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1 Carolyn H. Cottrell (SBN 166977)
David C. Leimbach (SBN 265409)
2 SCHNEIDER WALLACE
COTTRELL KONECKY LLP
3 2000 Powell Street, Suite 1400
Emeryville, California 94608
4 Telephone: (415) 421-7100
Facsimile: (415) 421-7105
5 ccottrell@schneiderwallace.com
dleimbach@schneiderwallace.com
6
Attorneys for Plaintiff Rachel Moniz,
7 the State of California, and Aggrieved Employees
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SAN MATEO
10
11 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736
California and aggrieved employees,
12 Assigned for All Purposes to
Plaintiff, Hon. Marie S. Weiner, Dept. 2
13
vs. PLAINTIFF’S OPPOSITION TO MOTION
14 BY PAOLA CORREA AND HER
ADECCO USA, INC., and DOES 1-50, ATTORNEYS FOR FEES AND
15 inclusive, ENHANCEMENT/SERVICE AWARD
16 Defendants. Date: April 25, 2023
Time: 2:00 p.m.
17 Place: Dept. 2
Judge: Hon. Marie S. Weiner
18
Complaint Filed April 18, 2017
19 Trial Date: Vacated
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
TABLE OF CONTENTS
1
2
I. INTRODUCTION ............................................................................................................................ 1
3
II. ARGUMENT ................................................................................................................................... 3
4
A. Correa And Her Counsel May Not Seek Fees Under CCP 1021.5. ............................................. 3
5
1. Legal Standard Under CCP 1021.5........................................................................................ 3
6 2. Correa is Not a Successful Party. ........................................................................................... 3
7 3. Correa Conferred No Benefit, Significant or Otherwise, on the
Public or Anyone Else. .......................................................................................................... 5
8 4. Individuals May Not Obtain Fees Under CCP 1021.5 When They
9 Have Significant Financial Incentives in the Outcome of a Litigation. ................................. 8
5. As a Matter of Law, Correa is Prohibited From Seeking its Fees
10 From The Global Recovery, Which Necessarily Includes the Fees
Allocated to Moniz’s Attorneys. ............................................................................................ 9
11
B. Correa is Not a “Prevailing Employee” Under Labor Code Section
12 2699(g)(1). ................................................................................................................................. 10
13 C. While Correa Should Not Receive Any Fees as a Matter of Fact,
14 Law, and Common Sense, to the Extent She Receives Anything,
There is No Logical Argument that Correa Would Receive More
15 than $17,290.52. ......................................................................................................................... 12
16 III. CONCLUSION .............................................................................................................................. 13
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
TABLE OF AUTHORITIES
1
2 Arias v. Superior Court,
(2009) 46 Cal.4th 969 ........................................................................................................................ 12
3
City of Santa Monica v. Stewart,
4
(2005) 126 Cal.App.4th 43 .................................................................................................................. 4
5
Conservatorship of Whitley,
6 (2010) 50 Cal.4th 1206 ........................................................................................................................ 9
7 Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc.,
8 (2005) 127 Cal. App. 4th 387 .............................................................................................................. 6
9 County of Colusa v. California Wildlife Conservation Bd.,
145 Cal.App.4th 637(2006) ................................................................................................................. 3
10
Crawford v. Board of Education,
11 (1988) 200 Cal.App.3d 1397 ........................................................................................................... 4, 7
12
Folsom v. Butte County Assn. of Governments,
13 (1982) 32 Cal.3d 668 ....................................................................................................................... 4, 7
14 Iskanian v. CLS Transportation Los Angeles, LLC,
(2014) 59 Cal. 4th 348 ....................................................................................................................... 12
15
16 Karuk Tribe v. California Regional Water Quality Control Board,
(2010) 183 Cal.App.4th 330 ................................................................................................................ 6
17
Maria P. v. Riles,
18 (1987) 43 Cal.3d 1281 ......................................................................................................................... 4
19
People v. Investco Management & Development LLC.,
20 (2018) 22 Cal. App. 5th 443 ................................................................................................... 3, 4, 5, 10
21 Robinson v. City of Chowchilla
(2011) 202 Cal.App.4th 382 ................................................................................................................ 3
22
Sample v. Big Lots Stores, Inc.,
23
(N.D. Cal. Nov. 29, 2010),
24 2010 U.S. Dist. LEXIS 131130 ......................................................................................................... 12
25 Savaglio v. Wal-Mart Stores,
(2007) 149 Cal.App.4th 588 ................................................................................................................ 5
26
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
Weiss vs. City of Los Angeles,
1 (2016) 2 Cal.App.5th 194 .................................................................................................................... 5
2
Woodland Hills Residents Assn., Inc. v. City Council,
3 (1979) 23 Cal.3d 917 ........................................................................................................................... 6
4
Statutes
5
6 Cal. Lab. Code § 2699 ............................................................................................................... 10, 11, 12
7 Cal. Lab. Code § 2698 ............................................................................................................... 4, 7, 9, 12
8 Code Civ. Proc. § 1021.5 ................................................................................................................ passim
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 I. INTRODUCTION
2 At long last, we have arrived at what the past four years of frivolous litigation have been all
3 about: Correa and her attorney’s never-ending quest for an unearned payday. But as this Court has held
4 before and must now hold again, a shameless shakedown that adds nothing to a settlement, delays
5 payment to aggrieved employees and the State, and does nothing but harass the parties and the Court
6 does not satisfy any standard for an award of fees.
7 Correa did nothing to contribute to this settlement. Correa did not successfully litigate numerous
8 dispositive motions; Moniz did. Correa had no role in negotiating or seeking approval of the settlement
9 – that was all Moniz as well. Indeed, looking at all of Moniz’s pivotal successes – thereby forcing
10 Adecco to agree to an exceptional settlement – Correa repeatedly failed in litigating those same issues
11 throughout its hapless Doe litigation.
