiting included possible denial of their motions
to intervene as untimely.” (Id. at p. 1120, boldface omitted.)
       Like the prospective intervenors in these cases, Herrera
knew or should have known that the Starks action might
be resolved by a settlement that would be detrimental to his
claim. Because of that risk, he “could have intervened sooner”
and should have known that the risks of waiting included the
possibility that he would not be satisfied with the judgment.
(See DTSC, supra, 309 F.3d at p. 1120). Indeed, Herrera was
informed of pending settlement discussions in the Starks action
no later than the case management conference on September 27,
2017, yet he gave no indication of any intent to intervene until
after the judgment was entered approximately one month later.
       A third factor in evaluating the timeliness of a motion
to intervene is the prejudice that results from the prospective
intervenor’s failure to move for intervention at the earlier
appropriate time. (Smith v. Los Angeles Unified School Dist.
(9th Cir. 2016) 830 F.3d 843, 857; Stallworth v. Monsanto
Co. (5th Cir. 1977) 558 F.2d 257, 267.) Here, Herrera’s late




                                    20
intervention is prejudicial because it would increase the expense
and burden on the parties in the Starks action and the already
overburdened courts without any assurance that the LWDA
would obtain a better result from reopening the case. As the
Ninth Circuit stated in Alaniz, the judgment “is already being
fulfilled; to countermand it now would create havoc and postpone
the needed relief.” (Alaniz, supra, 572 F.2d at p. 659.)
       For all the foregoing reasons, the court did not abuse its
discretion in finding that Herrera’s motion to intervene was
untimely.
       Herrera’s reliance on Ziani, supra, 243 Cal.App.4th 274 is
misplaced. In that case, a condominium homeowners association
sued the condominium developer alleging construction defects in
the development. After the homeowners association announced
a settlement, certain homeowners sought to intervene. The
court denied the motion on the ground that it was untimely and
indicated that the individual homeowners should have sought to
intervene “at or about the time the case was filed.” (Id. at p. 280.)
The Court of Appeal reversed, holding that the trial court
“used the wrong date as the starting point for determining the
timeliness of the [m]otion. The court should have used the date
on which [the homeowners] knew or should have known their
interests in this litigation were not being adequately represented
by the homeowners association, not the date on which [they]
knew or should have known about this litigation.” (Id. at p. 282.)
The court directed the trial court to make a factual finding as
to when the moving parties “knew or should have known their
interests in this litigation were not being adequately represented
by the homeowners association, and then to reconsider the




                                    21
timeliness of the [m]otion, using that date as the starting point
for the timeliness analysis.” (Id. at p. 283.)
       Ziani does not hold that prospective intervenors can wait,
like Herrera did, until a settlement in the existing action has
been announced before filing a motion to intervene. Indeed, had
that been the court’s conclusion, there would have been no need
to direct the trial court to make a factual finding on remand
concerning the point when the homeowners knew or should
have known that their interests were not being adequately
represented. That point, the court’s direction implies, may
have occurred well before the announcement of the settlement.
Nothing in our holding or analysis conflicts with Ziani.

      C.    Appeal From the Orders Denying Herrera’s
            Motion to Vacate the Starks Judgment is
            Barred by the State’s Acceptance of the Starks
            Judgment Proceeds
       Although Herrera was never a party in the Starks action,
he asserted that he had standing to file a motion to vacate
the Starks judgment because he is aggrieved by that judgment.
He is aggrieved, he argued, because the judgment in the Starks
action “effectively undercut” his PAGA claim and “materially
affected [his] substantial interest and right to enforce the
California Labor Code.” On appeal, he argues further that, as
“an aggrieved employee and proxy for the [s]tate, [he] should
have been permitted to move . . . to vacate the judgment in the
Starks matter.” (Italics omitted.)
       Starks argues that Herrera cannot challenge the judgment
in his case because the LWDA was provided with a copy of the
settlement agreement, failed to object to the settlement, and




                                   22
instead accepted the benefits of the judgment when it cashed the
check for its full share of the settlement proceeds. We agree.
       Generally, “one who accepts the benefits of a judgment
cannot thereafter attack the judgment by appeal.” (Lee v. Brown
(1976) 18 Cal.3d 110, 114 (Lee); accord, Schubert v. Reich (1950)
36 Cal.2d 298, 299; San Bernardino v. Riverside (1902) 135 Cal.
618, 620.) As our Supreme Court explained in an early case,
“[t]he right to accept the fruits of a judgment, and the right of
appeal therefrom are not concurrent. On the contrary, they are
totally inconsistent. An election to take one of these courses is,
therefore, a renunciation of the other.” (Estate of Shaver (1900)
131 Cal. 219, 221.)
       Starks filed and maintained the Starks action on behalf
of the LWDA and solely in his capacity as a “ ‘proxy or agent’ ”
of the LWDA. (See Iskanian, supra, 59 Cal.4th at p. 380;
Arias, supra, 46 Cal.4th at p. 985.) His lawsuit was thus “an
enforcement action between the LWDA and the employer” (Kim,
supra, 9 Cal.5th at p. 86), and the LWDA was “always the real
party in interest” (Iskanian, supra, 59 Cal.4th at p. 382). When
the LWDA received the settlement agreement and cashed the
check for its portion of the proceeds pursuant to the Starks
judgment, it thereby accepted the benefits of the judgment and,
so far as our record shows, did so unconditionally and without
objection.9 (Cf. Besco Enterprises, Inc. v. Carole, Inc. (1969)

      9 Contrary to the assertion in the concurring and
dissenting opinion (the concurrence/dissent), we do not hold
or imply that the LWDA is bound by the terms of the settlement
agreement between Starks and Vortex. Although the LWDA
is bound, under Arias, supra, 46 Cal.4th at p. 986, by the
Starks judgment, we express no view as to whether “the LWDA




                                   23
274 Cal.App.2d 42, 44 [party’s cashing of check constitutes
acceptance of payment].) Under the general rules set forth above,
therefore, the LWDA has forfeited its right to attack the Starks
judgment on appeal. Because the LWDA could not challenge
the judgment, its proxies or agents could not do so on its behalf.
(See Channel Lumber Co. v. Porter Simon (2000) 78 Cal.App.4th
1222, 1228 [agent may not “do that which the principal cannot
do personally”]; Rest.3d Agency, § 3.04, com. b, p. 204 [“[t]he
capacity to do a legally consequential act by means of an agent
is coextensive with the principal’s capacity to do the act”].)
       Despite the LWDA’s acceptance of the Starks judgment
proceeds, Herrera contends that he should be permitted to
challenge the judgment because he, like Starks, is a “PAGA
representative” who has been “deputized by the LWDA to file
a PAGA action.” Regardless of the power such deputizing may
have given Herrera to “commence” his lawsuit (see § 2699.3,
subd. (a)(2)(A)) or even to maintain it concurrently with the
Starks action (see Tan v. Grubhub, Inc., supra, 171 F.Supp.3d at
p. 1013), it did not imbue him with the right to attack a judgment
in another action when the government agency and real party for
whom he purports to act—the LWDA—has accepted the benefits
of that judgment and is itself precluded from making such an
attack.
       Although there are limited exceptions to the rule that
one who accepts the benefits of a judgment waives the right to
challenge it on appeal (see Lee, supra, 18 Cal.3d at pp. 114–116),



is deemed . . . to have accepted the terms of the underlying
settlement agreement.” (Conc. & dis. opn. post, at p. 3.)




                                   24
Herrera does not assert that any exceptions apply here.10
Indeed, although the LWDA’s acceptance of the benefits of
the judgment as a bar had been raised below and in Starks’s
respondent’s brief on appeal, Herrera did not meaningfully
respond to it in his opening or reply briefs. The closest Herrera
comes to addressing this point is in his argument concerning
the requirement that the trial court review and approve of
a PAGA settlement. (See § 2699, subd. (l)(2).) He states that
“[g]iven the statute’s plain and unambiguous language, neither
LWDA’s check cashing nor an aggrieved employee’s acceptance
of money, can substitute for the review and order approving
a PAGA settlement.” We do not disagree with this statement;
the trial court’s statutory obligation to “review and approve any
settlement of any civil action filed” under PAGA is independent
of the LWDA’s acceptance of the judgment proceeds. (Ibid.)
Herrera’s statement, however, does not address Starks’s point
that neither the LWDA, as the real party in interest, nor the
LWDA’s proxy (here, Herrera) can pursue an appeal to challenge


      10  The concurrence/dissent suggests that the LWDA
should not be bound by its acceptance of the judgment proceeds
because it is an understaffed government agency that relies
on PAGA proceeds to operate. (Conc. & dis. opn. post, at p. 6,
fn. 5 & pp. 6–9.) The rule that one who accepts the benefits
of a judgment cannot attack that judgment, however, applies
to governments, as well as private litigants (see San Bernardino
v. Riverside, supra, 135 Cal. at p. 620), and to appellants who are
“forced” to accept the proceeds due to their “financial situation”
(see Bulpitt v. Bulpitt (1951) 107 Cal.App.2d 550, 553). We
therefore decline to create an exception to the rule for resource-
strapped parties lest the exception swallows the rule.




