Filed 8/25/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

CHAD STARKS,

Plaintiff and Respondent,

v.

VORTEX INDUSTRIES, INC.,

Defendant and Respondent;

ADOLFO HERRERA,

Movant and Appellant.

 B288005, B292643

 (Los Angeles County

 Super. Ct. No. BC590955)

ADOLFO HERRERA,

Plaintiff and Appellant,

v.

VORTEX INDUSTRIES, INC.,

Defendant and Respondent.

 (Los Angeles County

 Super. Ct. No. BC644313)
2

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.
3

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 
4

(§§ 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.”
5

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 
6

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.
7

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. 
8

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.
9

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.
10

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 
11

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”]; 
12

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 
13

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.)
14

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. 
15

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).)
16

(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 courtapproved 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 
17

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.” 
18

(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 
19

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 
20

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 
21

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 
22

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 
23

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 
24

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.)
25

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 resourcestrapped parties lest the exception swallows the rule.
26

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.
27

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
28

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.
29

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 
30

“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. 
31

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.
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.
2

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. 
3

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 
4

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.”].) 
5

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. 
6

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 . . . .”].)
7

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 
8

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).) 
9

(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#laborprograms> [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).) 
10

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 
11

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.)
12

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].)
13

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. 
14

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.
15

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 
16

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.) 
17

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. 
18

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.) 
19

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 
20

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”].)
21

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. 
22

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[.]”].) 
23

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].) 
24

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 
25

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.”].)
26

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 
27

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 
28

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.”].) 
29

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.
30

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.