12 Even worse, for every success Moniz had, Correa sought to undermine it. While Moniz had
13 always sought civil penalties corresponding to the work experiences of Associates, Correa undermined
14 the PAGA’s law enforcement objectives by attempting to prevent Moniz from doing so, even after
15 Correa failed in litigating those claims. And when Moniz obtained a favorable settlement following
16 these dispositive motion victories, Correa flat-out lied to the Labor Workforce Development Agency,
17 pedaling hyperbolic conspiracy theories of collusion and made-up settlements, conning an agency of
18 limited resources into wasting its valuable time and energy chasing an edifice of Correa’s own creation.
19 Of course, as this Court is well-aware, that was far from Correa’s only frivolous tactic to thwart
20 this settlement. Whether it’s the three failed motions to intervene, multiple appeals, numerous motions
21 to vacate the judgment, this second motion for fees and everything in between, Correa has done nothing
22 but take actions antagonistic to this settlement, aggrieved employees, and the State of California. One
23 might say it is laughable that Correa would argue she somehow contributed to the positive outcome in
24 this case, but now that we are in the fourth year of this never-ending shakedown, the joke has grown a
25 bit stale.
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28 __________________________________________________________________________________
1
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 The record in this case confirms that awarding Correa any amount of fees would be a gross
2 miscarriage of justice.1 Correa cannot possibly be viewed as a “prevailing party” when she is neither a
3 party nor did she prevail at anything other than wasting this Court’s time and resources. She certainly
4 did not “prevail” in unwinding or meaningfully altering the settlement in this case. The settlement is
5 virtually identical to the one executed all the way back in 2019. Indeed, Correa did not even “prevail”
6 in her own case.
7 There should be no question that the past four years of litigation have nothing to do with the
8 adequacy of the settlement in this case, and everything to do with Correa’s efforts to bootstrap her
9 failures to Moniz’s successes. The Court need not take Moniz’s word for it. As this Court has
10 recognized,
11 Correa’s and her counsel’s assertion that they are ‘prevailing parties’ entitled to fees and
12 costs in this Moniz case because the Moniz settlement is attributable to their efforts in
Doe defies common sense. They did not prevail on these claims in Doe, were never
13 parties in Moniz, were not involved in the settlement of these claims, and cannot take
credit for claims arising from Plaintiff Moniz’s first-filed LWDA PAGA notice.
14
(Moniz v. Adecco, Case No. 17-cv-01736, Order Re: Attorneys’ Fees, Costs and Incentive Awards,
15
January 15, 2020, at pp. 16-17). Far from providing any benefit or contribution to the outcome in this
16
case,
17 the activities of Correa and her attorneys in this lawsuit have not been to the substantial
benefit of the State or the Aggrieved Employees. Indeed, they caused delay, harassment,
18
additional expense and time by Moniz and her attorneys, and achieved nothing that was
19 not already achieved by Moniz and her attorneys. The efforts of Correa and her attorneys
did not increase the amount of the settlement or its benefits. In their own lawsuit in San
20 Francisco County Superior Court they lost the claims that they now assert are the basis
for the award of fees and costs to them in this lawsuit. It is evident that the primary
21 purpose of Correa’s activities in this Moniz case was to try and create a basis upon which
Correa and her counsel would then demand payment for fees and awards.
22
23
24 1
Considerable ink has been spilled by the parties and the Court on Correa’s frivolous litigation tactics –
tactics having the singular purpose of later seeking fees. There is hardly enough space within page
25 limitations to detail it all. However, it has been briefed countless times, this Court has recounted those
facts in as many orders, and Moniz suspects the Court does not need to read it all again. Much of it is
26 detailed in this Court’s January 15, 2020 Order denying Correa’s requests for fees, costs, and incentive
27 awards, and the parties’ briefing related thereto. Moniz presumes the Court is therefore more than
familiar with this context and incorporates these findings by reference.
28 __________________________________________________________________________________
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
(Id. at p. 15.)
1
This Court has recognized that everything Correa has done over the past four years has nothing
2
to do with aggrieved employees, the State, or the PAGA. It is about Correa’s attorneys’ pursuit of
3
compensation they did nothing to earn. That is all. The Court should simply repeat the words it has
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already spoken about Correa and her attorneys, and summarily deny Correa’s requests for fees and
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incentive awards.
6
II. ARGUMENT
7
8 A. Correa And Her Counsel May Not Seek Fees Under CCP 1021.5.
9 1. Legal Standard Under CCP 1021.5.
10 Code of Civil Procedure “[s]ection 1021.5 codifies California's version of the private attorney
11 general doctrine, which is an exception to the usual rule that each party bears its own attorney fees.
12 [Citation.] The purpose of the doctrine is to encourage suits enforcing important public policies by
13 providing substantial attorney fees to successful litigants in such cases. [Citation.]” (Robinson v. City of
14 Chowchilla (2011) 202 Cal.App.4th 382, 390.)
15 The statutory language of section 1021.5 can be divided into the following separate elements:
16 A superior court may award attorney fees to (1) a successful party in any action (2) that
17 has resulted in the enforcement of an important right affecting the public interest if (3) a
significant benefit has been conferred on the general public or a large class of persons,
18 (4) private enforcement is necessary because no public entity or official pursued
enforcement or litigation, (5) the financial burden of private enforcement is such as to
19 make a fee award appropriate, and (6) in the interests of justice the fees should not be
paid out of the recovery.”
20
(People v. Investco Management & Development LLC (2018) 22 Cal. App. 5th 443, 464; quoting County
21
of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 648) (internal citations
22
and quotations omitted). “As section 1021.5 states the criteria in the conjunctive, each of the statutory
23
criteria must be met to justify a fee award.” (Investco Management & Development LLC, 22 Cal. App.
24
5th at 464.)
25
2. Correa is Not a Successful Party.
26 Correa is not a “successful party” within the definition of CCP 1021.5 Moniz recognizes that
27 under CCP 1021.5, a “rigid” definition of “party” is not necessarily required. (Investco, 22 Cal. App.
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 5th at 458-59.) But this does not mean, as Correa suggests, that the only requirement is an individual
2 be “clearly interested”2 in the action, in some colloquial sense.3
3 Instead, a successful party is one who “succeed[s] on any significant issue in litigation which
4 achieves some of the benefit the parties sought in bringing suit.” [Citation.]” (Investco, 22 Cal. App.
