FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN D. CALLAHAN, on behalf 

of herself and all others similarly 

situated,

Plaintiff-Appellee,

v.

BROOKDALE SENIOR LIVING 

COMMUNITIES, INC., a Delaware 

corporation; BROOKDALE EMPLOYEE 

SERVICES, LLC, a Delaware 

corporation; BROOKDALE EMPLOYEE 

SERVICES CORPORATE, LLC, a 

Delaware corporation; 

SUMMERVILLE AT ATHERTON 

COURT, LLC, a Delaware limited 

liability company; BROOKDALE 

VEHICLE HOLDING, LLC, a Delaware 

limited liability company; BKD

PERSONAL ASSISTANCE SERVICES,

LLC, a Delaware limited liability 

company; EMERITUS CORPORATION, 

a Washington corporation; 

BROOKDALE LIVING COMMUNITIES,

INC., a Delaware corporation; BKD

TWENTY-ONE MANAGEMENT 

COMPANY, INC., a Delaware 

corporation; BROOKDALE SENIOR 

LIVING, INC., a Delaware 

No. 20-55603

D.C. No.

2:18-cv-10726-

VAP-SS
2 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

corporation; DOES, 1 through 100, 

Inclusive,

Defendants-Appellees,

v.

MISHELLE NEVERSON, Proposed 

Intervenor,

Movant-Appellant.

CAROLYN D. CALLAHAN, on behalf 

of herself and all others similarly 

situated,

Plaintiff-Appellee,

v.

BROOKDALE SENIOR LIVING 

COMMUNITIES, INC., a Delaware 

corporation; BROOKDALE EMPLOYEE 

SERVICES, LLC, a Delaware 

corporation; BROOKDALE EMPLOYEE 

SERVICES CORPORATE, LLC, a 

Delaware corporation; 

SUMMERVILLE AT ATHERTON 

COURT, LLC, a Delaware limited 

liability company; BROOKDALE 

VEHICLE HOLDING, LLC, a Delaware 

limited liability company; BKD

PERSONAL ASSISTANCE SERVICES,

LLC, a Delaware limited liability 

company; EMERITUS CORPORATION, 

a Washington corporation; 

BROOKDALE LIVING COMMUNITIES,

No. 20-55761

D.C. No.

2:18-cv-10726-

VAP-SS

ORDER AND

AMENDED

OPINION
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 3

INC., a Delaware corporation; BKD

TWENTY-ONE MANAGEMENT 

COMPANY, INC., a Delaware 

corporation; BROOKDALE SENIOR 

LIVING, INC., a Delaware 

corporation; DOES, 1 through 100, 

Inclusive,

Defendants-Appellees,

v.

MISHELLE NEVERSON, Proposed 

Intervenor,

Movant-Appellant,

and

NINA REJUSO, Proposed Intervenor; 

GENEFLOR SACRO, Proposed 

Intervenor,

Movants.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted July 26, 2021

Pasadena, California

Filed June 29, 2022

Amended July 29, 2022
4 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

Before: Milan D. Smith, Jr. and John B. Owens, Circuit 

Judges, and Eduardo C. Robreno,* District Judge.

Order;

Opinion by Judge Robreno

SUMMARY**

California’s Private Attorneys General Act / 

Intervention

The panel amended its opinion filed on June 29, 2022, 

affirmed the district court’s denial of Mishelle Neverson’s 

motion to intervene, and dismissed Neverson’s appeal of the 

district court’s approval of the Private Attorneys General Act 

(“PAGA”) settlement between Carolyn Callahan and her 

former employer, Brookdale Senior Living Communities, 

Inc.

Callahan brought the action pursuant to California’s 

PAGA, California Labor Code sections 2698-2699.5, which 

allows aggrieved employees to recover civil penalties for 

Labor Code violations on behalf of themselves, the state, or 

other employees. Callahan and Brookdale agreed to a 

settlement. Neverson, who was a plaintiff in an overlapping 

PAGA case against Brookdale, filed a motion to intervene in 

Callahan’s action to object to the PAGA settlement.

