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,

Movan t 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 Van essa M. Rodriguez for Mova nt 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. (B2 88005 & 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 PA GA 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 judg ment 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 ho ld: (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 age nt, 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 Ja nuary 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 violat ed certain Labor Code re quirements, including requirements that employers pay overtime wages (§§ 510, 1198), provide meal and rest periods (§ § 226.7, 512, subd. (a)), timely pa y wages during and upon termination of employment4

(§§ 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 bus iness 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

s uperior c ourt 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 Rich ard L. Fruin. On December 1, 2016, the court issued an order bifurcating
the trial in the Starks action. T he first phase would determine
whether Starks is an “ aggrieved employee ” under PAGA. 2 T he second p hase would determine whether there are other aggrieved employees and the amount of civil penalties. Meanwhile, o n 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 t hose 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 a ction 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 fi led in both the Herrera and
Starks actions notice s 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 action s

. Herrera did not file a motion to consolidate . Nor
does it appear from our record that Herrera litigate d his case beyond propounding some initi al 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

p hase of the bifurcated trial in the Starks action and found that Starks is an aggrieved employee for purposes of PAGA

. On September 27, 2017, t he 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 e ncompassed
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 move6

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 con ference 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.”
O f the $25,000 allocated to the PAGA p ortion, 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 p ortion 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 couns el provide d 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 th e 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 appro ving 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[e d] 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 materia l respects to his prior complaint.8

California, who are hereby barred fr om 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 sub mitted 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 wa s 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 approxima tely 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 ” und er the Starks
settlement a check for that employee’s portion of the Stark s judgment proceeds

. On December 13, 2017, during the hearing held on Herrera’s motion s , 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 w ithout his knowledge or endorsement. He rrera 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 pursu e [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 S t arks action and under the
doctrine of res judicata

. The court further stated that the
Herrera action coul d 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 mo tion. 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 the se 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 pa ce 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 Ca l.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” ( i d. at p. 360). Although PAGA empowers a n LWDA

- deputized employee to prosecute an action on behalf of the state and aggrieved11

employees , who share any civil penalties recovered in the
action

, the la w 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 ‘ “ represent s 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 cl aim. [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 enfor cement action between the LWDA and
the employer, with the PAGA plaintiff acting on behalf of the government.” ( Id

. a t p. 86; see also ZB, supra , 8 Cal.5th at p. 185 [“ [a] ll PAGA claims

. . . are brought on the state’s behal f ” ] ;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 act ion s concurrently against the same employer ( Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 866 ; Tan v.
Grub h ub, 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.5 th

__ [ 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 penalti es 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 “cou rt shall review13

and approve [the] settlement.” (§ 2699, subd. ( l )(2).) Although

o ur 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 c ourts have
not determined the standard s 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
abil ity 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. 45 0 , § 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 assert ed that t his 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
Stark s ’s alleged inadequate rep resentation 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. (9 th 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 justific ation, 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 .)
C ourt s 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 sta g e of the proceedings

— here

, postju dgment

— support s d enial of the motion. Three weeks earlier, t he court had approved the settlement and e ntered 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. 73 4 , 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. (7 th Cir. 2003) 316 F.3d 694, 7 00

– 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 co nsistently 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 court

approve d 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 th e 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 to17

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 Tri a l (The Rutter Group 2019) ¶ 12.359,

p p

. 12(1)

- 68 to 12(1)

- 69 [in moving to consolidate, the party need

on ly 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
th e cases , he w ould have receiv ed 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 faile d 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 disclo sed 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 Popula r , 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
interven or] 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. (1 st 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 prosecut e his PAGA action rendered that outcome highly likely. Although it was possible that the Starks action
would settle on terms Herrera would find acceptable, t here was certainly a significant risk that Starks would settle his PAGA
action on terms that Herrera would find un acceptable . 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; s ee 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, c ourts have rejected arguments similar

to Herre ra’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 was19

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 prospect ive 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.” ( Alan iz

, 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 set tlement 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 [state20

agency] would not protect t heir 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 negotiatio ns 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 discussion s 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 late21

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.)
Fo r 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 mispl a ced . In that case, a condominium homeowner s association
sued t he condominium developer alleging construction defects in the development. After the homeowners association announced

a settlement, certain homeowners sought to intervene. T he

court denied the motion on the ground that it was untimely and
indicat ed that the individual homeowners should have sought to intervene “at or about the time the case was filed.” ( Id. at p. 280.)
The C ourt of A ppeal 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 ho meowners 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 the22

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 pro spective 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 mak e 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 s ettlement. 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 Stark s 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 “effec tively 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

, and23

instead acc epted 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

t he 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 t he 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 LWDA24

274 Cal.App.2d 42, 44 [party’s cashing of check constitute s acceptance of payment].) Under the general rule s set forth above

, therefore, the LWDA has forfeited its right to attack the Starks judgment on appeal