5 5th at 459; quoting Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) To determine whether a party is
6 “successful,” courts look at the outcomes the parties sought in commencing the action, the situation
7 before the party commenced the suit, and the situation today. (Folsom v. Butte County Assn. of
8 Governments (1982) 32 Cal.3d 668, 685, fn. 31.) If the “success” is “ancillary” or “entirely unrelated
9 to the objective of the lawsuit,” the “success” is not of the sort contemplated under Section 1021.5.
10 (Investco Management & Development LLC, 22 Cal. App. 5th at 459 [citing Savaglio, supra, 149
11 Cal.App.4th at p. 603.].)
12
13
2
Correa’s citation to Investco for this proposition is misleading. Investco used this phrase in just a single
14 instance to explain that formal intervention is not necessarily required to be a “party” under CCP 1021.5,
15 writing that “[a]ppellants cite no authority requiring such clearly interested parties to formally move to
intervene in order to obtain section 1021.5 fees, and under the circumstances presented here, we decline
16 to require it.” (Investco, 22 Cal. App. 5th at 459.) This is not in any way a “legal standard” – apparently,
a colloquial one Correa thinks she can satisfy with any attenuated “interest.” To the contrary, this dictum
17 was only necessary because Courts often required satisfaction of intervention standards before such fees
could be awarded. (See, e.g., City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 87 [“[a] party
18 who satisfies the criteria for intervention and who contributes to the success of public interest litigation
19 should be entitled to an award of attorneys' fees on the same terms as any other party.”]; Crawford,
supra, 200 Cal.App.3d at p. 1407, fn. omitted [relying on federal decisional authority holding that
20 interveners who make “a clear showing of some unique contribution to the litigation” may be entitled
to fees under § 1021.5].)
21
3
If Correa’s status as a deputized employee and nothing more positioned her as an “interested party”
22 able to seek fees in a separate PAGA settlement, it takes little imagination to predict that California
23 courts would become saturated with a cottage industry of PAGA attorney fee litigation. Grifters such as
Correa and her attorneys could simply monitor LWDA filings, file their own LWDA letter and do
24 nothing, wait for a related PAGA action to settle, and then extort the settlement. Such an untenable
outcome would completely strip the PAGA of its law enforcement objectives. Attorneys will have no
25 incentive whatsoever to vigorously prosecute complicated and expensive aggregate PAGA proceedings.
After all, no sane attorney would invest the considerable time and resources required to successfully
26 prosecute a PAGA claim, risking that she would get nothing if she fails, when even if she does succeed
27 in the end, five other attorneys would be entitled to come out of the woodwork and confiscate her
compensation simply because they represented a deputized employee in some other failed litigation.
28 __________________________________________________________________________________
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 Correa plainly does not qualify as a “successful party” under CCP 1021.5. The benefits sought
2 by this lawsuit – indeed, the purpose of Correa’s failed Doe lawsuit – is civil penalties and injunctive
3 relief. Before Moniz’s lawsuit was filed, it was alleged that Adecco had violated and was continuing
4 to violate various provisions of the Labor Code. Before Moniz’s lawsuit was filed, the State had not
5 obtained any civil penalties for these alleged wrongs. And now? Both circumstances have changed,
6 without any contribution from Correa. Correa did not obtain any civil penalties. And Correa did not
7 obtain any injunctive relief. But Moniz did. Moniz obtained injunctive relief to prevent these wrongs
8 from happening in the future. Moniz obtained the civil penalties designed to deter and punish Adecco
9 for these wrongs. Correa contributed nothing to these core inquiries for whether she could possibly be
10 viewed as a “successful party.”
11 But even if we ignored the correct inquiry under Section 1021.5 – the purpose of the lawsuit –
12 and looked solely at Correa’s endeavors in this case, it cannot seriously be disputed that Correa failed.
13 Correa did not spend the past four years wasting the parties’ and Court’s time and resources so she
14 could litigate some academic procedural issue on appeal. And the past four years surely was not about
15 putting an extra $1.65 in the pockets of Associates. Correa’s sole purpose in the Moniz proceedings
16 was to unwind the settlement because Correa thinks this case is worth tens of billions of dollars, and
17 4.5 million was not enough. Correa failed. The settlement has been approved again, in virtually the
18 same form as it was back in 2019. When it comes to Correa’s involvement in this case, Moniz is plainly
19 the “prevailing party” against Correa, not the other way around.
20
3. Correa Conferred No Benefit, Significant or Otherwise, on the Public or
21 Anyone Else.
22 Section 1021.5 permits a fee award “in any action which has resulted in the enforcement of an
23 important right affecting the public interest’ regardless of its source—constitutional, statutory or other.’”
24 [Citation.]’” (Weiss, supra, 2 Cal.App.5th at p. 218.) “Although section 1021.5 provides no concrete
25 standard or test against which a court may determine whether the right vindicated in a particular case is
26 sufficiently ‘important’ to justify a private attorney general fee award … the Legislature obviously
27 intended that there be some selectivity, on a qualitative basis, in the award of attorney fees under the
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 statute, for section 1021.5 specifically alludes to litigation which vindicates ‘important’ rights and does
2 not encompass the enforcement of ‘any’ or ‘all’ statutory rights. Thus, again like the federal cases, the
3 statute directs the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal
4 importance’ of the right involved.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23
5 Cal.3d 917, 935.) In adjudicating a motion for attorney fees under section 1021.5, a trial court should
6 “determine the significance of the benefit, as well as the size of the class receiving benefit, from a
7 realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a
8 particular case.”4 (Woodland Hills, at pp. 939–940.)