* The Honorable Eduardo C. Robreno, United States District Judge 

for the Eastern District of Pennsylvania, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 5

The panel held that Neverson was not a party to 

Callahan’s case and could not appeal the approval of the 

PAGA settlement.

The panel first considered whether Neverson was 

entitled to intervene in Callahan’s case as a matter of right 

under Fed. R. Civ. P. 24(a)(2). The panel held that 

Neverson’s motion for intervention as a matter of right failed 

at the fourth and final prong of the Wilderness Society v. U.S. 

Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011), test, 

which requires that an applicant’s interest must be 

inadequately represented by the parties to the action. Here, 

Neverson and Callahan had the same interest in this 

litigation: to obtain civil penalties on behalf of the California 

Labor & Workforce Development Agency (“LWDA”) under 

PAGA. Given this identity of interest, Neverson needed to 

make a compelling showing to demonstrate inadequate 

representation. The panel concluded she failed to make this 

required showing. Accordingly, the panel affirmed the 

district court’s denial of Neverson’s motion to intervene as 

of right.

The panel next considered whether the district court 

abused its discretion in denying Neverson permissive 

intervention under Fed. R. Civ. P. 24(b). The district court 

held that the discretionary factors governing permissive 

intervention pointed strongly against intervention: both 

Callahan and Neverson are deputized agents of the LWDA 

who assert the interests of the LWDA, and allowing 

Neverson to intervene would not significantly contribute to 

the factual development of issues in the case. The panel 

concluded that the district court did not err in denying 

Neverson permissive intervention, and affirmed the denial of 

Neverson’s motion to intervene.
6 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

Because Neverson’s motion to intervene was properly 

denied, she never became a party to the PAGA action. As a 

non-party to this action, Neverson had no right to appeal the 

district court’s approval of the PAGA settlement. The panel 

dismissed her appeal of the settlement approval, and did not 

consider whether the district court abused its discretion in 

approving the settlement.

COUNSEL

Ryan H. Wu (argued) and Robert K. Friedl, Capstone Law 

APC, Los Angeles, California, for Movant-Appellant.

Joseph Socher (argued), Los Angeles, California; Andranik 

Tsarukyan and Armen Zenjiryan, Remedy Law Group LLP, 

Burbank, California; for Plaintiff-Appellee.

Keith A. Jacoby (argued), J. Kevin Lilly, Shannon R. Boyce, 

and Jeffrey J. Mann, Littler Mendelson P.C., Los Angeles, 

California; for Defendants-Appellees.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 7

ORDER

The opinion filed on June 29, 2022 (Docket Entry 

No. 80) is amended by the Opinion filed concurrently with 

this order. No petitions for rehearing or rehearing en banc 

will be entertained.

OPINION

ROBRENO, District Judge:

Carolyn Callahan is a plaintiff in an action brought 

against Brookdale Senior Living Communities, Inc. 

(“Brookdale”),1 her former employer, pursuant to the 

California Private Attorneys General Act (“PAGA”), Cal. 

Lab. Code sections 2698–2699.5, which allows aggrieved 

employees to recover civil penalties for Labor Code 

violations on behalf of themselves, the state, or other current 

or former employees. After mediation, Callahan and 

Brookdale agreed to a settlement. Appellant Mishelle

Neverson, who was a plaintiff in an overlapping PAGA case 

against Brookdale, filed a motion to intervene in Callahan’s 

action. The district court denied Neverson’s motion and 

approved the PAGA settlement in Callahan’s case in 

relevant part. Neverson appeals both the denial of her motion 

to intervene and the district court’s order approving the 

1 “Brookdale” is used herein to refer to Brookdale Senior Living 

Communities, Inc.; Brookdale Employee Services, LLC; Brookdale 

Employee Services - Corporate, LLC; Summerville at Atherton Court, 

LLC; Brookdale Vehicle Holding, LLC; BKD Personal Assistance 

Services, LLC; Emeritus Corporation, Brookdale Living Communities, 

Inc.; BKD Twenty-One Management Company, Inc.; and Brookdale 

Senior Living Inc., which are all involved in this litigation.
8 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

Callahan settlement. We consolidated these two issues on 

appeal.