. B ecause 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 § 2 699.3, subd. (a)(2)(A)) or even to maintain it concurren tly with the
Starks action (see Tan v. Grub h ub, 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, a lthough the L W DA’s acceptance of the benefits of
the judgment a s 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 th e trial court review and approve of

a PAGA settlement. (Se e § 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 accep tance 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 n ot be bound by its acceptance of the judgment proceeds because it is an understaffed government agency that relies

on PAGA proceeds to operate. (Conc. & dis. opn. post , at p. 6
, fn. 5 & pp. 6

– 9.) The rule that one who accepts the benefits of a judgment cannot attack that judgment, however, applies
to governments, as well as private litigants (see San Bernardino v. Riverside , supra, 135 Cal. at p. 620 ), and to appellants who are “forced” to accept the proceeds due to their “financial situation” (see Bulpitt v. Bulpitt (1951) 107 Cal.App.2d 550, 553 ). We therefore decline to create an exception to the rule for resource

strapped parties lest the exception swallows the rule.26

a judgment after the LWDA a ccepts 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 , a nd 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 th e 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 ch eck. ” (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 e ntry 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 L WDA 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, a part 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 j udgment .” ( 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. S uperior
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 , t he concurrence/dissent asserts th at

“ 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. 1 3

– 1 8 .) 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 PAGA28

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 a nother 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 a sserts “ a PAGA claim only as the state’s designated proxy .” ( Id. at p. 87 ; accord

, Bautista v. Fantasy Activewear, Inc. (2020) 52 Cal.App.5 th 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 t he Starks judgment and the order denying his motion to vacate the judgment. 12

D. Summary Judgment in the Herrera Action I s Proper Vortex moved for summary judgment on three grounds: (1) The Starks settlement and judgment bar Herrera’s lawsuit; (2) T he doctrine of res judicata bars Herrera ’s lawsuit ; and (3) Herrera lacks standing to prosecute the law suit because
he cashed his personal settlement check from the Starks action

. In support of the motion, Vortex submitted the Starks settlement agreement , th e Starks judgment, and evidence that the LWDA cashed its settlement check, which Herrera did not dispute

.

12 We do not a ddress 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 ob jection” 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 duri ng 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 i t “agrees with [Vo rtex’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 mat erial fact exists and the moving party is entitled to judgment as a matter of law.” ’ [Citation.] ” ( Barenborg v. Si g ma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76.) On appeal, Herrera challenges the court’s res judicata
determination on the gro und 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 among30

“ 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 judgme nt 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

r evers e 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 re s judicata did not apply at time of trial in
first action because judgment i n 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, t he 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 , it s 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 learn ed 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 th erefore 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 tria l 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
Her rera. 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 i nsulates PAGA settlements
from judicial review

. As the settlement before us demonstrates

—

1 U ndesignated 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 Cas hing 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 t oo 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 fi led 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 court s and appellate

courts to auditor s 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 po st , 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 T o 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 jud gment’ ” 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 settleme nt 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 basi s 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. (Se e 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 aris ing 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. an te , at p p

. 2 3

– 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 court s apply the holding that
the LWDA

— which is “ ‘always the real party in interest’ ” in a4

PAGA action 3

— 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 a cceptance of the benefits of that judgment.” (See maj

. op n

. ante , at p p

. 3 0

– 31, italics added

. ) Whether one analogizes PAGA settlements to qui tam actions or class actions, (see post , p art II.C), there is virtually no preceden t limiting a trial or appel late 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 t oday’s holding is to leave in place a settlement that awards $630,000 to Starks’s lawyers fo r 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

, ev en 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

awa rding 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 co urt’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
in dependent 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,

con travene 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

. op n

. ante , at p. 2 5 .) 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’ u nder PAGA [ (§ 2699, subd. ( l )(2)) ] is independent of the LWDA ’s acceptance of the judgment proceeds .” (See maj

. op n

. ante , at p. 2 5 .)

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

sett lement check. (See maj

. op n

. ante , at p p

. 3 0

– 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,
tri al 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 it s 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 be ing 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 relie s 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 pa rt, and for education of employers and employees about their rights and responsibilities under thi s code . . . .”].)7

interest has agreed to

— and is bound by

— the agreement, an d 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 aggrie ved employees. ”].) I respectfully maintain that th e majority’s reasoning relies

on a n 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 presuppo ses 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.5t h 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 a dequately 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 agenci es 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 often8

directed their re sources 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 fro m the Legislative Analyst’s Office strongly suggest
that the LWDA lacks the resources meaningfully to review proposed PAGA settlements. The L egislative 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] , archive d 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 “B efore 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 inves tigated 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. (S ee id. at p. 4.) The L egislative 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 expa nd LWDA’s ability to meet the intent of the PAGA legislation.” (See id. at pp. 6

– 7.) The Legislature ultimately approved the Governor’s request for funding these 10 positions. (See Legis. Analyst, The
2019

