Accurso v. In-N-Out Burgers

• Docket Number: A165320
• Decision Date: 29 August 2023
• Parties: RYAN ACCURSO, Plaintiff and Respondent, v. IN-N-OUT BURGERS, Defendant and Respondent; CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY ex rel. TOM PIPLACK et al., Movants and Appellants.
• Court: California Court of Appeals Court of Appeals

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RYAN ACCURSO, Plaintiff and Respondent,
v.
IN-N-OUT BURGERS, Defendant and Respondent;

CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY ex rel. TOM PIPLACK et al., Movants and Appellants.

A165320

California Court of Appeals, First District, Fourth Division

August 29, 2023

Superior Court of California, County of Sonoma No. SCV-268956 Hon. Jennifer V. Dollard Trial Judge

Counsel:

Aiman-Smith & Marcy, Randall B. Aiman-Smith, Reed W.L. Marcy, Hallie von Rock, Brent A. Robinson;

Lavi & Ebrahimian, Joseph Lavi, Jordan D. Bello, Vincent G. Granberry; Law Offices of Sahag Majarian II and Sahag Majarian II for Movants and Appellants.

Polk Kabat, Mark G. Humenik for Tracy Chen in her Representative Proxy and Private Attorney General Capacity on Behalf of the State of California as Amicus Curiae on behalf of Movants and Appellants.

Lebe Law, Jonathan M. Lebe, Zachary T. Gershman, Brielle D. Edborg for Plaintiff and Respondent.

Sheppard, Mullin, Richter &Hampton, Paul S. Cowie, John D. Ellis, Sami Hasan, Amanda E. Beckwith for Defendant and Respondent.

STREETER, J.

I. INTRODUCTION

Appellants Tom Piplack and Brianna Marie Taylor are lead plaintiffs in Private Attorneys General Act (PAGA) (Lab. Code, § 2698 et seq.) representative actions in Orange and Los Angeles Counties against respondent In-N-Out Burgers (In-N-Out). Upon learning of settlement negotiations in a subsequent, overlapping PAGA action brought by respondent Ryan Accurso against In-N-Out in Sonoma County, Piplack and Taylor filed a proposed complaint in intervention in the Sonoma County action, and moved to intervene under Code of Civil Procedure section 387 and

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for a stay.^[1] The trial court denied the motions, relying principally on Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th 955, review granted Jan. 5, 2022, S271721 (Turrieta) and distinguishing our decision in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56 (Moniz). Before us now is an appeal from Piplack and Taylor arguing that the denial of these two motions was erroneous. Accurso and In-N-Out have responded urging affirmance in separate briefs. We will vacate the denial order and remand for reconsideration.

II. BACKGROUND

Between February 2019 and December 2021, plaintiffs in four counties filed six separate PAGA actions against In-N-Out. All of the plaintiffs in these actions alleged violations of the Labor Code and sought civil penalties on behalf of the State of California. By August 2021, when Accurso's case in Sonoma County was filed, two PAGA cases against In-N-Out were pending in Los Angeles County; one case was pending in San Bernadino County; and one case was pending in Orange County.

Piplack's case (which was originally filed in San Francisco County and then transferred to Orange County) was the first of the six PAGA actions to be filed against In-N-Out. Following the filing of Piplack's case, additional PAGA lawsuits were filed in Los Angeles (Taylor, Becerra) and San Bernadino County (Carrera). Accurso was the fifth of the six to be filed, followed by Andrews in Los Angeles County.

The operative complaint in Piplack alleges a single PAGA claim arising from In-N-Out's policy of requiring its restaurant employees to report to work each shift wearing white pants and failing to reimburse employees for both

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the cost of purchasing those pants and the cost of cleaning them after each shift. Legally, plaintiff Piplack's uniform expense theory is based primarily on alleged violation of Labor Code section 2802, a statute requiring reimbursement of employees' business expenses while discharging their duties.

