Filed 6/20/22 Gonzalez v. Aluminum Precision Product s CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MAIKEL GONZALEZ,

Plaintiff and Respondent,

v.

ALUMINUM PRECISION PRODUCTS, INC.,

Defendant and Respondent;

JOHN MALDONADO, JR.,

Movant and Appellant. 2d Civil No. B313833 (Super. Ct. No. 56

- 2020

- 00546795

- CU

- OE

- VTA) (Ventura County)

Appellant John Maldonado, Jr.

, appeals from two order s denying him leave to intervene in the Labor Code P rivate
A ttorney s G eneral A ct of 2004 (PAGA) action filed by respondent Maikel Gonzalez a gainst respondent Aluminum Precision
Products , Inc. (

APP )

. (Lab. Code, 1 § 2698 et seq.) He contends he

1 Further unspecified references are to the Labor Code.2

had a right to intervene in the Gonzalez action and the court
erred in approv ing Gonzalez’s settlement without his participation in that action

. We affirm.

FACT UAL AND PROCEDURAL HISTORY
APP employed Maldonado and Gonzalez

. In July 2020,
Maldonado submitted a PAGA notice to the Labor and Workforce Development Agency ( LWDA ) pursuant to section 2699.3 . He alleg ed three violations : (1) a WARN Act 2 violation

, (2) failure to reimburse expenses arising from the use of personal vehicles , in violation of section 2802 , and (3) a n Industrial Welfare Commission wage order No. 1

- 2001 (Cal. Code Regs., tit. 8, § 11010, subd. 15) violation for excessive hea t and work
condition s violations

. In October 2020

, Maldonado filed a complaint in Orange Coun ty Superior Court alleging the same
three PAGA claims against APP

. In November 2020, Gonzalez submitted a PAGA notice to LWDA (§ 2699.3) alleging seven violations , including failure to (1) pay minimum

, straight time , and overtime wages, (2) provide meal periods, ( 3 ) permit rest periods, (4) maintain accurate
records of hours worked an d meal periods taken or missed, (5) reimburse and indemnify expenses that were used “to purchase
work

- related items . . . which includes uniforms ,” in violation of
secti on 2802, (6) pay all wages upon termination, and (7) provide accurate itemized wage statements. Also in November, Gonzalez filed a class action complaint in Ventura County Superior Court , alleging the following
individual and class claims: (1) failure to pay minim um and straight wages, (2) failure to pay overtime wages, (3) failure to

2 The Worker Adjustment and Retraining Notification Act

. ( § 1400 et seq.)3

provide meal periods, (4) failure to permit rest breaks, (5) failure to indemnify business expenses, (6) failure to pay wages upon termination, (7) failure to provide accurat e itemized wage statements, and (8) unfair business practices.
In March 2021
, Gonzale z and APP stipulated to allow Gonzale z to amend his complaint to add a ninth cause of action for civil penalties pursuant to PAG A ; and Gonzalez agreed to
dismiss his individual and class claims. The trial court approved the stipulat ion and deemed the First Amended Complaint filed. Maldonado’s Ex Parte A pplication s and Attempts to I ntervene In May, Maldonado filed an ex parte application to stay the
Gonzal ez action pending a petition for coordination that he filed in the Orange County Superior Court. T he trial court denied the application because he was not a party to the action and there was no “irreparable harm, immediate danger, or any other statutory b asis for granting relief ex parte.” Maldonado filed another ex parte application, seeking leave
to intervene in the Gonzalez action. T he trial court denied the application

. Six days later, Maldonado filed a regular ly notice d motion
to intervene. In July , the trial court denied the motion, stating that it had “already denied this motion on the merits, and moving party is seeking the same relief based on the same documents.”
The court found that the “ motion is an improper motion for
reconsideration which does not comply with Code of Civil Procedure, section 1008.”

Settlement of the Gonzalez Action Meanwhile, i n April and in May , Gonzalez filed two
amended PAGA notices with LWDA and APP . In the amended notices, Gonzalez added new claims previously raised in4

Maldonado’s complaint , including the WARN Act violation and

excess ive heat and work condition s

. Gonzalez and APP reached a settlement of the PAGA
action . The proposed settlement included the new claims raised
in the two amended PAGA notices. Gonzalez moved for approval
of the proposed settlement with the court and sent a copy to LWDA

. LWDA sent a notice to Gonzalez and APP , informing them
that it was investigating the new claims in Gonzale z ’s amended
PAGA notices and that the court could not approve the settlement of any PAGA claims subject to investigation

. LWDA
instructed Gonzalez and APP to limit their settlement to the
claims originally noticed in Gonzalez’s November 2020 PAGA
notice to LWDA. The parties ame nded the proposed settlement to conform to these instructions