                                   25
a judgment after the LWDA accepts the benefits of the
judgment.11
      Herrera did respond to a similar argument by Starks
and Vortex that Herrera is barred from appealing the orders
in the Starks action because the settlement check for his
individual portion of the Starks settlement had been cashed.
Herrera asserts that the general rule precluding appeal after
accepting the benefits of a judgment does not apply under
such circumstances because his wife deposited the settlement
check without his knowledge or endorsement, and that he
would be entitled to the $33.30 he received even if his appeal
is unsuccessful. Even if these arguments had merit, which we
do not decide here, as to the cashing of his personal settlement
check, they do not apply to the LWDA’s acceptance of the
judgment proceeds.

      11  The concurrence/dissent asserts that a “logical
consequence” of our conclusion is that “trial and appellate courts
in future cases would be foreclosed from independently reviewing
the substance of a PAGA settlement so long as the LWDA cashed
its settlement check.” (Conc. & dis. opn. post, at p. 6.) Not only
does PAGA’s requirement of judicial review of PAGA settlements
preclude such foreclosure (§ 2699, subd. (l)(2)), but the court’s
review and approval of the settlement will necessarily occur prior
to the entry of judgment and the payment and acceptance of the
judgment proceeds. In this case, for example, the employer’s
obligation to disburse settlement funds was expressly conditioned
upon the court’s approval of the settlement; without that
approval, the LWDA would never have received the funds. The
concurrence/dissent’s concern that parties will send settlement
checks and the LWDA will accept them prior to the court’s
review and approval of the settlement agreement, therefore, is
unfounded.




                                   26
       Herrera asserts, however, that, apart from his role as
“a proxy for the [s]tate,” he can challenge the Starks judgment
because of his “dual status as an ‘aggrieved employee.’ ” Herrera
offers no authority for such a rule. Instead, he refers us only to
the general principle that one has standing to appeal if he or she
has been aggrieved by the judgment; that is, if his or her “rights
or interests are injuriously affected by the judgment.” (County
of Alameda v. Carleson (1971) 5 Cal.3d 730, 737.) The judgment
in a PAGA action, however, encompasses only civil penalties
to which aggrieved employees have no right or interest. (See
Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior
Court, supra, 46 Cal.4th at p. 1003; Medina v. Vander Poel,
supra, 523 B.R. at p. 827.) The “[c]ivil penalties” recoverable
under PAGA “are an interest of the state,” which may be
recovered only by the state’s labor law enforcement agencies or
aggrieved employees when authorized under PAGA “to do so as
agents of the state.” (ZB, supra, 8 Cal.5th at p. 195; see also Kim,
supra, 9 Cal.5th at p. 87 [“[t]here is no individual component to a
PAGA action because ‘ “every PAGA action . . . is a representative
action on behalf of the state” ’ ”].) Therefore, neither Herrera
nor any other aggrieved employee has standing, as aggrieved
employees, to challenge the Starks judgment.
       Referring to Kim, the concurrence/dissent asserts that
“binding Supreme Court precedent holds that Herrera has
standing to challenge the Starks judgment precisely because
he is an ‘aggrieved employee’ for the purposes of PAGA.”
(Conc. & dis. opn. post, at p. 2, fn. 2 & pp. 13–18.) Kim held
that an employee who asserts both a PAGA claim and an
individual non-PAGA claim against his employer and then
settles the non-PAGA claim can continue to assert the PAGA




                                   27
claim “as the state’s authorized representative.” (Kim, supra,
9 Cal.5th at p. 80.) Nothing in Kim suggests that one aggrieved
employee can attack a judgment in another aggrieved employee’s
PAGA action after the LWDA has accepted the benefits of that
judgment. Indeed, Kim reaffirms a foundation of our opinion
that an aggrieved employee asserts “a PAGA claim only as
the state’s designated proxy.” (Id. at p. 87; accord, Bautista v.
Fantasy Activewear, Inc. (2020) 52 Cal.App.5th 650, 656.)
      Because the LWDA is barred from attacking the Starks
judgment by its acceptance of the benefits of the judgment,
Herrera cannot attack the judgment in his capacity as the
LWDA’s proxy and agent; and he has no authority for attacking
the judgment in any other capacity. We therefore reject his
challenge to the Starks judgment and the order denying his
motion to vacate the judgment.12

     D.    Summary Judgment in the Herrera Action Is
           Proper
      Vortex moved for summary judgment on three grounds:
(1) The Starks settlement and judgment bar Herrera’s lawsuit;
(2) The doctrine of res judicata bars Herrera’s lawsuit; and
(3) Herrera lacks standing to prosecute the lawsuit because
he cashed his personal settlement check from the Starks action.
In support of the motion, Vortex submitted the Starks settlement
agreement, the Starks judgment, and evidence that the LWDA
cashed its settlement check, which Herrera did not dispute.


     12   We do not address the question whether Herrera would
have had standing to attack the Starks judgment either in the
trial court or on appeal if the LWDA had not accepted the
benefits of the Starks judgment.




                                  28
       The trial court granted Vortex’s motion on each ground.
“Importantly,” the court found that “the LWDA [a]pproved [t]he
Starks [s]ettlement without objection” and accepted its terms
“when it cashed the settlement check.” Regarding the effect
of the settlement and judgment in the Starks action, the court
explained that it “covers current and former service technicians
employed by Vortex at any time during the time period of
June 30, 2014 to October 24, 2017 . . . , and [Herrera] admits
he was employed as a service technician at Vortex from July 10,
2015 to November 11, 2015.” Regarding the res judicata
argument, the court stated that it “agrees with [Vortex’s]
argument to the effect that res judicata bars this action. The
judgment in [the] Starks [action] is final and on the merits; both
lawsuits involve the same cause of action; and [Herrera] is in
privity with Starks as a nonparty ‘aggrieved employee’ covered
by the Starks [s]ettlement and judgment.”
       “ ‘We review the ruling on a motion for summary
judgment de novo, applying the same standard as the trial
court.’ [Citation.] ‘Summary judgment is appropriate only
“where no triable issue of material fact exists and the moving
party is entitled to judgment as a matter of law.” ’ [Citation.]”
(Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33
Cal.App.5th 70, 76.)
       On appeal, Herrera challenges the court’s res judicata
determination on the ground that, as a result of his appeal,
the Starks judgment is not final.13 Herrera is correct that,


      13 In the trial court, Herrera asserted that res judicata
did not apply in this case based on differences between his and
Starks’s PAGA claims and an alleged lack of privity among




                                   29
“in California the rule is that the finality required to invoke the
preclusive bar of res judicata is not achieved until an appeal from
the trial court judgment has been exhausted or the time to appeal
has expired.” (Franklin & Franklin v. 7-Eleven Owners for
Fair Franchising (2000) 85 Cal.App.4th 1168, 1174; see Manco
Contracting Co. (W.L.L.) v. Bezdikian (2008) 45 Cal.4th 192, 202
[under California law, “a judgment is not final and conclusive
between the parties when it is on appeal”].) The court’s
premature ruling on this ground, however, was harmless because
we affirm the Starks judgment in this opinion and, once the
remittitur issues, it will have the required finality. If we were to
reverse the judgment in the Herrera action because the judgment
in the Starks action was not yet final at the time the court ruled
on Vortex’s summary judgment motion, the trial court would
simply make the same ruling after remand, this time grounded
properly upon the finality of the Starks judgment. The waste
of judicial resources and time following such a disposition is
unjustifiable. (See Haines v. Pigott (1959) 174 Cal.App.2d 805,
807–808 [although res judicata did not apply at time of trial in
first action because judgment in second action was not then final,
after judgment in second action became final, the court dismissed
the appeal of the first action where reversal “would be futile”
because, “[o]n retrial, the plea of res judicata obviously would
be made by plaintiffs and would have to be sustained”].)
       In any case, summary judgment is proper based on the
LWDA’s acceptance of the judgment proceeds. For the reasons
discussed above, the state is bound by the Starks judgment

Starks and “aggrieved employees” as defined in Herrera’s
complaint. Herrera does not assert these arguments on appeal
and, therefore, we do not consider them.