Without detailing the exact contours of each of the six cases, suffice it to say that, as originally filed, some of the actions made particularized factual allegations of wage-and-hour violations relating to policies requiring employees to wear uniforms (e.g., Piplack in Orange County, Taylor in Los Angeles County^[2]) while others made more generalized allegations of violations that might arguably encompass uniform-wearing policies but do not specifically mention that topic (e.g., Accurso in Sonoma County).^[3]

All parties to this appeal concede overlap among the cases, presumably because each case pleads one or more PAGA claims arising from Labor Code violations suffered by current or former In-N-Out employees under common legal theories. The cases all allege, for example, failure to pay minimum wages (Lab. Code, §§ 1194, 1197.1), failure to pay overtime (id., §§ 510, 1194, 1198),

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failure to pay all wages on time (id., §§ 204, 210), failure to provide accurate wage statements (id., §§ 226, subd. (a), 226.3), and failure to pay all wages when due upon separation of employment (id., §§ 201-203).^[4]

When plaintiff's counsel in Piplack and Taylor learned of mediation activity in Accurso, they, along with counsel for PAGA claimants in Andrews, Becerra, and Carrera-attempted to negotiate a collaborative arrangement with plaintiff Accurso's counsel to settle all pending PAGA claims with In-N-Out on a global basis. But the negotiations foundered when no agreement could be reached on the proportionate sharing of attorney's fees recovery.

Plaintiff Accurso then proceeded to mediate his case with In-N-Out individually, without the participation of plaintiffs Piplack, Taylor, or any of the other PAGA claimants against In-N-Out. In light of what appeared to be an imminent settlement, plaintiffs Piplack and Taylor moved to intervene in Accurso. They also requested a stay of proceedings in Accurso based on the doctrine of exclusive concurrent jurisdiction (see Shaw v. Superior Court (2022) 78 Cal.App.5th 245 (Shaw)), arguing that Accurso should be stayed as a later-filed action.

According to post-briefing evidence submitted by counsel for Piplack and Taylor (their final email exchange with Accurso's counsel in the unsuccessful discussions of a joint approach to global settlement), the mediation produced a settlement that would "resolve all the PAGA claims against [In-N-Out] for $2.05 million," with a release that would "wipe out" all PAGA claims against In-N-Out. At the hearing on the motion to intervene,

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Accurso's counsel implicitly conceded an agreed case resolution, telling the court, "we think we have obtained a very, very favorable settlement." Counsel for In-N-Out agreed, stating, "I would just echo what plaintiff's counsel said."

The trial court declined to consider any post-briefing evidence of the alleged settlement, concluded that Piplack and Taylor lacked standing to intervene, and on that basis denied both motions. It explained, "[T]he Court finds that neither [Piplack nor Taylor] has a personal interest in the PAGA claims being prosecuted by Accurso, but rather the interest lies with the State, as the real party in interest, and thus [Piplack and Taylor] do not have standing to intervene." "[L]ikewise," the court ruled, they "do not have standing to request a stay."

In so ruling, the trial court followed Turrieta. It noted that our Supreme Court has granted review in Turrieta, but found the Court of Appeal's reasoning in Turrieta to be persuasive. While acknowledging decisions in tension with Turrieta-including ours in Moniz-the court concluded that none of these cases addresses the issue presented here: "[D]o non-party Plaintiffs with overlapping PAGA claims have standing to intervene?'

Piplack and Taylor appealed the order denying their motion to intervene.^[5] They also filed a petition for a writ of prohibition challenging the denial of their request to stay the proceedings in Accurso. We granted a stay

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of supersedeas pending our resolution of the appeal and dismissed the writ petition as moot. We now conclude the court was correct to deny Piplack and Taylor's section 387 motion to the extent it sought intervention as-of-right, but we vacate the order to the extent Piplack and Taylor sought permissive intervention and remand for further consideration of that issue as well as the issue of a possible stay in some form.^[6]

III. DISCUSSION

A. Legal Principles: Intervention

1. Intervention Statute

For more than a century following the enactment of section 387 in 1872, intervention was permitted on a purely discretionary basis. With some minor wording variations as it evolved, the statute stated, "At any time before trial, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding." (Former § 387^[7], italics added.) That changed in

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1977, when the Legislature amended section 387^[8] to conform the statute to the structure of Federal Rules of Civil Procedure, rule 24 (28 U.S.C.), which provides for intervention as-of-right in some instances under rule 24(a) (mandatory intervention), and intervention in the discretion of the court in other instances under rule 24(b) (permissive intervention).

Section 387, subdivision (d) now provides: "(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding [where] . . . [¶] . . . [¶] (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.^[9][¶] (2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both."

This statute has an extensive case law gloss. It is designed to "protect[] the interests of others affected by the judgment, obviating delay

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and multiplicity." (People v. Superior Court...