9 The “significant benefits” that must be shown to obtain fees under Section 1021.5 do not include
10 anything that debatably benefits someone. The benefits successfully obtained must be the same benefits
11 pursued in a lawsuit on the public’s behalf. (Woodland Hills Residents Assn., Inc. v City Council (1979)
12 23 Cal.3d 917.) That a party may have, for example, successfully litigated an academic procedural issue
13 tangentially related to the causes of action pled in an actual lawsuit does not concern the type of
14 “substantial benefit” contemplated by Section 1021.5. (Investco Management & Development LLC, 22
15 Cal. App. 5th at 464) [“procedural successes that did not result in any substantive changes” do not justify
16 fees under Section 1021.5.].) Nominal successes that do not have a material impact on the outcome of a
17 case do not qualify. (See, e.g., Karuk Tribe, supra, 183 Cal.App.4th at p. 369 [the fee claimants simply
18 obtained a court order requiring a regional water quality control board to provide an “augmented
19 explanation” on the same decision it had previously made]; Consumer Cause, supra, 127 Cal.App.4th
20 at p. 404 [the fee applicant's successful objection to a class action settlement simply “[f]ree[d] [the]
21 putative class members from the constraints of a proposed settlement agreement they had the right to
22 disregard by exercising their opt-out right.”].) Attorneys’ fees should not be awarded where, as here, the
23
24 4
Unsurprisingly, Correa omits any discussion of “all of the relevant surrounding circumstances” and
any realistic assessment thereof from her request. That is no doubt because a realistic assessment of
25 the surrounding circumstances would reveal that Correa has continually filed vexatious motions in this
case, all of which have been to oppose the substantive relief provided by the Parties’ Settlement. In no
26
way would a “realistic assessment of all the relevant surrounding circumstances” justify a providing
27 Correa or her attorneys with a single penny.
28 __________________________________________________________________________________
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 party’s “participation was unnecessary in light of the efforts of other prevailing litigants” or if the party
2 “contributed little or nothing of substance in producing [the] outcome.” (Crawford v. Bd. Of Education
3 (1988) 200 Cal. App. 3d 1397, 1406 [quoting Folsom v. Butte County Ass'n of Governments (1982) 32
4 Cal. 3d 668, 686].)
5 Here, the purported “benefits” Correa suggests she conferred on this case simply are not of the
6 sort contemplated by Section 1021.5 – that is, to the extent any benefits of any kind were conferred, a
7 proposition with which Moniz categorically rejects. For example, Correa argues she successfully
8 litigated a preemption issue in her Doe appeal. But even ignoring the fact that this litigation was in a
9 different case, Correa ignores the fact that Moniz had already successfully litigated that issue in this
10 case. Correa argues she “established the settlement standard for PAGA settlements.” (Correa Mot., 15:
11 5.) But this is false. This Court established the same standard that was affirmed in the Moniz appeal – a
12 standard suggested by the actual parties in this case. Correa also argues she impacted the release period.
13 But this too is false. The parties always intended to create a release period that is the same as it is today,
14 and the Court – not Correa – ordered the parties to make minor modifications to the settlement agreement
15 to make what was always the parties’ intentions a bit clearer. All the things for which Correa would
16 claim credit were in fact accomplished completely independent of Correa. In other words, Correa’s
17 “participation was unnecessary in light of the efforts of other prevailing litigants” and Correa
18 “contributed little or nothing of substance in producing [the] outcome.” (Crawford v. Bd. Of Education
19 (1988) 200 Cal. App. 3d 1397, 1406.)
20 Of course, Correa notes that as a result of her relentless efforts to thwart the settlement in this
21 case, the parties ultimately decided to reallocate $100,000 between and among the various aggrieved
22 employees at issue. One hundred thousand dollars, out of a settlement of almost 4.6 million. To put it
23 another way, Correa’s four years of harassment changed nothing about the settlement, other than to take
24 some money from Colleagues and provide Associates with an additional $1.65 each.
25 To be clear, Correa did not “obtain” $100,000 outside of what Moniz obtained. Correa’s
26 involvement simply led – through many degrees of separation – to a reallocation of a tiny fraction of the
27 settlement; approximately 2.2%. This is the “significant benefit” that Correa suggests entitles her and
28 __________________________________________________________________________________
7
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 her attorneys to $1,166,031 out of $1,500,000 in attorneys’ fees. Correa wants 78% of Moniz’s
2 attorneys’ fees, because after four years and nearly a half a million dollars in fees that Moniz has
3 incurred opposing Correa’s ruse, 2.2% of the settlement was shuffled from one pocket to another, and
4 those “benefitting” aggrieved employees received an extra buck and a half. This argument cannot be
5 taken seriously.5
6
4. Individuals May Not Obtain Fees Under CCP 1021.5 When They Have
7 Significant Financial Incentives in the Outcome of a Litigation.
8 Sometimes, common aggregate proceedings – such as class actions or PAGA cases – overlap
9 and proceed separately. Often, one of these cases will proceed more favorably than the other.
10 Unsurprisingly, the case that realizes more successes (like Moniz) is more likely to settle than a similar
11 case defined by failure (Like Correa). But Section 1021.5 was never intended to allow losing plaintiffs
12
5
That Correa would request a lodestar multiplier is absurd and completely ignores her failures in
13 both this case and her own. Correa sought, time and again, to completely unwind the settlement. Correa
failed. Moniz sought to preserve the settlement. She succeeded. Because Moniz protected the settlement
14 in virtually every aspect, she is the prevailing party with respect to the past four years of litigation
against Correa.
15
While Moniz prevailed against Correa, it came at a great cost. Moniz’s counsel has incurred
16 $437,951.00 in fees since the settlement was first approved, and her current lodestar sits at $1,469,117.
(See Declaration of David C. Leimbach, ¶ 6-7.) Thus, even if the Court determines Correa “prevailed”
17 in some small way, any request for fees must be measured against the fact that Moniz overwhelmingly
prevailed against Correa in the only way that actually matters, and incurred substantial fees in doing so.
18 Such an evaluation should lead the Court to conclude that Correa is not entitled to any fees.
Indeed, even the rates Correa seeks are typically reserved for those at the highest levels of their
19
profession, not attorneys who make a living extorting other settlements. The number of hours expended
20 in this case cannot possibly be justified, given that Correa has failed in her challenge to this settlement
in virtually every respect. The hours claimed and rates charged cannot be justified by Correa’s endless
21 string of failures – both in this case and in Doe.