For the reasons set forth below, we affirm the district 

court’s denial of Neverson’s motion to intervene. We hold 

that Neverson is not a party to Callahan’s case and may not 

appeal the approval of the PAGA settlement. Under these 

circumstances, we have no occasion to consider Neverson’s 

substantive objections to the PAGA settlement.

FACTUAL AND PROCEDURAL BACKGROUND

Brookdale owns and operates senior living communities 

throughout the United States. Callahan worked for 

Brookdale as a concierge from approximately February 2006 

to February 2018. On November 26, 2018, she sent the 

California Labor & Workforce Development Agency 

(“LWDA”) notice of a number of Brookdale’s alleged 

violations of the California Labor Code.

On November 27, 2018, Callahan filed a class action 

lawsuit against Brookdale in the Los Angeles County 

Superior Court. The complaint alleged violations of the 

Labor Code and California’s Unfair Competition Law. She 

did not initially bring a claim under PAGA.

I. District Court Proceedings

On December 28, 2018, Brookdale removed the action 

to federal court pursuant to the Class Action Fairness Act of 

2005, 28 U.S.C. § 1332(d). That same day, Brookdale filed 
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 9

a notice of six related cases against it that included the action 

brought by Neverson (the “Related Actions”).2

Callahan’s case did not proceed to litigation. Rather, on 

January 31, 2019, Callahan and Brookdale filed a stipulation 

requesting that Callahan’s individual claims be stayed and 

submitted to arbitration, that her class claims be dismissed, 

and that she be permitted to file an amended complaint 

asserting a PAGA claim after the notice period to the LWDA 

had been exhausted. The district court approved the 

stipulation on February 5, 2019. Callahan filed her amended 

complaint on February 6, 2019, which dismissed her class 

claims and added claims under PAGA.

After participating in mediation on the PAGA claim, 

Callahan and Brookdale agreed to settle Callahan’s PAGA 

claim along with the related PAGA claims of other plaintiffs 

(including Neverson) that were pending against Brookdale. 

On October 17, 2019, Callahan sent an amended letter to the 

LWDA notifying it that the parties intended to resolve 

Callahan’s PAGA action and all related PAGA actions 

against Brookdale, including Neverson’s action. The LWDA 

did not elect to investigate or prosecute the Labor Code 

violations alleged in Callahan’s original or amended notice 

letters during the statutorily provided sixty-day period. See

Cal. Lab. Code § 2699.3(a)(2)(A).

2 Pursuant to the Central District of California’s Local Rule of Civil 

Procedure 83-1.3.1, parties are required to file a Notice of Related Cases 

whenever two or more cases filed in the Central District “arise from the 

same or a closely related transaction, happening, or event,” “call for 

determination of the same or substantially related or similar questions of 

law and fact,” or “for other reasons would entail substantial duplication 

of labor if heard by different judges.” C.D. Cal. R. 83-1.3.1(a)–(c).
10 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

On October 21, 2019, Callahan and Brookdale filed a 

Joint Notice of Settlement advising the district court they 

had settled the case as to all parties and causes of action. 

Three days later, Neverson filed a notice of intent to 

intervene to object to the PAGA settlement.

On February 13, 2020, Callahan filed a second amended 

complaint, which sought PAGA penalties based on predicate 

violations of Labor Code sections 201, 202, 203, 203.1, 

222.5, 226, 226.7, 510, 512, 558, 1174, 1194, 1194.2, 2802, 

2810.5 and Wage Order No. 4-2001. The second amended 

complaint also added all the named defendants from the 

Related Actions.