                                   30
pursuant to its acceptance of the benefits of that judgment.
The LWDA, like other parties, cannot “take the money and
continue the lawsuit,” either directly or through an agent.
(Myerchin v. Family Benefits, Inc. (2008) 162 Cal.App.4th
1526, 1529, disapproved on other grounds in Village Northridge
Homeowners Assn. v. State Farm Fire & Casualty Co. (2010)
50 Cal.4th 913, 929, fn. 6; Rest.3d Agency, § 3.04, com. b, p. 204.)
Because Herrera’s PAGA claim, in substance, is encompassed
within the Starks judgment, its maintenance is barred by the
LWDA’s acceptance of the benefits of the Starks judgment.
Summary judgment was therefore proper.

                          DISPOSITION
      The judgment in the Starks action (Los Angeles County
Superior Court case No. BC590955) and the orders denying
Herrera’s motion to intervene and to vacate the judgment in that
action are affirmed.
      The judgment in the Herrera action (Los Angeles County
Superior Court case No. BC644313) is affirmed.
      Respondents are entitled to recover their costs on appeal.
      CERTIFIED FOR PUBLICATION.



                                           ROTHSCHILD, P. J.
I concur:



                  CHANEY, J.




                                    31
      BENDIX, J., Concurring and Dissenting.
       Two cases are before us in this consolidated appeal:
Starks v. Vortex Industries, Inc. (Starks) and Herrera v. Vortex
Industries, Inc. (Herrera). Both allege claims under the Labor
Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code,1
§ 2698 et seq.) Without informing the Herrera plaintiff of the
terms of the settlement or an ex parte motion seeking trial court
approval of that settlement, the Starks parties obtained a
judgment in Starks based on the settlement. When the Herrera
plaintiff learned of the settlement and judgment in Starks, he
sought to intervene in Starks to contest the fairness of the
settlement. The trial court denied that motion. The majority
holds that the Herrera plaintiff’s motion to intervene in Starks
was untimely and therefore the trial court did not err in denying
the motion to intervene. I concur.
       The Herrera plaintiff also sought to vacate the judgment in
Starks. The trial court denied that motion. Thereafter, Vortex
moved for summary judgment in Herrera. The trial court
granted Vortex’s motion because inter alia the settlement in
Starks was res judicata in Herrera. The majority affirms the
trial court’s denial of Herrera’s motion to vacate the Starks
judgment and the trial court’s grant of summary judgment in
Herrera. I respectfully dissent from both rulings.
       By holding that the Labor and Workforce Development
Agency’s (LWDA’s) cashing a settlement check precludes an
aggrieved employee from contesting the fairness of a PAGA
settlement, the majority effectively insulates PAGA settlements
from judicial review. As the settlement before us demonstrates—


      1   Undesignated statutory citations are to the Labor Code.
so stealthily procured and lopsided as to merit court scrutiny—
judicial review is essential to achieving PAGA’s enforcement of
the wage and hour laws.

I.    The LWDA’s Cashing of the Starks Settlement Check
      Does Not Preclude Herrera from Challenging the
      Fairness of That Settlement
       PAGA settlements too often escape review because the
parties have no incentive to question the fairness of their own
settlement and the LWDA is too under-resourced meaningfully to
review every PAGA settlement for fairness. Added to these
realities, there appears to be no California authority identifying
the standard a trial court applies to “review and approve any
settlement of any civil action filed pursuant to [PAGA].” (§ 2699,
subd. (l)(2).) This case presented an opportunity to provide
guidance to the trial courts on this statutory mandate. Instead,
today’s decision tacitly relegates the trial courts and appellate
courts to auditors searching for whether the LWDA cashed a
settlement check.
       At first glance, the majority’s holding could be viewed as
narrow—the LWDA simply waived its right to challenge the
Starks judgment on appeal, and this waiver is imputed to
Herrera.2 Actually, that reasoning is substantially broader.

      2 Near the conclusion of its analysis of the waiver issue,
the majority asserts that “neither Herrera nor any other
aggrieved employee has standing, as aggrieved employees, to
challenge the Starks judgment.” (See maj. opn. ante, at p. 27.)
As discussed post, part II.A, binding Supreme Court precedent
holds that Herrera has standing to challenge the Starks
judgment precisely because he is an “aggrieved employee” for the
purposes of PAGA.




                                   2
       To arrive at the conclusion that the LWDA waived an
appellate challenge to the Starks judgment, the majority
impliedly finds “an unconditional, voluntary, and absolute
acceptance of the fruits of the judgment’ ” by the LWDA. (See
H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96
Cal.App.4th 1357, 1363 (H. D. Arnaiz), italics added [noting this
is a necessary element of a waiver]; see also maj. opn. ante, at
p. 23 [“When the LWDA received the settlement agreement and
cashed the check for its portion of the proceeds pursuant to the
Starks judgment, it thereby accepted the benefits of the judgment
and, so far as our record shows, did so unconditionally and
without objection.”].) Given that the sole basis of the Starks
judgment is the settlement agreement, the implication behind the
majority’s reasoning is that the LWDA is deemed to have not only
accepted the Starks judgment, but also to have accepted
the terms of the underlying settlement agreement. (See
14 Cal.Jur.3d (2020) Contracts, § 93, p. 304 [“[T]he acceptance of
the consideration offered with a proposal is an acceptance of the
proposal, and a voluntary acceptance of the benefit of a
transaction is equivalent to consent to all the obligations arising
from it, so far as the facts are known or ought to be known to the
person accepting,” fns. omitted].) Although the majority eschews
implying “that the LWDA is bound by the terms of the settlement
agreement between Starks and Vortex,” (see maj. opn. ante,
at pp. 23–24, fn. 9), the Starks judgment is wholly derivative
of that settlement. Thus, I cannot agree that the LWDA can be
deemed to have accepted one but not the other.
       How will trial and appellate courts apply the holding that
the LWDA—which is “ ‘always the real party in interest’ ” in a




                                   3
PAGA action3—is deemed to accept the terms of a settlement
agreement merely by cashing a check? The answer is simple:
Once a trial or appellate court has proof that the LWDA cashed
the settlement check, that is the end of each respective court’s
review. The majority signals this is the appropriate
interpretation of its opinion by stating that “the state is bound by
the Starks judgment pursuant to its acceptance of the benefits of
that judgment.” (See maj. opn. ante, at pp. 30–31, italics added.)
       Whether one analogizes PAGA settlements to qui tam
actions or class actions, (see post, part II.C), there is virtually no
precedent limiting a trial or appellate court’s review of
settlements that are binding on absent persons essentially to
putting on a green eyeshade and looking for a cancelled check.
The impact of today’s holding is to leave in place a settlement
that awards $630,000 to Starks’s lawyers for attorney fees and
costs without any breakdown of tasks performed by each of
Starks’s several attorneys or a separate line item for costs,
$10,000 to Starks as a service award, $18,750 to the LWDA, and
a little more than $30 to each aggrieved employee, even though
the trial court did not know how many aggrieved employees there
were when it approved the settlement. Under today’s decision,
we would be unable to review the fairness of a settlement
agreement equally lacking in supporting documentation and
awarding even less to the LWDA and aggrieved employees, so
long as the LWDA received a copy of the settlement and cashed
the check.

      3 (See Kim v. Reins International California, Inc. (2020)
9 Cal.5th 73, 81 (Kim); see also id. at p. 86 [“[A] PAGA claim is an
enforcement action between the LWDA and the employer, with
the PAGA plaintiff acting on behalf of the government.”].)