. Gonzalez sent the amended
settlement agreement to LWDA. 3
T he trial court granted Gonzale z ’s motion to approve the
PAGA settlement

. The settlement identified “aggrieved employees” as “all per sons currently or formerly employed by [APP] in California during the designated PAGA Period [ July 28, 2019 through Ju ly 14 , 2021 (date of settlement approval) ] .” It was estimated that there were 700 aggrieved employees. Under the settlement, APP agreed to pay a maximum of $300,000 for the “PAGA Penalties ” with at least $177,050.42 available for

3 Maldonado admitte d that settlement of the claims originally raised in the November 2020 PAGA notice would be appropriate. At the May 27 ex parte hearing, Maldonado’s counsel stated that: “[Maldonado is] happy for the $350,000 [that Gonzalez] want [s] to take to apply to t heir claims to go back to November, but only for the claims that they have authority to settle.”5

distribution to the aggr ieved employees and the LWDA. In exchange, APP “shall be entitled to a limited release from the LWDA and each and every Aggrieved Employee, including [Gonzalez].”
The court found “that the terms of the proposed settlement are reasonable” and were “ the product of informed, non

- collusive negotiations conducted at arms’ length by th e Parties.” The court considered APP’s “potential liability, the benefit to the State of California, allocation of settlement proceeds among Aggrieved Employees, and the fact that a settlement represents a compromise of the Parties’ respective positions r ather than the result of a finding of liability at trial.” The court dismissed the underlying action with prejudice and entered “judgment following entry of order granting plaintiff’s motion for an order approving
settlement of claims

. ” 4
DISCUSSION
Mald onado contend s the trial court erred when it denied
him leave to intervene because (1) he had a n interest in the Gonzalez action sufficient for interven tion , and (2) the trial court abused its discretion in denying him leave to intervene

. 5

4 We grant APP’s request for judicial notice with respect to documents labeled Exhibit E

- L. We deny the request regarding all other documents attached to APP’ s request and deny Maldonado’s request for judicial notice in full because those documents are either already in the appellate record or are irrelevant to our resolution of the appeal.

5 To the extent Maldonado raises contentions regarding the May 25 , 20 21
, order denying his request for a stay of the Gonzalez action, an order denying a stay is not an appealable order. ( Brunzell Construction Co. v. Harrah’s Club (19 6 7 ) 2536 Right to Intervene Code of Civil Procedure section 387 allows either mandatory or permissive intervention. For both mandatory and permissive intervention, the nonparty must show a n interest that is the subject of the action in which the nonparty seeks to
intervene. (

Id

. , subd. (d) (1)(B ) & (2) .) The parties dispute whether Maldonado had a n interest in the Gonzalez action sufficient for either mandatory or permissive
interven tion

. O ur Supreme Court has granted review of our colleagues’ opinion in Turrieta v. Lyft, Inc

. (2021) 69 Cal.App.5th 955 ( Turrieta ), review granted Jan. 5, 2022, S271721, to
determine whether a PAGA representative has the right to intervene, object to, o r move to vacate
, a judgment in a related action that purports to settle the claims that the PAGA representative has raised

. In Turrieta

, supra , 69 Cal.App.5th at page 962, the appellants and Turrieta filed separate PAGA actions alleging overlapping claims relating to Lyft ’s misclassifi cation of its
drivers as independent contractors. When Turrieta reach ed a settlement in her action, the appellants moved to intervene

, moved to vacate the judgment approving Turrieta’s settlement

, and later appealed the judgment

. ( Turrieta

, at pp. 964

- 965 , 967 .) Turrieta and Lyft moved to dismiss the appeal, contend ing the appellants lacked standing. ( Id

. at p. 967.)
The Court of A ppeal held that th e appellants lacked standing to challenge the Turrieta settlement. ( Turrieta

, supra , 69 Cal.App.5th at p p. 967

- 968.) The court reasoned that the

Cal.App.2d 764, 772, fn. 3.) Moreover, that order was not specified in the notice of appeal. ( Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.)7

appellants were not “ aggrieved parties ” pursuant to Code of Civil
Procedure section 902

. A party is aggrieved “ ‘only if its “rights or interests are injuriously affected by the judgment .”’ [Citation.]” ( Turrieta

, at p. 971.) The court rejected the appellants ’
contention that they were aggrie ved in their capacity as designated proxies for the state. ( Ibid .) The court reasoned that
in a PAGA action

, the state is the real party in interest , and PAGA representative s who file a claim on behalf of the state do

“ not co n vert the state’s interests i nto their own or render them real parties in interest. ” ( Turrieta