On March 4, 2020, Callahan and Brookdale filed a joint 

motion for approval of the PAGA settlement. Their proposed 

settlement was based on a Gross Settlement Fund of 

$920,000. The funds were allocated as follows: $417,240.72 

to the LWDA, $139,080.24 to the aggrieved employees, 

$46,000.00 in administration costs, $306,666.67 in 

attorneys’ fees, $8,512.36 in litigation costs and expenses, 

and $2,500.00 as a service award for Callahan as the named 

plaintiff.3

On March 13, 2020, Neverson filed her motion to 

intervene. On May 20, 2020, the district court denied her 

motion. The district court denied Neverson’s intervention as 

a matter of right under Federal Rule of Civil Procedure 24(a) 

because she had “not cited, and the Court ha[d] not found, 

any cases in which a court has granted intervention as of 

right in a PAGA settlement.” Callahan v. Brookdale Senior 

3 By statute, the amount awarded to the LWDA equals 75% of the 

settlement fund after costs and attorneys’ fees, with the remaining 25% 

allocated to the aggrieved employees. See Cal. Lab. Code § 2699(i).
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 11

Living Cmtys., Inc., No. 2:18-cv-10726-VAP-SSx, 2020 WL 

4904653, at *4 (C.D. Cal. May 20, 2020). In considering 

whether to grant permissive intervention pursuant to Rule 

24(b), the court found (1) that it had jurisdiction to permit 

intervention, (2) that Neverson’s motion to intervene was 

timely, and (3) that there were common questions of law and 

fact between Neverson’s and Callahan’s claims. But the 

court ultimately denied permissive intervention because 

Neverson and Callahan represented the same legal interest 

and because “permitting intervention would not contribute 

to the factual development of issues in the case.” Id. at *5.

On July 7, 2020, the district court entered an order 

granting in part the joint motion for approval of the PAGA 

settlement. The court approved the settlement amount, but 

reduced the amount allocated for attorneys’ fees from 

$306,666.67 to $230,000.00.

Neverson timely appealed both the order denying her 

motion to intervene and the district court’s order approving 

the PAGA settlement. We consolidated her two appeals on 

September 4, 2020.

II. Developments on Appeal

Neverson raises three arguments on appeal: (1) that she 

is entitled to intervene in Callahan’s PAGA action as a 

matter of right; (2) that the district court abused its discretion 

in denying her permissive intervention; and (3) that the 

district court abused its discretion in finding that the PAGA 

settlement is fundamentally fair, adequate, and reasonable.

After the initial briefing was completed in this case, we 

issued two decisions that inform our judgment here. First, 

Magadia v. Wal-Mart Associates, Inc., 999 F.3d 668 (9th 

Cir. 2021), held that a plaintiff seeking penalties under 
12 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

PAGA for California labor law violations must satisfy the 

traditional Article III standing requirement of an injury in 

fact. See id. at 677–78. After the Magadia decision was filed, 

we directed the parties to file supplemental briefs to address 

its impact on the motion to intervene, Callahan’s standing to 

bring the PAGA suit, and Neverson’s standing to object to 

the PAGA settlement.

Second, we decided Saucillo v. Peck, 25 F.4th 1118 (9th 

Cir. 2022), holding, as relevant here, that an objector to a 

PAGA settlement who was not a party to the underlying 

litigation may not appeal the approval of the settlement. Id.

at 1122. The Peck opinion notes that unlike a class action, 

“[t]here is no individual component to a PAGA action 

because every PAGA action is a representative action on 

behalf of the state.” Id. at 1126–27. And because objectors 

to a PAGA settlement have no individual stake in the action, 

they “are not ‘parties’ to a PAGA suit in the same sense that 

absent class members are ‘parties’ to a class action.” Id. at 

1127. We consequently dismissed the non-party objector’s 

appeal because “[t]he rule that only parties to a lawsuit, or 

those that properly become parties, may appeal an adverse 

judgment, is well settled.” Id. at 1126 (quoting United States 

ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica 

N.V., 945 F.3d 1237, 1241 (9th Cir. 2020)).