                                     4
       I do not mean to imply that the LWDA’s cashing of a
settlement check without objection is irrelevant to a trial or
appellate court’s review of the settlement. A trial or appellate
court may take the agency’s lack of objection into consideration in
assessing the fairness of the parties’ proposal. Further, the trial
court may solicit an amicus brief from the LWDA if the court’s
independent review reveals concerns regarding one or more of the
settlement’s terms.4 On the other hand, holding that the
agency’s cashing of the check precludes further inquiry into the
fairness of the settlement would, for the reasons I discuss below,
contravene the legislative intent underlying PAGA.
       The majority further reasons that “Herrera did not
meaningfully respond” to Starks’s claim that “the LWDA’s
acceptance of the benefits of the judgment [is] a bar” to his
appeal. (See maj. opn. ante, at p. 25.) The majority states that
“[t]he closest Herrera comes to addressing this point is in his
argument . . . [that]: ‘Given the statute’s plain and unambiguous
language, neither LWDA’s check cashing nor an aggrieved
employee’s acceptance of money, can substitute for the review
and order approving a PAGA settlement.’ ” (Ibid.) The majority
rejects this argument as irrelevant on the ground that “the trial
court’s statutory obligation to ‘review and approve any settlement
of any civil action filed’ under PAGA [(§ 2699, subd. (l)(2))] is
independent of the LWDA’s acceptance of the judgment
proceeds.” (See maj. opn. ante, at p. 25.)



      4 In fact, in the instant appeal, we took judicial notice of
two such amici briefs in other cases in which the trial courts
there solicited the LWDA’s input in reviewing the PAGA
settlements before them.




                                     5
       Yet, the majority has concluded that the state is “bound by
the Starks judgment” simply because the state cashed a
settlement check. (See maj. opn. ante, at pp. 30–31.) Thus,
Herrera’s argument was responsive to Starks’s invocation of the
waiver doctrine because he pointed out the logical consequence of
finding a waiver under these facts, that is, as set forth above,
trial and appellate courts in future cases would be foreclosed
from independently reviewing the substance of a PAGA
settlement so long as the LWDA cashed its settlement check.
       Today’s decision most likely will have unintended
consequences. I acknowledge that the settlement agreement in
Starks provided that the settlement funds would be disbursed to
the LWDA within 15 days after the trial court approved the
settlement. But, contrary to the majority’s analysis, a settlement
that would allow the LWDA to cash its check before trial court
approval is not merely hypothetical. There is little downside for
parties to agree to such a settlement. If the LWDA actually
reviews that proposed settlement and determines it is unfair,5
the agency would simply return the funds to avoid being bound
by the agreement. If the LWDA instead retains the funds and
does not object, then under the majority’s reasoning, the trial
court must approve the settlement because the sole real party in

      5   As set forth post, historically, the LWDA has been too
under-resourced to review all PAGA settlements, and the agency
relies on PAGA settlement checks to fund its own operations.
(See § 2699, subd. (i) [providing that 75 percent of the civil
penalties recovered by PAGA plaintiffs shall be paid to the
LWDA “for enforcement of labor laws, including the
administration of this part, and for education of employers and
employees about their rights and responsibilities under this
code . . . .”].)




                                   6
interest has agreed to—and is bound by—the agreement, and the
employer will thereafter pay the aggrieved employees their
collective 25 percent share of the civil penalties. (See § 2699,
subd. (i) [“[C]ivil penalties recovered by aggrieved employees
shall be distributed as follows . . . 25 percent to the aggrieved
employees.”].)
       I respectfully maintain that the majority’s reasoning relies
on an assumption that has not been supported. The assertion
that the LWDA’s cashing of a settlement check constitutes
acceptance of the settlement agreement’s terms presupposes that
the LWDA has sufficient resources to be the arbiter of fairness of
PAGA settlements. That supposition also ignores the legislative
history as to why PAGA imbued private parties with a cause of
action in the first place. (See Kim, supra, 9 Cal.5th at p. 83 [“ ‘In
construing a statute, our task is to ascertain the intent of the
Legislature so as to effectuate the purpose of the enactment,’ ”
italics added].)
       Our Supreme Court has observed that PAGA is intended to
further the “state’s interests in enforcing the Labor Code and in
receiving the proceeds of civil penalties used to deter violations.”
(See Iskanian v. CLS Transportation Los Angeles, LLC (2014)
59 Cal.4th 348, 383 (Iskanian).) Prior to PAGA’s enactment,
those interests were not being adequately served because there
was a “shortage of government resources to pursue enforcement”
of Labor Code violations. (See id. at p. 379.) Indeed, in enacting
PAGA, the Legislature declared that “[s]taffing levels for state
labor law enforcement agencies have, in general, declined over
the last decade and are likely to fail to keep up with the growth of
the labor market in the future.” (Stats. 2003, ch. 906, § 1(c).)
Consequently, “[a]s to criminal violations, local prosecutors often




                                     7
directed their resources to other priorities,” and “[t]he Labor
Commissioner and other agencies were likewise hampered in
their enforcement of civil penalties by inadequate funding and
staffing constraints.” (See Kim, supra, 9 Cal.5th at p. 81.) To
overcome that obstacle, the Legislature created a statutory
scheme intended to “augment the limited enforcement capability
of the [LWDA] by empowering employees to enforce the Labor
Code as representatives of the [LWDA].” (See Iskanian, supra,
59 Cal.4th at p. 383.)
       Data from the Legislative Analyst’s Office strongly suggest
that the LWDA lacks the resources meaningfully to review
proposed PAGA settlements. The Legislative Analyst’s Office
reported that in 2014, the LWDA had only one employee for
reviewing notices employees sent to the agency before filing
PAGA suits (PAGA notices).6 (See Legis. Analyst, The 2016–
17 Budget: Labor Code Private Attorneys General Act Resources
(2016–17 Budget) p. 3 at
<https://lao.ca.gov/Publications/Report/3403> [as of
July 31, 2020], archived at <https://perma.cc/7Z49-HUVM>.)
This employee was able to perform a “high-level review” of less
than half of 6,307 PAGA notices that employees filed in 2014.

      6 “Before bringing a civil action for statutory penalties
[under PAGA], an employee must . . . . give written notice of the
alleged Labor Code violation to both the employer and the
[LWDA][ ] . . . . If the agency notifies the employee and the
employer that it does not intend to investigate[,] . . . or if the
agency fails to respond [to the PAGA notice] within [a particular
statutory timeframe], the employee may then bring a civil action
against the employer.” (See Arias v. Superior Court (2009)
46 Cal.4th 969, 981 (Arias).)




                                    8
(See ibid.) “In 2014, less than half of the PAGA notices . . . ha[d]
been reviewed or investigated since PAGA was implemented.”
(See id. at pp. 3–4.)
       For the 2016–2017 fiscal year, the Governor sought funding
for 10 new employees to review PAGA notices and proposed
settlements of PAGA claims.7 (See 2016–17 Budget, supra,
at pp. 4–6.) The Governor anticipated that these 10 new
positions would allow the LWDA, on an annual basis, to review
about 900 additional PAGA notices and investigate 45 additional
claims that it could not otherwise have investigated without more
personnel. (See id. at p. 4.) The Legislative Analyst’s Office
recognized that “[p]roviding the additional funding and positions
in the Governor’s proposal likely would not be sufficient to review
and investigate even a majority of PAGA notices, but would
greatly expand LWDA’s ability to meet the intent of the PAGA
legislation.” (See id. at pp. 6–7.)
       The Legislature ultimately approved the Governor’s
request for funding these 10 positions. (See Legis. Analyst, The
2019–20 Budget: California Spending Plan (2019–20 Budget)
pp. 7–8 at <https://lao.ca.gov/Publications/Report/4101#labor-
programs> [as of August 3, 2020], archived at
<https://perma.cc/76KR-QY4T>.) Further, in 2019, the
Legislature authorized the creation of an additional twelve
positions to “allow the Labor Commissioner’s Office to investigate
additional PAGA notices” and “review additional proposed
settlements that result from private PAGA litigation.” (See ibid.)


      7  In June 2016, PAGA was amended to require the parties
to serve their proposed settlements on the LWDA. (See Stats.
2016, ch. 31, § 189, codified as Lab. Code, § 2699, subd. (l)(2).)