, at p. 972.) Thus, because “it is the state’s rights, and not appellants’, that are affected by a parallel PAGA settlement, appellants are not aggrieved parties with standing to seek to vacate the judgment or appeal.” ( Ibid

. ) Similarly, the court conclud ed the appellants did not have a right to intervene because they could not show they had a “ direct and
immediate interest in the settlement

. ” ( Id

. at p. 977.)
Moniz v. Adecco USA, Inc. ( 2021) 72 Cal.App.5th 56, 72

- 73 ( Moniz ), disagreed with Turrieta and held that “ where two PAGA actions involve overlapping PAGA claims and a settlement of one is purpo rtedly unfair, it follows that the PAGA representative in the separate action may seek to become a party to the settling action and appeal the fairness of the settlement as part of his or
her r o le as an effective advocate for the state.” In so ruling,
Moniz reco gnized that a n employee , deputized pursuant to PAGA
to prosecute their employer’s Labor Code violations on behalf of the state, “ rep resents interests that are sufficiently aggrieved to satisfy Code of Civil Procedure section 902

, a remedial statute to
be l iberally construed in favor of the right to appeal.” ( Moniz

, at p. 73.)8 Similarly, in Uribe v. Crown Building Maintenance Co. (2021) 70 Cal.App.5th 986, 999

- 1000 ( Uribe )

, a n interven o r (Garibay) who opted out of a class settlement but also asserted a PAGA claim had standing to appeal a settlement in a nother
action that resolved both class and PAGA claims

. The court
concluded that Garibay ha d “ standing to appeal because, having intervened and yet unable to opt out of the parties’ s ettlement of Uribe’s PAGA claim, G aribay ’ s PAGA cause of action in this same lawsuit was resolved against her by the trial court ’ s entry of judgment on its final approval of the settlement. She is therefore

a party ‘ aggrieved ’ by the judgment. As one court has explained,
the ‘ prejudice ’ giving rise to standing arises when ‘ “ the
settlement strips the party of a legal claim or cause of action. ” ’ [Citation.]” ( Uribe

, at p. 1001.) We agree with our colleagues in Moniz and Uribe and
conclude that where two separate PAGA actions have overlapping claims, the PAGA representative in one action has

a n interest in the other action sufficient to intervene in that other
action

. Allowing intervention under these circumstances promot e s fairness in the context of a PAGA settlement and
protect s against collusive judgments and “reverse auctions

. ” 6

Denial of the Intervention Having concluded that Maldonado possessed an interest sufficient for intervention, we must next determine if the court erred in denying him leave to intervene

.

6 A “ ‘ reverse auction ’ ” occurs when a “ defendant settles with the low bidder among two or more class representatives, to the detriment of the class. ” ( Uribe

, supra , 70 Cal.App.5th at p. 990 , italics added .)9 For mandatory intervention, the nonparty must have “an interest relating to the property or transaction that is the subject
of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.” (Code of Civ. Proc., § 387, subd. (d)(1)(B). ) For permissive intervention, t he nonparty must satisfy the following factors: “(1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the lit igation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.” (

Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386 ; Code of Civ. Proc., § 387, subd. (d)(2) .) Here, the trial court denied the ex parte application for
intervention without specifying its legal reasoning

. Thus, we do not know if the court determined that Maldonado , as a PAGA representative, lacked a personal interest to intervene. Nevertheless, error is harmless unless it resulted in a miscarriage of justice

. ( Kyne v. Eustice (1963) 215 Cal.App.2d 627, 635.) Error is prejudicial and results in a miscarriage of justice if the reviewing court concludes that it is reasonably probable that a result more favorable to the appellant would have
been reached absent the error. ( Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 80 0 .)
Maldonado was not prejudiced by denial of leave to intervene (either mandatory or permissive) because his interests

w ere “ adequately represented by ” Go nzalez. (Code of Civ. Proc., § 387, subd. (d)(1)(B) ; see Coalition for Fair Rent v. Abdelnour (1980) 107 Cal.App.3d 97, 116 [no prejudice resulting from a10

denial of permissive intervention where party’s position was fully litigated by another party]) .) Here, a t the time of the settlement, there was only one overlapping PAGA claim remaining between the Maldonado and
Gonzalez actions

— reimbursement of personal vehicle expenses. Specifically, Maldonado’s PAGA notice and complaint alleged
that APP required aggrieved employees “to use their personal vehicles for work related activities, ” in violation of section 2802

. Gonzalez’s PAGA notice, complaint, and settlement covered a broader violation of section 280 2 by alleging that aggrieved employees were required to “purchase work

- related items without
reimbursement .” Th e Gonzalez action thus encompassed Maldonado’s expense claim. And, in evaluating the Gonzalez settlement, t he trial court concluded that the settlement was