Similarly, Correa’s request for an enhancement or service award has no basis in law, fact, or
22 common sense, and should be denied for the same reasons that Correa’s attorneys are not entitled to any
23 fees. Indeed, it is particularly odd that Correa’s attorneys would request an “incentive/service” award in
this case. Counsel for Correa was present at the recent hearing on Moniz’s motion to approve the
24 settlement, and this Court made clear that the very concept of an “enhancement/service” award does not
apply to PAGA proceedings, and the additional payment Moniz would receive was not an
25 “enhancement/service” award, but instead was given in exchange for her executing a general release.
Moniz seriously doubts Correa is proposing to release any and all claims she may have against Adecco,
26 and to be compensated for these individual claims through the global fund in this case. Failing that, as
27 this Court recently explained to Correa’s attorneys, Correa is not entitled to a “service/enhancement”
award as a matter of basic PAGA law.
28 __________________________________________________________________________________
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PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 to seek compensation from winning plaintiffs. Section 1021.5 is not a vehicle for parties to potentially
2 valuable cases to seek compensation in a different case when they lose. Case law interpreting the
3 requirements of Section 1021.5 confirm as much.
4 “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant's
5 legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed
6 a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’ [Citation.]”’ [Citation.]
7 ‘This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit.’
8 [Citation.]” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215. “‘Code of Civil Procedure
9 section 1021.5 is intended to provide an incentive for private plaintiffs to bring public interest suits when
10 their personal stake in the outcome is insufficient to warrant incurring the costs of litigation.’” (Whitley,
11 supra, 50 Cal.4th at p. 1221.)
12 Multi-million-dollar PAGA actions do not qualify as the type of public interest suit where a
13 plaintiff’s personal stake is insufficient to warrant incurring the costs of litigation. This is precisely why
14 attorneys routinely bring these cases: if they are successful, the financial rewards can be significant.
15 Indeed, given that Correa apparently believes this case is worth tens of billions of dollars, she cannot
16 now be heard to argue that this is the type of financial loss-leader warranting a public-interest fee award
17 under Section 1021.5.
18
5. As a Matter of Law, Correa is Prohibited From Seeking its Fees From The
19
Global Recovery, Which Necessarily Includes the Fees Allocated to Moniz’s
20 Attorneys.
21 A critical requirement for awarding any fees under Section 1021.5 is that the fees cannot come
th
22 from a global recovery. (People v. Investco Management & Development LLC (2018) 22 Cal. App. 5
23 443 [“such fees should not in the interest of justice be paid out of the recovery if any."].).
24 Throughout its brief, Correa insists the Court can simply “award fees from the common fund.”
25 (Correa’s Mot., 13: 16-17; see also id. at pp. 14:3-7 [“The Court can also do some combination of both,
26 awarding fees against the losing party as well as from the common fund.”]; 14: 8-10 [“or from the
27
28 __________________________________________________________________________________
9
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 common fund after the distributed amounts are returned to the common fund.”].) But
2 Correa is mistaken.
3 Correa may not seek the attorneys’ fees from the common fund. This is true whether Correa is
4 seeking just those fees that have been allocated to Moniz’s attorneys, or fees as part of the broader fund.
5 The reason is simple. The common fund is just that: a single, common fund; a single common
6 “recovery.” Moniz did not obtain separate “recoveries” for civil penalties given to the State; civil
7 penalties given to aggrieved employees; general releases or enhancement awards for the representative
8 plaintiff; and then attorneys’ fees. Moniz negotiated, and the Court approved, a single 4.5-million-dollar
9 settlement, which resolved all claims at issue, including for attorneys’ fees. Moniz did not dictate how
10 much in fees she would receive; the Court did. The Court did so by awarding Moniz a portion of the
11 global fund, which is permissible under the California Labor Code and other authorities for actual parties
12 to a settlement. But because Moniz’s fees are inexorably intertwined with the common fund as part of a
13 single “recovery,” Correa is statutorily prohibited from seeking her fees from any part of the 4.5 million
14 dollar settlement.
15
B. Correa is Not a “Prevailing Employee” Under Labor Code Section 2699(g)(1).
16
Labor Code Section 2699 has not been litigated with regards to attorney fees. Correa has not
17
cited any case law dealing with attorneys’ fees under Section 2699(g)(1) in any context – let alone case
18
law concerning Correa’s efforts to use this statute to obtain fees in a completely separate case, and to
19
take those fees from another prevailing employee. Outside of expressing her belief that she has
20
somehow “prevailed” in this case and is otherwise an “employee,” Correa makes no argument and
21
offers no authority to support this brazen request under Section 2699(g).6 Nor could she.
22
Correa’s token reference to 2699(g) omits critical context to the statute. In full, Section
23
2699(g)(1) states that:
24
25
6
Again, and as discussed above, Correa cannot be considered a “prevailing employee” against Moniz.
26 Because the settlement ultimately approved is virtually identical to the one approved back in 2019 and
27 Correa failed in her singular goal of unwinding the settlement, Moniz is plainly the “prevailing
employee” against Correa.
28 __________________________________________________________________________________
10
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
Except as provided in paragraph (2), an aggrieved employee may recover the civil
1 penalty described in subdivision (f) in a civil action pursuant to the procedures specified
2 in Section 2699.3 filed on behalf of himself or herself and other current or former
employees against whom one or more of the alleged violations was committed. Any
3 employee who prevails in any action shall be entitled to an award of reasonable attorney’s
fees and costs ….
4
Cal. Lab. Code § 2699(g)(1).
5
Section 2699(g)(1) does not, as Correa apparently believes, authorize an award of attorneys’ fees
6
any time an employee “prevails” in any random endeavor. As a necessary predicate to the pursuit of
7
fees under 2699(g)(1), an employee must first “recover [] civil penalt[ies] … in a civil action” against
8
the individual or entity that committed the violations. (Cal. Lab. Code § 2699(g)(1).)
9
Plainly, none of this has happened here. Correa did not obtain any civil penalties in this case
10
against Adecco – the only employer at issue in this case. But this is the only way to obtain fees under
11
Section 2699(g). Correa does not even try to argue she has done so here. And as it pertains to Moniz,
12
even if Correa somehow met other requirements for the statute, Section 2699(g)(1) only authorizes
13
pursuit of fees from the employer who committed the violations. Nothing in the plain language of
14
2699(g) or any other authority could conceivably authorize the pursuit of attorneys’ fees from an
15
employee who successfully filed a civil action and obtained civil penalties against an employer.