After Peck was decided, we also ordered the parties here 

to file supplemental briefs discussing its impact on this case. 

We specifically requested that the parties address 

(1) whether someone that has been allowed to intervene in a 

PAGA lawsuit or was improperly denied the opportunity to 

do so is a “party to the lawsuit” entitled to file an appeal, and 

(2) whether Neverson was still such a party assuming, 

arguendo, that she was properly denied permission to 

intervene.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 13

We have reviewed the parties’ supplemental briefs and 

letters directing us to additional authorities.4

STANDARD OF REVIEW

We review de novo a district court’s denial of a motion 

to intervene as a matter of right, with the exception of a 

denial based on timeliness, which is reviewed for abuse of 

discretion. Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 

1392, 1397 (9th Cir. 1995) (citing United States v. Oregon, 

913 F.2d 576, 587 (9th Cir. 1990)).

We review a district court’s denial of a motion for 

permissive intervention for abuse of discretion. Freedom 

from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 

(9th Cir. 2011) (citing League of United Latin Am. Citizens 

v. Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997)).

We also review a district court’s approval of a PAGA 

settlement for abuse of discretion. Roes v. SFBSC Mgmt., 

LLC, 944 F.3d 1035, 1043 (2019) (applying “clear abuse of 

discretion” standard to review of a settlement involving class 

and PAGA claims). “A court abuses its discretion when it 

fails to apply the correct legal standard or bases its decision 

on unreasonable findings of fact.” Id. (quoting Nachshin v. 

AOL, LLC, 663 F.3d 1034, 1038 (9th Cir. 2011)).

4 The parties’ respective motions for judicial notice (No. 20-55603 

Docket Entry Nos. 13, 24, 47, 55; No. 20-55761 Docket Entry Nos. 9, 

20, 43, 51) are GRANTED.
14 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

DISCUSSION

I. Motion to Intervene as a Matter of Right

We first consider whether Neverson was entitled to 

intervene in Callahan’s case as a matter of right pursuant to 

Federal Rule of Civil Procedure 24(a)(2).

Rule 24(a)(2) requires a court to permit intervention of 

right by a movant who “claims an interest relating to the 

property or transaction that is the subject of the action, and 

is so situated that disposing of the action may as a practical 

matter impair or impede the movant’s ability to protect its 

interest, unless existing parties adequately represent that 

interest.” We apply the following four-part test when 

analyzing a motion to intervene of right under Rule 24(a)(2):

(1) the motion must be timely; (2) the 

applicant must claim a “significantly 

protectable” interest relating to the property 

or transaction which is the subject of the 

action; (3) the applicant must be so situated 

that the disposition of the action may as a 

practical matter impair or impede its ability 

to protect that interest; and (4) the applicant’s 

interest must be inadequately represented by 

the parties to the action.

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 

(9th Cir. 2011) (quoting Sierra Club v. EPA, 995 F.2d 1478, 

1481 (9th Cir. 1993)).

“In evaluating whether these requirements are met, 

courts ‘are guided primarily by practical and equitable 

considerations.’” United States v. City of Los Angeles, 

288 F.3d 391, 397 (9th Cir. 2002) (quoting Donnelly v. 
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 15

Glickman, 159 F.3d 405, 409 (9th Cir. 1998)). Courts 

construe Rule 24(a) “broadly in favor of proposed 

intervenors.” Id. (quoting United States ex. rel. McGough v. 

Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992)).

We assume without deciding that Neverson’s motion to 

intervene was timely, and that Neverson has an interest in 

recovering penalties pursuant to PAGA that is sufficient to 

satisfy prongs two and three of the test articulated above. 