                                    9
       The Legislative Analyst’s Office publications referenced
herein demonstrate that although the Legislature has in recent
years provided more funding to the LWDA to review and
investigate PAGA notices and proposed settlements, the size of
the team devoted to these endeavors still is small relative to the
demand. That demand will increase as more PAGA claims will
be filed in light of recent arbitration and class action precedents8
that have made PAGA the favored vehicle for enforcing the wage
and hour laws.9


      8  The United States Supreme Court’s cases upholding
arbitration clauses and class action waivers under the Federal
Arbitration Act (FAA) have substantially limited resort to courts
as forums for wage and hour claims. (See, e.g., Iskanian, supra,
59 Cal.4th at pp. 387–388 [“Th[e] pursuit of victim-specific relief
by a party to an arbitration agreement on behalf of other parties
to an arbitration agreement would be tantamount to a private
class action . . . . Under [AT&T Mobility LLC v.] Concepcion
[(2011) 563 U.S. 333], such an action could not be maintained in
the face of a class waiver.”].) A claim brought under PAGA,
however, is typically not subject to the FAA’s restrictions
“because it is not a dispute between an employer and an
employee arising out of their contractual relationship. It is a
dispute between an employer and the state,” which is usually not
a party to employers’ arbitration agreements. (See Iskanian,
at p. 386, italics omitted; see also Bautista v. Fantasy Activewear,
Inc. (2020) 52 Cal.App.5th 650, 655 [“[A]rbitration agreements
entered into before a[n employee-]plaintiff has been deputized for
purposes of a PAGA representative action is [sic] not enforceable
for purposes of the PAGA representative action”].)
      9 It appears there is not much publicly available data
regarding the LWDA’s operations vis-à-vis PAGA. The
Legislative Analyst’s Office, however, reported that from 2010 to




                                    10
      The majority cites two common-law doctrines to buttress its
conclusion that the LWDA’s cashing of the Starks settlement
check precludes Herrera from challenging the fairness of the
Starks settlement: (1) jurisprudence on the waiver of appellate
rights; and (2) general agency principles. (See 9 Witkin, Cal.
Procedure (5th ed. 2008) Appeal, § 67, pp. 127–128 [indicating
that the waiver doctrine was developed through a long line of
California cases]; maj. opn. ante, at p. 24 [relying in part on the
Restatement (Third) of Agency to hold that the LWDA’s waiver is
imputed to Herrera].) For the reasons discussed above,
importing these common-law doctrines into PAGA would defeat
the manifest purpose of PAGA—ensuring effective enforcement of
the Labor Code through employee-initiated actions to supplement
enforcement by an under-resourced LWDA.
      The majority’s analysis thus contravenes the maxim of
cessante ratione legis cessat lex ipsa, which provides that judicial
alteration of a common-law rule is appropriate when, “because of
statutory change, the reason for the rule no longer holds . . . .”
(See Scalia & Garner, Reading Law (2012) pp. 220, 319; Katz v.
Walkinshaw (1903) 141 Cal. 116, 123–124 [“ ‘ “Cessante ratione,
cessat ipsa lex.” This means that no law can survive the reasons
on which it is founded. . . . If the reasons on which a law rests
are overborne by opposing reasons, which, in the progress of
society, gain controlling force, the old law, though still good as an


2014, the number of PAGA notices filed with the agency
increased from 4,430 to 6,307 notices. (See 2016–17 Budget,
supra, at p. 3.) The Legislative Analyst’s Office further reported
that from 2014 to 2015, the LWDA received just under
600 payments for PAGA claims (i.e., close to 10 percent of the
PAGA notices filed in 2014). (See ibid.)




                                    11
abstract principle, and good in its application to some
circumstances, must cease to apply or to be a controlling principle
to the new circumstances.’ ”].) It follows that the aforementioned
common-law doctrines are inapplicable given the terms of—and
policies served by—PAGA, and that the LWDA’s cashing of the
settlement check alone should not bar Herrera from contesting
the terms of the settlement agreement.
       The majority counters that “[t]he rule that one who accepts
the benefits of a judgment cannot attack that judgment, however,
applies to governments, as well as private litigants [citation], and
to appellants who are ‘forced’ to accept the proceeds due to their
‘financial situation’ [citation].” (Maj. opn. ante, at p. 25, fn. 10.)
The majority correctly observes that the waiver doctrine has, in
some cases, been applied to under-resourced private parties and
governmental entities. It just does not apply here where to do so
would be inconsistent with the legislative intent behind PAGA.
This is especially true given “the unique nature of a PAGA claim
as a qui tam type action.”10 (See Correia v. NB Baker Electric,
Inc. (2019) 32 Cal.App.5th 602, 620).




      10  Neither of the cases the majority cites is a qui tam type
action. (See San Bernardino v. Riverside (1902) 135 Cal. 618, 619
[the counties themselves were the only litigants to the action];
Bulpitt v. Bulpitt (1951) 107 Cal.App.2d 550, 551 [divorce
action].)




                                    12
II.   Herrera Had Standing to Challenge the Fairness of
      the Starks Settlement and He Did Not Waive the
      Right to Do So; Without Having Key Information, the
      Trial Court Erred in Approving a Settlement Having
      the Earmarks of Unfairness
       Vortex and Starks raise two additional arguments they
contend either would support dismissal of Herrera’s appeal from
the order denying his motion to vacate the Starks judgment, or
support affirming that order. First, they contend Herrera waived
the right to appeal that ruling, or lacked standing to do so,
because the settlement administrator sent a check to Herrera
that was later deposited. Starks also argues that Herrera lacks
appellate standing to challenge the Starks judgment because he
is not a “party aggrieved” for the purposes of Code of Civil
Procedure section 902. Second, the Starks parties contend the
information they provided to the trial court supported its
approval of that settlement.
       Because I respectfully submit that neither argument is
well-founded, the trial court should have vacated the Starks
judgment. Further, as discussed post, part III, because the order
granting summary judgment against Herrera in his own case
depended on the validity of the Starks judgment and on Vortex’s
erroneous assertion that Herrera lacked standing to bring his
PAGA claims, I would reverse the judgment entered in Herrera
as well.




                                  13
      A.    Herrera Has Standing Under Kim v. Reins
            Despite the Cashing of the Settlement Check
            and He Is a “Party Aggrieved” for the Purposes
            of Appellate Standing
       PAGA authorizes an “aggrieved employee” to bring a PAGA
claim for Labor Code violations, (see Arias, supra, 46 Cal.4th at
p. 980), and defines that operative term as “any person who was
employed by the alleged violator and against whom one or more
of the alleged violations was committed.” (See § 2699, subd. (c).)
With regard to its challenge to Herrera’s standing, Vortex claims
Herrera lost his status as an “aggrieved employee” for purposes of
bringing a PAGA claim when he purportedly deposited a check
for his portion of the proceeds of the settlement agreement in
Starks.11 Vortex’s argument rests on the assumption that to
remain an aggrieved employee, Herrera cannot have previously
received any relief for the Labor Code violations he allegedly
suffered.



      11 As set forth in part II.B, post, in response to Starks’s
and Vortex’s motion to dismiss Herrera’s appeal of orders entered
in the Starks action, Herrera offered uncontroverted evidence
showing that he did not actually deposit that check. Instead, the
uncontroverted evidence was that unbeknownst to him, his wife
deposited the check, which was not endorsed. The
uncontroverted evidence also demonstrated that in his
declaration offered in opposition to the motion to dismiss the
appeal, Herrera has, in effect, offered to return the approximately
$33 in settlement funds if doing so were necessary to prosecuting
his appeal. For the reasons discussed in this section, even
assuming arguendo that Herrera did personally deposit the
check, he would still have standing to maintain suit under PAGA.