16
Indeed, the fact that Correa’s apparently believes she can seek attorney’s fees from Moniz under
17
2699(g) confirms she does not understand the basic tenants of the PAGA. A PAGA claim does not
18
concern the vindication of individual rights; it “is fundamentally a law enforcement action that
19
substitutes for an action brought by the government itself.” (Iskanian, supra, 59 Cal.4th at p. 394; Arias,
20
supra, 46 Cal.4th at 986.) Unlike class actions, "a PAGA claim serves to vindicate the public through
21
the imposition of civil penalties as opposed to conferring a private benefit upon the plaintiff and the
22
represented employees." (Sample v. Big Lots Stores, Inc. (N.D. Cal. Nov. 29, 2010) 2010 U.S. Dist.
23
LEXIS 131130, at *8.)
24
“An employee plaintiff suing ... under the [PAGA] does so as the proxy or agent of the state's
25
labor law enforcement agencies.” (Id. at 381, quoting Arias, supra, 46 Cal.4th at p. 985.) “In a lawsuit
26
brought under the act, the employee plaintiff represents the same legal right and interest as state labor
27
28 __________________________________________________________________________________
11
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 law enforcement agencies—namely, recovery of civil penalties that otherwise would have been
2 assessed and collected by the Labor Workforce Development Agency.” (Id.) “A PAGA representative
3 action is therefore a type of qui tam action.” (Iskanian, supra 59 Cal.4th at p. 382.) “Simply put, a
4 PAGA claim … is not a dispute between an employer and an employee…. It is a dispute between an
5 employer and the state.” (Id. at p. 386-87.)
6 Correa is not the real party in interest with respect to a PAGA claim. Moniz is not either. Whether
7 we are looking to the failed Doe litigation or the successful Moniz litigation, the real party in interest is
8 the State of California. Thus, within the context of a PAGA claim, it is difficult to divine the entity
9 against whom Correa thinks she prevailed. Did she prevail against the State of California? Because that
10 is Moniz. Did she prevail against herself? Because that is the State of California. Surely, Correa is not
11 positing she prevailed against Adecco, because Correa has never successfully accomplished anything
12 against Adecco.
13 Labor Code Section 2699(g) offers Correa no basis to seek fees in this case – not from Adecco
14 outside of the global fund, and certainly not Moniz, a fellow aggrieved employee. Correa does not
15 provide a single authority to suggest otherwise.
16 C. While Correa Should Not Receive Any Fees as a Matter of Fact, Law, and Common
17 Sense, to the Extent She Receives Anything, There is No Logical Argument that Correa
Would Receive More than $17,290.52.
18
Discussed above, the facts, law, and common sense all merge to confirm that Correa should not
19
benefit from her pointless disruption of these proceedings. Correa should be awarded nothing.
20
To the extent Correa is somehow entitled to anything, there is no logical argument for awarding
21
her more than $17,290.52 in fees. The math is straightforward. There is no dispute that Correa had no
22
impact whatsoever on this settlement, save for the reallocation of $103,742.15 from Colleagues to
23
Associates. But Correa had no role in obtaining that roughly one hundred thousand dollars – Moniz did
24
that all on her own, while Correa spent four years seeking to destroy the settlement. Surely, Moniz’s
25
efforts – obtaining the monies – are more valuable than Correa’s efforts to eliminate those monies
26
(efforts that, through about a dozen degrees of separation, eventually resulted in the reallocation.)
27
28 __________________________________________________________________________________
12
PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND
ENHANCEMENT/SERVICE AWARD
Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736
1 But giving Correa every benefit of the doubt, let’s assume Correa’s and Moniz’s role with respect
2 to this $103,742.15 were equal (they surely were not). That would mean Correa’s attorneys would only
3 be entitled to one-half of one-third of $103,742.15. That is $17,290.52. Correa should not receive
4 anything. But if this Court finds its way to giving Correa something, this would be the most to which
5 she can logically seek.
6
III. CONCLUSION
7
8 For the foregoing reasons, Correa’s Motion should be denied.
9
Dated: March 15, 2023 Respectfully submitted,
10
11
12
Carolyn H. Cottrell (SBN 166977)
13 David C. Leimbach (SBN 265409)
SCHNEIDER WALLACE
14 COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
15 Emeryville, California 94608
Tel: (415) 421-7100
16 Fax: (415) 421-7105
ccottrell@schneiderwallace.com
17 dleimbach@schneiderwallace.com
18 Attorneys for Plaintiff Rachel Moniz, the State of
California, and the Aggr
Preview
1 Carolyn H. Cottrell (SBN 166977) David C. Leimbach (SBN 265409) 2 SCHNEIDER WALLACE COTTRELL KONECKY LLP 3 2000 Powell Street, Suite 1400 Emeryville, California 94608 4 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 5 ccottrell@schneiderwallace.com dleimbach@schneiderwallace.com 6 Attorneys for Plaintiff Rachel Moniz, 7 the State of California, and Aggrieved Employees 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 RACHEL MONIZ, on behalf of the State of Case No. 17CIV01736 California and aggrieved employees, 12 Assigned for All Purposes to Plaintiff, Hon. Marie S. Weiner, Dept. 2 13 vs. PLAINTIFF’S OPPOSITION TO MOTION 14 BY PAOLA CORREA AND HER ADECCO USA, INC., and DOES 1-50, ATTORNEYS FOR FEES AND 15 inclusive, ENHANCEMENT/SERVICE AWARD 16 Defendants. Date: April 25, 2023 Time: 2:00 p.m. 17 Place: Dept. 2 Judge: Hon. Marie S. Weiner 18 Complaint Filed April 18, 2017 19 Trial Date: Vacated 20 21 22 23 24 25 26 27 28 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 TABLE OF CONTENTS 1 2 I. INTRODUCTION ............................................................................................................................ 1 3 II. ARGUMENT ................................................................................................................................... 3 4 A. Correa And Her Counsel May Not Seek Fees Under CCP 1021.5. ............................................. 3 5 1. Legal Standard Under CCP 1021.5........................................................................................ 3 6 2. Correa is Not a Successful Party. ........................................................................................... 3 7 3. Correa Conferred No Benefit, Significant or Otherwise, on the Public or Anyone Else. .......................................................................................................... 5 8 4. Individuals May Not Obtain Fees Under CCP 1021.5 When They 9 Have Significant Financial Incentives in the Outcome of a Litigation. ................................. 8 5. As a Matter of Law, Correa is Prohibited From Seeking its Fees 10 From The Global Recovery, Which Necessarily Includes the Fees Allocated to Moniz’s Attorneys. ............................................................................................ 