“ reasonable ” and was a “ product of informed, non

- collusive negotiations conducted at arms’ length by the Parties.”
Maldonado does not show otherwise ; there is no analysis on how the settlement amount relating to personal vehicle expense is
in adequate. T he record thus reflects that Gonzalez adequately represented Maldonado’s interest in the one limited claim asserted by both.
Maldonado argues that Gonzale z did n ot have the authority
to represent his interests and did not meet the 65

- day waiting period (§ 2699.3) to litigate those claims

. But these arguments pertain only to the PAGA claims that Gonzalez added in his
amended PAGA n otice and initially attempted to settle. These claims were ultimately omitted from the amended settlement

terms after LWDA informed Gonzalez of its ongoing investigation and instructed the parties to omit the m

. Therefore, to the extent11

there was any issue regarding a failure to comply with the 65

- day waiting period, Gonzalez and APP remedied those issue s

. Maldonado contends that even after the amendment of the
settlement , “Gonzalez

. . . lac k ed authority to expan d the scope of
the settlement to all expense reimbursement claims.” He is

wrong. There was no improper expansion of the scope of the
settlement. Pursuant to section 2699.3, Gonzalez properly
noticed LWDA in his November 2020 letter of his claim for

expe nses that were used “to purchase work

- related items without reimbursement, which include s uniforms, ” but was not limited to uniforms

. (See Gunther v. Alaska Airlines, Inc

. (2021) 72 Cal.App.5th 334 , 35 0

- 351 [ plaintiffs are not required to set forth

ever y potential fact or every future theory and are only required
to state sufficien t information that will put the employer and LWDA on notice] ; see also Brown v. Ralphs Grocery Co

. (2018) 28 Cal.App.5th 824, 83 8 [a notice identify ing one specific wage vi olation but stated that “[ t ] he violations include, without
limitation ” that specific violation was sufficient to exhaust remedies for a broader wage claim] .)
Maldonado contends that Gonzalez lacked the authority to “expand [] the period of release to July 28, 2019.” Maldonado argues that Gonzalez cannot release claims beyond the one

- year limitation s period prior to the date of his PAGA notice , which was filed in November 2020

. ( Code of Civ. Proc., § 340, subd. (a) [statute of limitations for a PAGA c laim is one year].) This argument lacks merit . T he statute of limitations is an affirmative defense that can be waived by the defendant in a
settlement agreement . ( See Amaro v. Anaheim Arena
M ana g e m en t, LLC (2021) 69 Cal.App.5th 521, 543 .)12 Maldonado t herefore does not show how his interests were not adequately represented by Gonzalez or how he was prejudiced by the denial of leave to intervene. July 14 Order With respect to the July 14 order denying Maldonado leave to intervene, Gonzalez contends that the underlying motion was actually a motion to re consider the ruling on the earlier ex parte application . Gonzalez argues the trial court properly denied it pursuant to Code of Civil Procedure section 1008, and that the order denying the motion is not appealable. We agree. “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstanc es, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to
be shown.” (Code Civ. Proc., § 1008 , subd. (b).) R egardless of a motion’s title, if the motion raises the same issues as an earlier motion that was previously denied, it is properly deemed a
renewal of the earlier motion pursuant to Code of Civil Procedure section 1008, subdivision (b). ( Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Here, Maldonado fi led the motion to intervene six days after the trial court denied his ex parte application seeking the same relief

. Maldonado raised the same arguments and requested the same relief. His motion was therefore an “application for the same order.” (Code of Civ. Proc., § 1008,
subd

. (b).)13 An order denying a renewed motion or motion for
reconsideration pursuant to Code of Civil Procedure section 1008 is not an appealable order. ( Tate v. Wilburn (2010) 184 Cal.App.4th 150, 159

- 160.) We therefore lack jurisdiction to consider an appeal of the July 14, 2021

, order. ( Woodman v. Ackerman (1967) 249 Cal.App.2d 644, 646.)
DISPOSITIO N The May 27 and July 14, 2021

, orders ( denying leave to
intervene ) are affirmed

. Respondents shall recover costs on appeal. NOT TO BE PUBLISHED.

PERREN , J.

We concur:

GILBERT, P. J.

YEGAN , J.Jeffrey G. Bennett, Judge

Superior Court County of Ventura

______________________________

Law Offices of Sima Farde and Sima Farde for Movant and Appellant. Moon & Yang, H. Scott Leviant, Kane Moon and Lilit Tunyan for Plaintiff and Respondent. Sheppard, Mullin, Richter & Hampton, Ronda D. Jamgotchian, Paul Berkowitz and Michaela R. Goldstein for Defendant and Respondent.