                                   14
       Our Supreme Court’s recent decision in Kim disposes of
Vortex’s argument. In Kim, the plaintiff-employee brought suit
against his employer for individual, class, and PAGA claims for
wage and hour violations, all of which arose out of his employer’s
decision to classify him as exempt from state overtime
requirements. (Kim, supra, 9 Cal.5th at p. 82.) The trial court
granted the employer’s motion to compel arbitration of the
plaintiff’s individual claims, granted the employer’s motion to
dismiss the class claims, and stayed the PAGA claim and claim
for injunctive relief under Business and Professions Code
section 17200. (Ibid.) The employee thereafter settled and
dismissed his individual claims, leaving only the PAGA claim for
resolution. (Ibid.) Subsequently, the employer moved for
summary adjudication on the PAGA claim, arguing the plaintiff
was no longer an “ ‘aggrieved employee’ ” because he settled and
dismissed his individual causes of action. (See ibid.) The trial
court agreed, granted the motion, and later dismissed the action
in its entirety. (Id. at pp. 82–83 & fn. 3.)
       The Court of Appeal affirmed the trial court’s judgment,
and the Supreme Court reversed, holding that “employees [do
not] lose standing to pursue a claim under [PAGA] if they settle
and dismiss their individual claims for Labor Code violations.”
(See Kim, supra, 9 Cal.5th at pp. 80–89, 93.) Of particular
relevance here, the high court rejected the employer’s contention
that the employee was “no longer an ‘aggrieved employee’
because he accepted compensation for his injury,” reasoning that
“[t]he Legislature defined PAGA standing in terms of violations,
not injury.” (See id. at p. 84.)
       The Kim Court explained that the employee in that case
“became an aggrieved employee, and had PAGA standing, when




                                   15
one or more Labor Code violations were committed against
him. (See § 2699(c).) Settlement did not nullify these violations”
because “[t]he remedy for a Labor Code violation, through
settlement or other means, is distinct from the fact of the
violation itself.” (See Kim, supra, 9 Cal.5th at p. 84.) Put
differently, “[t]he plain language of section 2699(c) has only two
requirements for PAGA standing”—the plaintiff is someone who
“ ‘was employed by the alleged violator’ and ‘against whom one or
more of the alleged violations was committed’ ”; the statute does
not require a plaintiff to “claim that any economic injury resulted
from the alleged violations.”12 (See Kim, at pp. 83–84.)
       Vortex conceded below that it employed Herrera as a
service technician from July 10, 2015 to November 11, 2015.
Herrera alleged in his complaint that he suffered certain Labor
Code violations during his employment at Vortex. In fact, Vortex
admitted in its appellate briefing that before the settlement
check was sent to Herrera, “[he] was a non-party ‘aggrieved
employee.’ ” In sum, Herrera was an “aggrieved employee” under
PAGA, regardless of whether “he accepted compensation for his




      12   The Supreme Court also noted that imposing an
unredressed injury requirement “would be problematic for PAGA
suits to enforce the many Labor Code statutes that do not create
a private right to sue.” (See Kim, supra, 9 Cal.5th at p. 89.) The
high court further reasoned “[n]othing in the legislative history
suggests the Legislature intended to make PAGA standing
dependent on the existence of an unredressed injury . . . .” (See
id. at p. 90.)




                                   16
injury,” (see Kim, supra, 9 Cal.5th at p. 84),13 and thus had
standing to challenge the fairness of the Starks settlement.
       The majority observes that Kim supports its reasoning
because Kim recognizes that PAGA suits are representative
actions. I acknowledge that Kim, as well as the other precedents
from our high court, recognize this principle. Where I part
company with my colleagues’ interpretation of Kim is that they
appear to conflate two doctrinally separate concepts: waiver and
PAGA standing. (See maj. opn. ante, at pp. 27–28.) Specifically,
after concluding that “neither Herrera nor any other aggrieved
employee has standing, as aggrieved employees, to challenge the

     13   In its supplemental briefing addressing the impact of
the Kim decision on the appeals before us, Vortex asserts Kim is
distinguishable because: (1) “neither Herrera nor Starks
asserted any individual claims against Vortex” (i.e., non-PAGA
claims for Labor Code violations); (2) the settlement agreement
from Starks “encompassed all of the alleged Labor Code
violations asserted by Herrera, all of the aggrieved employees
alleged by Herrera, and the entire time period alleged by
Herrera,” and excluded “any individual claims of Starks or any
other aggrieved employee”; (3) the LWDA did not object to the
settlement agreement, which it had been provided prior to the
approval hearing; (4) the LWDA cashed its settlement check;
(5) “Herrera cashed his settlement check for his share of the
PAGA penalties”; and (6) the LWDA, Herrera, and the other
aggrieved employees never returned the settlement funds to
Vortex or placed that money into an escrow account. These
distinctions have no bearing on whether Herrera satisfied the
only two elements a plaintiff must meet in order to bring a PAGA
representative claim—that he was employed by the alleged
violator and was subjected to one or more Labor Code violations.
(See Kim, supra, 9 Cal.5th at pp. 83–84.) As set forth herein,
Herrera satisfied both those elements.




                                  17
Starks judgment” (id. at p. 27), the majority concludes: “Nothing
in Kim suggests that one aggrieved employee can attack a
judgment in another aggrieved employee’s PAGA action after the
LWDA has accepted the benefits of that judgment.” (See id., at
p. 28, italics added.) Kim, however, did not address common-law
waiver. Kim analyzed the effect of being already compensated for
Labor Code violations on an employee’s standing to bring a PAGA
claim, and concluded that the employee still had standing to do so
because he was defendant’s employee and suffered a Labor Code
violation. (See Kim, supra, 9 Cal.5th at pp. 80, 84 [“Do employees
lose standing to pursue a claim under [PAGA] if they settle and
dismiss their individual claims for Labor Code violations? We
conclude the answer is no. * * * Kim was employed by Reins and
alleged that he personally suffered at least one Labor Code
violation on which the PAGA claim is based. Kim is thus an
‘aggrieved employee’ with standing to pursue penalties on the
state’s behalf.”].) Herrera satisfied these two elements of PAGA
standing.
       Starks makes a separate standing argument: Herrera
lacks appellate standing to challenge the Starks judgment
because Herrera was not a party of record in that action and he
is not personally “aggrieved” by that judgment. (See also Code
Civ. Proc., § 902 [“Any party aggrieved may appeal in the cases
prescribed in this title.”].) The first argument fails because “[a]
person not a party to the action as originally commenced or tried
may make himself or herself party to the record, subsequent to
judgment in the action, by moving to vacate,” as Herrera did
here. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 26,
p. 89.)




                                   18
      The second argument also fails. Starks does not dispute
that PAGA authorized Herrera—as it did Starks—to represent
the LWDA regarding Labor Code claims virtually identical to
those raised by Starks or that the Starks judgment, if left intact,
would preclude Herrera’s PAGA representative action. (See
Arias, supra, 46 Cal.4th at p. 985 [“[T]he judgment in [a
representative action brought by an aggrieved employee under
PAGA] is binding not only on the named employee plaintiff but
also on government agencies and any aggrieved employee not a
party to the proceeding.”].) Accordingly, Herrera is “aggrieved”
for the purposes of Code of Civil Procedure section 902. (See
In re Carissa G. (1999) 76 Cal.App.4th 731, 736 [“Generally, ‘[a]
person who would be bound by the doctrine of res judicata,
whether or not a party of record, is a party sufficiently aggrieved
to entitle him to appeal. [Citations.]’ ”].)

      B.    The Evidence Does Not Establish That Herrera
            Clearly and Unmistakably Waived the Right to
            Pursue His PAGA Claims
       Starks contends Herrera waived his right to appeal the
orders denying Herrera’s motions in Starks by “accept[ing] the
benefits of the judgment” entered therein. Starks asserts that
“just one day after [Herrera’s] motions to intervene and vacate
the judgment were denied, his wife deposited his share of the
proceeds from the judgment into his bank account, and he has
neither returned the money nor placed the money in a trust
account to this day.” Starks further maintains that “even when
his acceptance of the proceeds of the judgment were [sic] called
out” in Vortex’s motion for summary judgment filed in Herrera,
“he took no action that did anything to undermine the conclusion




                                    19
that he was accepting the proceeds of the judgment.”14 The
parties do not dispute that the amount of the check in question
was $33.30.
       The evidence does not support a finding that Mrs. Herrera’s
deposit of the settlement check sent to her husband, which
was not endorsed, effects a waiver of her husband’s appeal from
the denial of his motion to vacate the judgment in Starks.
Mrs. Herrera declares that when she deposited the check in her
husband’s bank account via an automatic teller machine, she was
unaware of the Starks action and had not informed her husband
of the existence of the check.15 Mr. Herrera also attests that he
would not have deposited the check had he personally received it.
Starks does not argue that Mrs. Herrera’s conduct may be
imputed to her husband simply because they are married. Thus,
when Mrs. Herrera deposited the check, her husband did not

      14 Before the instant appeals were fully briefed, Starks
asserted this waiver theory in a motion to dismiss Herrera’s
appeal of the Starks action, and also offered certain declarations
to support his motion. Vortex later joined Starks’s motion.
Herrera filed an opposition, along with his own and his wife’s
declarations. Presiding Justice Rothschild summarily denied the
motion to dismiss.
      15  We may consider evidence that was not included in
the appellate record because Starks’s motion to dismiss
relied upon extrinsic evidence. (See H. D. Arnaiz, supra,
96 Cal.App.4th at pp. 1361–1364 & fn. 2 [considering
declarations offered by appellant when determining whether
the party waived its appellate rights]; cf. Cal. Rules of Court,
rule 8.54(a)(2) [providing that motions to dismiss an appeal may
be “based on matters outside the record,” including “declarations
or other supporting evidence”].)