9 11 B. Correa is Not a “Prevailing Employee” Under Labor Code Section 12 2699(g)(1). ................................................................................................................................. 10 13 C. While Correa Should Not Receive Any Fees as a Matter of Fact, 14 Law, and Common Sense, to the Extent She Receives Anything, There is No Logical Argument that Correa Would Receive More 15 than $17,290.52. ......................................................................................................................... 12 16 III. CONCLUSION .............................................................................................................................. 13 17 18 19 20 21 22 23 24 25 26 27 __________________________________________________________________________________ 28 i PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 TABLE OF AUTHORITIES 1 2 Arias v. Superior Court, (2009) 46 Cal.4th 969 ........................................................................................................................ 12 3 City of Santa Monica v. Stewart, 4 (2005) 126 Cal.App.4th 43 .................................................................................................................. 4 5 Conservatorship of Whitley, 6 (2010) 50 Cal.4th 1206 ........................................................................................................................ 9 7 Consumer Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc., 8 (2005) 127 Cal. App. 4th 387 .............................................................................................................. 6 9 County of Colusa v. California Wildlife Conservation Bd., 145 Cal.App.4th 637(2006) ................................................................................................................. 3 10 Crawford v. Board of Education, 11 (1988) 200 Cal.App.3d 1397 ........................................................................................................... 4, 7 12 Folsom v. Butte County Assn. of Governments, 13 (1982) 32 Cal.3d 668 ....................................................................................................................... 4, 7 14 Iskanian v. CLS Transportation Los Angeles, LLC, (2014) 59 Cal. 4th 348 ....................................................................................................................... 12 15 16 Karuk Tribe v. California Regional Water Quality Control Board, (2010) 183 Cal.App.4th 330 ................................................................................................................ 6 17 Maria P. v. Riles, 18 (1987) 43 Cal.3d 1281 ......................................................................................................................... 4 19 People v. Investco Management & Development LLC., 20 (2018) 22 Cal. App. 5th 443 ................................................................................................... 3, 4, 5, 10 21 Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382 ................................................................................................................ 3 22 Sample v. Big Lots Stores, Inc., 23 (N.D. Cal. Nov. 29, 2010), 24 2010 U.S. Dist. LEXIS 131130 ......................................................................................................... 12 25 Savaglio v. Wal-Mart Stores, (2007) 149 Cal.App.4th 588 ................................................................................................................ 5 26 27 __________________________________________________________________________________ 28 ii PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 Weiss vs. City of Los Angeles, 1 (2016) 2 Cal.App.5th 194 .................................................................................................................... 5 2 Woodland Hills Residents Assn., Inc. v. City Council, 3 (1979) 23 Cal.3d 917 ........................................................................................................................... 6 4 Statutes 5 6 Cal. Lab. Code § 2699 ............................................................................................................... 10, 11, 12 7 Cal. Lab. Code § 2698 ............................................................................................................... 4, 7, 9, 12 8 Code Civ. Proc. § 1021.5 ................................................................................................................ passim 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 __________________________________________________________________________________ 28 iii PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 I. INTRODUCTION 2 At long last, we have arrived at what the past four years of frivolous litigation have been all 3 about: Correa and her attorney’s never-ending quest for an unearned payday. But as this Court has held 4 before and must now hold again, a shameless shakedown that adds nothing to a settlement, delays 5 payment to aggrieved employees and the State, and does nothing but harass the parties and the Court 6 does not satisfy any standard for an award of fees. 7 Correa did nothing to contribute to this settlement. Correa did not successfully litigate numerous 8 dispositive motions; Moniz did. Correa had no role in negotiating or seeking approval of the settlement 9 – that was all Moniz as well. Indeed, looking at all of Moniz’s pivotal successes – thereby forcing 10 Adecco to agree to an exceptional settlement – Correa repeatedly failed in litigating those same issues 11 throughout its hapless Doe litigation. 12 Even worse, for every success Moniz had, Correa sought to undermine it. While Moniz had 13 always sought civil penalties corresponding to the work experiences of Associates, Correa undermined 14 the PAGA’s law enforcement objectives by attempting to prevent Moniz from doing so, even after 15 Correa failed in litigating those claims. And when Moniz obtained a favorable settlement following 16 these dispositive motion victories, Correa flat-out lied to the Labor Workforce Development Agency, 17 pedaling hyperbolic conspiracy theories of collusion and made-up settlements, conning an agency of 18 limited resources into wasting its valuable time and energy chasing an edifice of Correa’s own creation. 19 Of course, as this Court is well-aware, that was far from Correa’s only frivolous tactic to thwart 20 this settlement. Whether it’s the three failed motions to intervene, multiple appeals, numerous motions 21 to vacate the judgment, this second motion for fees and everything in between, Correa has done nothing 22 but take actions antagonistic to this settlement, aggrieved employees, and the State of California. One 23 might say it is laughable that Correa would argue she somehow contributed to the positive outcome in 24 this case, but now that we are in the fourth year of this never-ending shakedown, the joke has grown a 25 bit stale. 