– 20 Budget: California Spending Plan (2019

– 20 Budget)

pp. 7

– 8 at <https://lao.ca.gov/Publications/Report/4101#labor

programs> [as of August 3
, 2020] , archived at

< https://perma.cc/76KR

- QY4T > .) Further, in 2019, the Legislature authorized the creation of an additional twelve positions to “allow the La bor 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. ( S ee Stats. 2016, ch. 31 , § 189, codified as Lab. Code, § 2699, subd. ( l )(2) .)10 The L egislative Analyst’s Office publications referenced herein demonstrate that althoug h 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 mo re PAGA claims will be filed in light of recent arbitration and class action precedents 8 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 co urts 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 restriction s “because it is not a dispute between an employer and an employee arising out of their contractual relationship. It is a dispute betwee n an employer and the state, ” which is usually not a party to employers’ arbitration agreements. (See Iskanian

, at p. 38 6, 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 enforc eable 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 to11 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. 200 8 ) Appeal, § 67 , pp. 127

– 128 [indicating that the waiver doctrine was developed through a long line of California cases]; maj

. op n

. ante , at p. 2 4 [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.
Th e 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 . . . .” (S ee 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 PA GA 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 princ iple 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 government al 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 waiv ed 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 a rgument is
well

- founded, the trial court should have vacated the Starks judgment. Further, as discussed post , part III, b ecause the order granting summary judgment against Herrera in his own case depended on the validity of the Starks judgment and on Vort ex’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 wh en 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 Co de violations he allegedly
suffered.

11 As set forth in p art 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 un beknownst 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 approxim ately $33 in settlement funds if doing so were necessary to prosecuting his appeal. For the reasons discussed in this section, e ven assuming arguendo that Herrera did personally deposit th e 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 wh ich 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 e mployer’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 Legislatu re 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, when16

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
differ ently, “ [ 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

no t 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, H errera 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 cour t 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 K im is that they appear to conflate two doctrinally separate concepts: waiver and PAGA standing. (See maj. opn. ante , at p p . 2 7

– 28 .) Specifically, after concluding that “neither Herrera nor any other aggrieved employee has standing, as aggrieved employee s, 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 Labo r 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 ind ividual claims of Starks or any other aggrieved employee ” ; (3) the LWDA did not object to the settlement agreement, which it had been provided p ri or 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 em ployed 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. 2 7), 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 i d.

, at

p. 28, italics added.) Kim , however, did not address common

- law
waiver. Kim analyzed the effect of being already compensated for
L abor C ode violations on an employee’s standing to bring a PAGA claim, and concluded that the employ ee still had standing to do so because he was defendant’s employee and suffered a L abor C ode 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 purs ue 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 C ode
C iv. 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 original ly 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. 200 8 ) Appeal, § 26

, p. 89 .)19 The second argument also fails. S tarks 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 a ction. (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

p arty 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 T hat 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 assert s 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 th e money in a trust

acc ount 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 conclusion20

th at 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 h er 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 ce rtain declarations to support his motion

. Vortex later joined Starks’s motion. Herrera filed an opposition, along with his own and his wife’s declaration s. Presiding Justice Rothschild summarily denied the motion to dismiss.

15 We may c onsider 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 ha ve 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 t o 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 erroneou sly contends that, “[i]f Herrera prevails on appeal, Herre ra 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 jud gment. 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, t he 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

. . . .” (I talics 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 matt er is inadmissible unless he has personal knowledge of the matter [.] ”].)23

wherewithal to review a PAG A 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 actions 18 and qui tam cases. 19

18 (See, e.g., Munoz v. BCI Coca

- Cola Bottling Co. of Los Angeles (20 10) 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 set tlement 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 [re jecting 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 ass essed 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 Nud elman ’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
release d 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

- 00 736) 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

– 4 08 [“ ‘ “ ‘The most important factor [under the fair, adequate, and reasonable standard] is the strength of the case for plaintiffs on25

the modic um 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 informat ion 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 s ettlements 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 Star ks 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 w ould 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 bur den 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 gro unds: (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 argument s, 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 , p art II.C, the trial cou rt 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 t he underlying agreement. (See ante , p art 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.
H oge (1991) 232 Cal.App.3d 1231, 1233

– 1234, 1237

– 1238 [reversing an order dismissing an action on res judicata grounds27

because the trial court in the prior action erred in denying a motion to vacate the underlying judgment therein].) The sole remaining gro und 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 , p art 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 He rrera’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 untim ely does not impact the timeliness of Herrera’s motion to vacate the Starks judgment. Neither Starks nor Vortex contest s the timeliness of Herrera’s motion to vacate the Starks judgment. Nor is it apparent that any such28 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

. op n

. 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. T he 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 t he issuance of the trial court’s approval order; and (b) the

challenge would have been meritori ous 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] S ection 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 jud gment 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

a ny 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 performe d

— 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

. op n

. ante , at p. 1 6 .) In closing, the majority correctly notes the logistical difficulties of undoing a sett lement 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 th e filing of Herrera’s complaint, it did not apply to the Herrera action.” (See maj

. op n

. ante , at p. 6, fn. 3.) Although these statements are true, the re are other relevant record citations. The trial court remarked at the September 27, 2017 hearing th at it was “going to continue t he stay [ in Herrera] until November 1.” (I talics added .) The trial court presumably was aware of the procedural posture of its own case. Th e 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.
Sta rks 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 se ttlements 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.