                                   20
voluntarily accept the benefits of the judgment. (See H. D.
Arnaiz, supra, 96 Cal.App.4th at p. 1362.)
        Herrera’s mere retention of the proceeds of the check in his
bank account does not amount to a clear and unmistakable
acceptance of the fruits of the judgment, which is a sine qua non
to a finding of waiver. (See H. D. Arnaiz, supra, 96 Cal.App.4th
at p. 1364.) Herrera declares that he has not dissipated the
proceeds of the check, but has instead chosen to retain the funds
in his personal bank account. He has expressed his willingness
to return the funds to Vortex if doing so were necessary to pursue
his appeal in Starks. Although it would have been better practice
to return the funds,16 the mere fact that Herrera retained the
funds in his personal bank account does not support a finding of
waiver. (See H. D. Arnaiz, supra, 96 Cal.App.4th at p. 1363
[“Courts have found no waiver of the right to appeal where the
benefits of the judgment are retained, but not used by the
appellant.”].)
        Starks’s evidence does not controvert Mr. and Mrs.
Herrera’s declarations, and therefore cannot support a finding
that Mr. Herrera waived his appellate rights by
“ ‘ “ ‘unconditional[ly], voluntar[ily], and absolute[ly]’ ”
accept[ing] . . . the fruits of the judgment’ ” or “ ‘demonstrat[ing] a


      16 Herrera’s counsel erroneously contends that, “[i]f
Herrera prevails on appeal, Herrera would likely receive more in
penalties,” thus suggesting that Herrera would still be entitled to
the $33.30 even if we reversed the trial court’s order denying his
motion to vacate the Starks judgment. Herrera’s right to the
settlement proceeds stems from the Starks judgment and the
underlying settlement agreement. Thus, if that judgment were
vacated, Herrera would not be able to keep the funds.




                                     21
clear and unmistakable acquiescence in . . . the fruits of ’ ” it.
(See H. D. Arnaiz, supra, 96 Cal.App.4th at p. 1364.) Starks’s
evidence merely establishes that the settlement administrator
sent Herrera the settlement check; someone deposited the check
even though it had not been endorsed; and Herrera did not
contact the settlement administrator, Vortex’s counsel, or
Starks’s counsel to discuss the circumstances under which (a) the
check had been deposited or (b) the proceeds were being retained
by him.17

      C.    The Trial Court Did Not Have the Information
            Necessary to Review and Approve the Starks
            Settlement
      In PAGA, the Legislature has given trial courts a
gatekeeping function, that is, to review and approve PAGA
settlements. As noted at the outset of this dissent, there is no
other entity or person with either the incentive or the staffing

      17    Starks’s counsel attests, “I understand that Adolfo
Herrera deposited the check sent to him pursuant to the
settlement and judgment in Starks v. Vortex Industries, Inc.,”
and the settlement administrator declares that “[n]either
Mr. Herrera, nor his counsel, indicated to [the administrator]
that the proceeds deposited by Herrera were being held in
trust . . . .” (Italics added.) Yet, neither statement controverts
the Herreras’ testimony that Mrs. Herrera actually deposited the
check, nor did Starks’s counsel or the settlement administrator
demonstrate that they had any personal knowledge regarding the
circumstances under which the check was deposited. (See
Evid. Code, § 702 [“[T]he testimony of a witness concerning a
particular matter is inadmissible unless he has personal
knowledge of the matter[.]”].)




                                   22
wherewithal to review a PAGA settlement for fairness, at least at
the trial level. PAGA itself does not set forth a standard
governing a trial court’s review of PAGA settlements. Other
representative and collective actions, however, are instructive.
Courts have applied the fair, adequate, and reasonable test in
reviewing settlements in class actions18 and qui tam cases.19



      18    (See, e.g., Munoz v. BCI Coca-Cola Bottling Co. of
Los Angeles (2010) 186 Cal.App.4th 399, 407 (Munoz) [noting that
an appellate court must assess whether the trial court abused its
discretion in determining that the proposed class action
settlement was “ ‘fair, adequate and reasonable’ ”]; Dunk v. Ford
Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801 & fn. 7
[“ ‘ “ ‘[T]o prevent fraud, collusion or unfairness to the class,
the settlement or dismissal of a class action requires court
approval.’ ” ’ [Citations.] The court must determine the
settlement is fair, adequate, and reasonable.”]; see also O’Connor
v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F.Supp.3d 1110,
1134–1135 [rejecting a proposed class action settlement that
covered a PAGA claim in part because the settlement was not
“fair, adequate and reasonable” in “view of the purposes and
policies of [PAGA]”].)
      19  (See, e.g., U.S. ex rel. Nudelman v. International
Rehabilitation Associates, Inc. (E.D.Pa. May 14, 2004, No. Civ.A.
00-1837) 2004 WL 1091032, at p. *1, fn. 1 [concluding that the
federal False Claims Act’s legislative history demonstrates that
proposed settlements of such actions must be assessed under the
fair, adequate, and reasonable standard “used in reviewing
settlements in class actions”]; U.S. ex rel. Resnick v. Weill
Medical College of Cornell University (S.D.N.Y. Mar. 5, 2009,
No. 04 Civ. 3088) 2009 WL 637137, at p. *2 [following
Nudelman’s approach].)




                                  23
Given the proliferation of PAGA cases in the trial courts,20 the
Legislature should consider whether trial courts need more
guidance for their review and approval of PAGA settlements.
      I respectfully note that the majority’s opinion does not
address key facts about the settlement agreement. They reflect
Starks’s and Vortex’s apparently cozy relationship and the
potential unfairness of the settlement. For example, there is no
discussion of Vortex’s and Starks’s failure to provide the trial
court with information concerning the value of the claims
released by the agreement, including the number of employees
and pay periods covered by a settlement giving Starks a $10,000
service award and all aggrieved employees a little more than $30
each.21 Nor did the Starks parties provide the trial court with


       Admittedly, there is “a split of authority” regarding
whether the fair, adequate, and reasonable standard governing
class actions should also apply to proposed settlements of qui tam
actions brought under the federal False Claims Act. (See United
States ex rel. Shepard v. Grand Junction Regional Airport
Authority (D.Colo. Feb. 27, 2017, No. 13-cv-00736) 2017 WL
749070, at pp. *1–2.) The principal rationale for employing a
more deferential standard to settlements of qui tam actions is
that “ ‘[t]he [c]ourt need not protect the [g]overnment from itself
by closely scrutinizing settlements it negotiates at an arm’s
length with the [d]efendant.’ ” (See id. at p. *3, italics added.)
This rationale is inapposite in the PAGA context because the
LWDA does not typically play a role in negotiating settlements of
PAGA cases.
      20   (See ante, fn. 8.)
      21   (See also Munoz, supra, 186 Cal.App.4th at pp. 407–408
[“ ‘ “ ‘The most important factor [under the fair, adequate, and
reasonable standard] is the strength of the case for plaintiffs on




                                   24
the modicum of information needed for a lodestar calculation
when they championed a settlement awarding Starks’s several
attorneys $630,000 for attorney fees and costs. The trial court
had no breakdown of tasks by hour and attorney performing each
task;22 the award did not even break down fees and costs.
       These additional facts underscore that on its face, the
settlement should have inspired skepticism and further inquiry.
Because the trial court approved the settlement without having
the most fundamental information for evaluating the fairness of
the Starks settlement, the trial court failed to discharge its
statutory obligation to “review and approve” the agreement. (See
§ 2699, subd. (l)(2); see also Williams v. Superior Court (2017)
3 Cal.5th 531, 549 [“PAGA settlements are subject to trial court
review and approval, ensuring that any negotiated resolution is
fair to those affected,” italics added].)
       For all the above reasons, I would reverse the trial court’s
order denying Herrera’s motion to vacate the Starks judgment,
and instruct the trial court to vacate that judgment and conduct
further proceedings to determine whether the settlement
agreement was fair, adequate, and reasonable.


the merits, balanced against the amount offered in settlement.’ ” ’
[Citation.] While the court ‘ “must stop short of the detailed and
thorough investigation that it would undertake if it were actually
trying the case,” ’ it ‘ “must eschew any rubber stamp approval in
favor of an independent evaluation.” ’ ”].)
      22  (See also Concepcion v. Amscan Holdings, Inc. (2014)
223 Cal.App.4th 1309, 1325 [“[C]ounsel [has] the burden of
proving the reasonable number of hours they devoted to the
litigation, whether through declarations or redacted or
unredacted timesheets or billing records.”].)