Even with these assumptions, Neverson’s motion for 

intervention as a matter of right fails at the fourth and final 

prong of the Wilderness Society test.

We consider three factors in deciding whether a present 

party adequately represents the interests of a prospective 

intervenor:

(1) whether the interest of a present party is 

such that it will undoubtedly make all of a 

proposed intervenor’s arguments; 

(2) whether the present party is capable and 

willing to make such arguments; and 

(3) whether a proposed intervenor would 

offer any necessary elements to the 

proceeding that other parties would neglect.

Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) 

(citing California v. Tahoe Reg’l Planning Agency, 792 F.2d 

775, 778 (9th Cir. 1986)). If the proposed intervenor’s 

interest is “identical to that of one of the present parties, a 

compelling showing should be required to demonstrate 

inadequate representation.”5 Id. (citation omitted). Neverson 

5 We have held that “[w]hen an applicant for intervention and an 

existing party have the same ultimate objective, a presumption of 
16 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

and Callahan have the same interest in this litigation: to 

obtain civil penalties on behalf of the LWDA under PAGA. 

Therefore, given this identity of interest, Neverson must 

make a compelling showing to demonstrate inadequate 

representation. We conclude she has failed to make the 

required showing.

Neverson’s primary contention is that her interests are 

not adequately represented because the PAGA settlement 

amount is too small. She claims that Callahan miscalculated 

the maximum PAGA penalties and unreasonably discounted 

them in agreeing to the settlement. But she provides no basis 

for her own calculation of the total penalties under PAGA 

and no basis for her contention that Callahan’s valuation of 

the penalties was incorrect.

Neverson’s argument that Callahan should not have 

settled the PAGA action for the agreed-upon amount 

adequacy of representation arises.” Arakaki, 324 F.3d at 1086 (citing 

League of United Latin Am. Citizens, 131 F.3d at 1305). We note that the 

Supreme Court’s recent opinion in Berger v. North Carolina State 

Conference of the NAACP, 142 S. Ct. 2191 (2022), calls into question 

whether the application of such a presumption is appropriate. However, 

as noted above, Neverson and Callahan have not only the same ultimate 

objective but identical interests in this action. Consequently, we need not 

apply the “same ultimate objective” presumption; we instead rely upon 

our rule that a proposed intervenor must make a compelling showing of 

inadequate representation when her interest is identical to that of an 

existing party. See Arakaki, 324 F.3d at 1086. This “identity of interest” 

rule remains on firm legal footing after Berger. See Berger, 142 S. Ct. 

at 2204 (acknowledging that some lower courts apply “a presumption of 

adequate representation in cases where a movant’s interests are identical 

to those of an existing party,” but declining to decide the viability of such 

a rule because it was inapplicable to the record before it).

Because we do not apply the “same ultimate objective” rule here, 

we offer no opinion as to whether it remains good law in light of Berger.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 17

ultimately amounts to a disagreement over litigation 

strategy. And “[w]hen a proposed intervenor has not alleged 

any substantive disagreement between it and the existing 

parties to the suit, and instead has rested its claim for 

intervention entirely upon a disagreement over litigation 

strategy or legal tactics, courts have been hesitant to accord 

the applicant full-party status.” League of United Latin Am. 

Citizens, 131 F.3d at 1306 (citations omitted). Therefore, 

Neverson’s assertion that she would not have agreed to the 

settlement is insufficient to show that Callahan did not 

adequately represent her interests.

Neverson also argues that her interests were not 

adequately represented because her case was formally 

litigated and Callahan’s was not. However, Callahan still 

obtained significant informal discovery prior to mediation, 

including copies of all of Brookdale’s relevant policies and 

procedures, three years’ worth of time and payroll data for a 

group of over 17,000 employees, and copies of related 

PAGA actions currently pending against Brookdale in 

California. Callahan also had access to the discovery 

produced in Neverson’s case and two other related cases. 

Under these circumstances, we are not persuaded by 

Neverson’s assertion that the absence of formal litigation in 

Callahan’s case left Callahan unable to adequately represent 

Neverson’s interests.

Neverson further argues that Callahan was not properly 

deputized to pursue certain claims that were a part of the 

settlement due to the statute of limitations having run on 

those claims. However, even if Neverson is right, she does 

not establish that she is the proper party to pursue the claims 

for which Callahan was not properly deputized. In light of 

this failure, whether Callahan was properly deputized to 

pursue certain claims she settled on behalf of the state is not 
18 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

relevant to whether Callahan adequately represented 

Neverson’s interests based on the three relevant factors. 

While the argument that Neverson was not properly 

deputized to pursue certain claims may be relevant to 

whether the district court abused its discretion in approving 

the settlement, we do not reach this issue on appeal.

For these reasons, we conclude that Neverson has failed 

to make the required showing that Callahan did not 

adequately represent her interests. We therefore affirm the 

district court’s denial of her motion to intervene as of right.

II. Permissive Intervention

We next consider whether the district court abused its 

discretion in denying Neverson permissive intervention. 

Under Federal Rule of Civil Procedure 24(b), a district court 

has discretion to permit intervention when the movant 

presents “(1) an independent ground for jurisdiction; (2) a 

timely motion; and (3) a common question of law and fact 

between the movant’s claim or defense and the main action.” 

Freedom from Religion Found, Inc., 644 F.3d at 843 

(quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 

473 (9th Cir. 1992)).

“If the trial court determines that the initial conditions 

for permissive intervention under rule 24(b)(1) or 24(b)(2) 

are met, it is then entitled to consider other factors in making 

its discretionary decision on the issue of permissive 

intervention.” Spangler v. Pasadena City Bd. of Educ., 

552 F.2d 1326, 1329 (9th Cir. 1977). The relevant additional 

factors include the following:

the nature and extent of the intervenors’ 

interest, their standing to raise relevant legal 

issues, the legal position they seek to 
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 19

advance, and its probable relation to the 

merits of the case. The court may also 

consider whether changes have occurred in 

the litigation so that intervention that was 

once denied should be reexamined, whether 

the intervenors’ interests are adequately 

represented by other parties, whether 

intervention will prolong or unduly delay the 

litigation, and whether parties seeking 

intervention will significantly contribute to 

full development of the underlying factual 

issues in the suit and to the just and equitable 

adjudication of the legal questions presented.

Id. (footnotes omitted); see also Donnelly, 159 F.3d at 412 

(describing these Spangler factors as “nonexclusive”).

The district court found that the three initial conditions 

for permissive intervention were met here but that “the 

discretionary factors governing intervention counsel 

strongly against intervention.” The district court first noted 

that because both Callahan and Neverson are deputized 

agents of the LWDA who assert the interests of the LWDA, 

they represent the same legal right and interest in the PAGA 

action. The district court next found that allowing Neverson 

to intervene would not significantly contribute to the factual 

development of issues in the case since Callahan had access 

to all discovery obtained in Neverson’s case and other 

related cases.

Neverson first argues that the fact that she and Callahan 

both represent the interests of the LWDA cannot be 

dispositive and should not have been considered in the 

district court’s analysis of the Spangler discretionary factors. 

She asserts that if this were dispositive, a PAGA plaintiff 
20 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

could never be granted permissive intervention in an 

overlapping PAGA action under Rule 24(b)(2). This result, 

she argues, would be contrary to the policy interests behind 

PAGA. But Spangler explicitly provides that the court may 

consider, inter alia, “the nature and extent of the intervenors’ 

interest . . . [and] whether the intervenors’ interests are 

adequately represented by other parties.” 552 F.2d at 1329. 

And in any event, this factor was not dispositive in the 

district court’s analysis, as the court also considered whether 

Neverson would “significantly contribute to full 

development of the underlying factual issues in the suit.” Id.