                                   25
III.   Because the Starks Judgment Should Be Vacated, It
       Is Not Res Judicata in Herrera, and Neither the
       LWDA’s Cashing of the Starks Settlement Check Nor
       the Cashing of Herrera’s Settlement Check Supports
       Granting Summary Judgment in the Herrera Case
      Vortex moved for summary judgment in the Herrera action
on three grounds: (1) The Starks judgment “bars” Herrera’s
lawsuit; (2) “the doctrine of res judicata bars Herrera’s lawsuit”;
and (3) “[Herrera] does not have standing to prosecute this
lawsuit.” In granting that motion, the trial court adopted these
three arguments, and also held that the LWDA accepted the
terms of the settlement by cashing its check.
      The majority upholds the entry of summary judgment in
Herrera essentially for two reasons: (1) The trial court’s
premature invocation of the res judicata doctrine was harmless
because the majority rejects Herrera’s challenges to the Starks
judgment; and (2) Herrera could not maintain his own PAGA suit
because he and the LWDA are bound by the Starks judgment.
For the reasons discussed ante, part II.C, the trial court erred in
denying Herrera’s motion to vacate the Starks judgment. I also
disagree with the conclusion that the LWDA’s failure to challenge
the settlement agreement signifies that it—and, by extension,
Herrera—should be bound by the Starks judgment and the
underlying agreement. (See ante, part I.) Based on the
reasoning of this dissent, three out of four of the trial court’s
bases for granting summary judgment, and all of the majority
opinion’s reasons for affirming that ruling, fail. (Cf. Romadka v.
Hoge (1991) 232 Cal.App.3d 1231, 1233–1234, 1237–1238
[reversing an order dismissing an action on res judicata grounds



                                   26
because the trial court in the prior action erred in denying a
motion to vacate the underlying judgment therein].) The sole
remaining ground for the trial court’s grant of Vortex’s summary
judgment motion is unpersuasive because as previously detailed,
even if Herrera himself had cashed the check, that would not
deprive him of standing to pursue his PAGA claims. (See ante,
part II.A.) For all the above reasons, I would reverse the
judgment entered in Herrera and remand for further proceedings.

IV.   Herrera’s Motion to Intervene in Starks Was Too
      Late
       I concur in affirming the trial court’s denial of Herrera’s
motion to intervene on the basis of untimeliness. I do so because
Herrera’s counsel was present when Vortex’s attorney informed
the trial court during a September 27, 2017 status conference
that the parties in Starks were engaged in “ongoing” settlement
discussions. Herrera did not seek to intervene at that time,
despite the potential res judicata consequences if those
discussions produced a settlement. Indeed, the trial court
intimated at that status conference that a settlement of the
Starks action would have a preclusive effect on Herrera’s claims.
I agree with the majority that as of the date of the
September 27, 2017 status conference, the Starks action posed a
measurable risk to Herrera’s interests such that he should have
moved to intervene at or about that time, and not 47 days later.23

      23 My concurrence in the majority’s holding that Herrera’s
motion to intervene was untimely does not impact the timeliness
of Herrera’s motion to vacate the Starks judgment. Neither
Starks nor Vortex contests the timeliness of Herrera’s motion to
vacate the Starks judgment. Nor is it apparent that any such




                                  27
       I disagree, however, with the majority’s suggestion that the
administrative obstacles attendant with reversing the trial
court’s approval of the settlement are solely attributable to
Herrera’s “lack of diligence.” (See maj. opn. ante, at p. 17.) The
record does not support that conclusion, given the Starks parties
sought to keep Herrera in the dark until judgment was entered
and the settlement funds were already being disbursed. The
majority acknowledges that: The parties in Starks sought
approval on an ex parte basis with no notice to Herrera’s counsel;
the trial court approved of Starks’s and Vortex’s request not to
inform Herrera of the settlement; and the settlement agreement
required that disbursements of settlement funds be made to
(a) the LWDA, Starks, and his attorneys no later than 15 days
after the issuance of the trial court’s approval order; and (b) the


challenge would have been meritorious given that Herrera filed
his motion to vacate within 180 days of the entry of the judgment
and he was never served with a copy of entry of judgment in
Starks. (See Code Civ. Proc., § 663a, subd. (a)(2) [“A party
intending to make a motion to set aside and vacate a judgment,
as described in [Code of Civil Procedure] Section 663, shall file
with the clerk and serve upon the adverse party a notice of his or
her intention . . . [¶] . . . [¶] [w]ithin 15 days of the date of mailing
of notice of entry of judgment by the clerk of the court[,] . . . or
service upon him or her by any party of written notice of entry of
judgment, or within 180 days after the entry of judgment,
whichever is earliest.”]; 4 Thomas & Moore, Cal. Civ. Prac. Proc.
(2007) § 29:48, p. 29-46 [“The 15-day time limitation [imposed by
Civil Procedure Code section 663a, subdivision (a)(2)] applies only
to those who are parties of record when the judgment is entered,
and not to persons who become parties by filing a motion to
vacate.”].)




                                      28
aggrieved employees for their share of the PAGA and section 558
penalties no later than 45 days after the court’s approval of the
settlement, irrespective of whether there would be an appeal or
any other challenge to the forthcoming judgment. The reasonable
conclusion to be drawn from the record is that the trial court,
Vortex, and Starks sought to prevent Herrera from raising any
objection to the settlement agreement before it was fully
performed—not, as the majority suggests, that Herrera was lying
in wait to “ ‘knock the props out from’ the parties’ reliance on the
agreement.” (See maj. opn. ante, at p. 16.)
       In closing, the majority correctly notes the logistical
difficulties of undoing a settlement whose proceeds have been
long disbursed. Any such impracticality, however, is of Starks’s
and Vortex’s own making.24




      24   The majority notes that “[t]he only order imposing a
stay in the Herrera action, so far as our record reveals, is dated
September 27, 2017,” and that, “[a]lthough a partial and
temporary discovery stay was ordered in the Starks action prior
to the filing of Herrera’s complaint, it did not apply to the
Herrera action.” (See maj. opn. ante, at p. 6, fn. 3.)
       Although these statements are true, there are other
relevant record citations. The trial court remarked at the
September 27, 2017 hearing that it was “going to continue the
stay [in Herrera] until November 1.” (Italics added.) The
trial court presumably was aware of the procedural posture of its
own case. The trial court’s comments suggest that it may have
stayed the Herrera action at some point prior to the
September 27, 2017 hearing. I therefore dissent from today’s
opinion to the extent it reads the record to conclude that
Herrera’s counsel was remiss in prosecuting the Herrera action.




                                    29
       Although the majority notes that Herrera waited three
weeks to move to intervene in Starks, in fact, Herrera filed an
objection to the settlement on November 1, 2017, a little over one
week after the trial court issued the Starks judgment. The record
is clear that Starks and Vortex knew as of November 1, 2017 that
Herrera was contesting the fairness of the settlement agreement.
Starks and Vortex thus were not only aware of the risk that
Herrera would challenge the settlement agreement after its
approval, but also that an appeal could be filed after at least the
LWDA, Starks, and Starks’s attorneys had received settlement
funds.
       I recognize that the facts and unusual procedural
presentation of this consolidated appeal do not present an elegant
denouement. I agree with my colleagues that settlements should
be encouraged and that allowing someone to upset a settlement
after entry of judgment can produce its own mischief. Under the
circumstances of the consolidated appeal before us however, as
between, on the one hand, the impracticalities of undoing a
settlement approved in derogation of the trial court’s obligation to
review PAGA settlements for fairness and designed to distribute
the bulk of the settlement funds even if an appeal is in the offing,
and, on the other, affirming judgments based on such a
settlement, the former is the just course, impracticality
notwithstanding.




                                           BENDIX, J.




                                   30