Thus, contrary to Neverson’s assertions, it does not follow 

from the district court’s decision that a PAGA plaintiff can 

never be granted permissive intervention in an overlapping 

PAGA case.

Neverson also argues that she should be granted 

permissive intervention because her independent analysis of 

the value of the PAGA claims would significantly contribute 

to the factual development of Callahan’s case. But again, 

Neverson promises much and delivers little. Indeed, she 

provides no factual basis for her determination that Callahan 

miscalculated the maximum PAGA penalties. Under these 

circumstances, the district court did not abuse its discretion 

in finding that Neverson would not significantly contribute 

to the factual issues in the case.

For these reasons, we conclude that the district court 

acted within its discretion in denying Neverson permissive 

intervention. We accordingly affirm the denial of 

Neverson’s motion to intervene.
CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES. 21

III. Right to Appeal the Approval of the PAGA 

Settlement

Because Neverson’s motion to intervene was properly 

denied, she never became a party to the PAGA action. And 

as a non-party to this action, she has no right to appeal the 

district court’s approval of the PAGA settlement. See Peck, 

25 F.4th at 1128.

Neverson argues that she has a right to appeal the 

settlement because “the weight of California authority 

supports non-parties having a substantive right to intervene 

in overlapping PAGA suits.” As an initial matter, we note 

that two of the three California state cases Neverson cites are 

consistent with this opinion. See Turrieta v. Lyft, Inc., 

284 Cal. Rptr. 3d 767, 778 (Ct. App. 2021) (affirming the 

trial court’s denial of intervention and finding that the 

proposed intervenors had no right to appeal the approval of 

the PAGA settlement); Uribe v. Crown Bldg. Maint., 

285 Cal. Rptr. 3d 759, 770–72 (Ct. App. 2021), as amended

(Oct. 26, 2021) (allowing an intervenor to challenge a PAGA 

settlement on appeal where the trial court granted 

intervention and that decision to allow intervention was not 

challenged on appeal). And to the extent that Moniz v. 

Adecco USA, Inc., 287 Cal. Rptr. 3d 107 (Ct. App. 2021), is 

inconsistent with our holding here, we note that Moniz

involved the application of California procedural rules while 

we apply federal procedural rules in this case. Compare id.

at 121 (“For purposes of appellate standing, an unnamed 

party may become a party to an action through intervention 

(Code Civ. Proc., § 387) or by filing an appealable motion 

to set aside and vacate the judgment.” (emphasis added)), 

with Robert Ito Farm, Inc. v. Cnty. of Maui, 842 F.3d 681, 

687 (9th Cir. 2016) (“[A] prospective intervenor does not 
22 CALLAHAN V. BROOKDALE SENIOR LIVING CMTIES.

become a party to the suit unless and until he is allowed to 

intervene.”).

The well-settled rule in federal court, as we noted in 

Peck, is that “only parties to a lawsuit, or those that properly 

become parties, may appeal an adverse judgment[.]” 

25 F.4th at 1126 (quoting Volkhoff, 945 F.3d at 1241). 

Though we have occasionally allowed a non-party to appeal 

when “‘exceptional circumstances’ warrant a departure from 

this general rule,” id. at 1129 (citation omitted), Neverson 

does not argue that such circumstances are present here.

Because Neverson lacks the right to appeal the PAGA 

settlement, we dismiss her appeal of the settlement approval 

and do not consider whether the district court abused its 

discretion in approving the settlement. See Peck, 25 F.4th at 

1128.

CONCLUSION

For the foregoing reasons, as to the first appeal, we 

affirm the district court’s denial of Neverson’s motion to 

intervene. We dismiss Neverson’s second appeal of the 

district court’s approval of the PAGA settlement because we 

conclude that she has no right to appeal.

AS TO THE FIRST APPEAL, AFFIRMED; AS TO 

THE SECOND APPEAL, DISMISSED.