26 27 28 __________________________________________________________________________________ 1 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 The record in this case confirms that awarding Correa any amount of fees would be a gross 2 miscarriage of justice.1 Correa cannot possibly be viewed as a “prevailing party” when she is neither a 3 party nor did she prevail at anything other than wasting this Court’s time and resources. She certainly 4 did not “prevail” in unwinding or meaningfully altering the settlement in this case. The settlement is 5 virtually identical to the one executed all the way back in 2019. Indeed, Correa did not even “prevail” 6 in her own case. 7 There should be no question that the past four years of litigation have nothing to do with the 8 adequacy of the settlement in this case, and everything to do with Correa’s efforts to bootstrap her 9 failures to Moniz’s successes. The Court need not take Moniz’s word for it. As this Court has 10 recognized, 11 Correa’s and her counsel’s assertion that they are ‘prevailing parties’ entitled to fees and 12 costs in this Moniz case because the Moniz settlement is attributable to their efforts in Doe defies common sense. They did not prevail on these claims in Doe, were never 13 parties in Moniz, were not involved in the settlement of these claims, and cannot take credit for claims arising from Plaintiff Moniz’s first-filed LWDA PAGA notice. 14 (Moniz v. Adecco, Case No. 17-cv-01736, Order Re: Attorneys’ Fees, Costs and Incentive Awards, 15 January 15, 2020, at pp. 16-17). Far from providing any benefit or contribution to the outcome in this 16 case, 17 the activities of Correa and her attorneys in this lawsuit have not been to the substantial benefit of the State or the Aggrieved Employees. Indeed, they caused delay, harassment, 18 additional expense and time by Moniz and her attorneys, and achieved nothing that was 19 not already achieved by Moniz and her attorneys. The efforts of Correa and her attorneys did not increase the amount of the settlement or its benefits. In their own lawsuit in San 20 Francisco County Superior Court they lost the claims that they now assert are the basis for the award of fees and costs to them in this lawsuit. It is evident that the primary 21 purpose of Correa’s activities in this Moniz case was to try and create a basis upon which Correa and her counsel would then demand payment for fees and awards. 22 23 24 1 Considerable ink has been spilled by the parties and the Court on Correa’s frivolous litigation tactics – tactics having the singular purpose of later seeking fees. There is hardly enough space within page 25 limitations to detail it all. However, it has been briefed countless times, this Court has recounted those facts in as many orders, and Moniz suspects the Court does not need to read it all again. Much of it is 26 detailed in this Court’s January 15, 2020 Order denying Correa’s requests for fees, costs, and incentive 27 awards, and the parties’ briefing related thereto. Moniz presumes the Court is therefore more than familiar with this context and incorporates these findings by reference. 28 __________________________________________________________________________________ 2 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 (Id. at p. 15.) 1 This Court has recognized that everything Correa has done over the past four years has nothing 2 to do with aggrieved employees, the State, or the PAGA. It is about Correa’s attorneys’ pursuit of 3 compensation they did nothing to earn. That is all. The Court should simply repeat the words it has 4 already spoken about Correa and her attorneys, and summarily deny Correa’s requests for fees and 5 incentive awards. 6 II. ARGUMENT 7 8 A. Correa And Her Counsel May Not Seek Fees Under CCP 1021.5. 9 1. Legal Standard Under CCP 1021.5. 10 Code of Civil Procedure “[s]ection 1021.5 codifies California's version of the private attorney 11 general doctrine, which is an exception to the usual rule that each party bears its own attorney fees. 12 [Citation.] The purpose of the doctrine is to encourage suits enforcing important public policies by 13 providing substantial attorney fees to successful litigants in such cases. [Citation.]” (Robinson v. City of 14 Chowchilla (2011) 202 Cal.App.4th 382, 390.) 15 The statutory language of section 1021.5 can be divided into the following separate elements: 16 A superior court may award attorney fees to (1) a successful party in any action (2) that 17 has resulted in the enforcement of an important right affecting the public interest if (3) a significant benefit has been conferred on the general public or a large class of persons, 18 (4) private enforcement is necessary because no public entity or official pursued enforcement or litigation, (5) the financial burden of private enforcement is such as to 19 make a fee award appropriate, and (6) in the interests of justice the fees should not be paid out of the recovery.” 20 (People v. Investco Management & Development LLC (2018) 22 Cal. App. 5th 443, 464; quoting County 21 of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 648) (internal citations 22 and quotations omitted). “As section 1021.5 states the criteria in the conjunctive, each of the statutory 23 criteria must be met to justify a fee award.” (Investco Management & Development LLC, 22 Cal. App. 24 5th at 464.) 25 2. Correa is Not a Successful Party. 26 Correa is not a “successful party” within the definition of CCP 1021.5 Moniz recognizes that 27 under CCP 1021.5, a “rigid” definition of “party” is not necessarily required. (Investco, 22 Cal. App. 28 __________________________________________________________________________________ 3 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 5th at 458-59.) But this does not mean, as Correa suggests, that the only requirement is an individual 2 be “clearly interested”2 in the action, in some colloquial sense.3 3 Instead, a successful party is one who “succeed[s] on any significant issue in litigation which 4 achieves some of the benefit the parties sought in bringing suit.” [Citation.]” (Investco, 22 Cal. App. 5 5th at 459; quoting Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) To determine whether a party is 6 “successful,” courts look at the outcomes the parties sought in commencing the action, the situation 7 before the party commenced the suit, and the situation today. (Folsom v. Butte County Assn. of 8 Governments (1982) 32 Cal.3d 668, 685, fn. 31.) If the “success” is “ancillary” or “entirely unrelated 9 to the objective of the lawsuit,” the “success” is not of the sort contemplated under Section 1021.5. 10 (Investco Management & Development LLC, 22 Cal. App. 5th at 459 [citing Savaglio, supra, 149 11 Cal.App.4th at p. 603.].) 12 13 2 Correa’s citation to Investco for this proposition is misleading. Investco used this phrase in just a single 14 instance to explain that formal intervention is not necessarily required to be a “party” under CCP 1021.5, 15 writing that “[a]ppellants cite no authority requiring such clearly interested parties to formally move to intervene in order to obtain section 1021.5 fees, and under the circumstances presented here, we decline 16 to require it.” (Investco, 22 Cal. App. 5th at 459.) This is not in any way a “legal standard” – apparently, a colloquial one Correa thinks she can satisfy with any attenuated “interest.” To the contrary, this dictum 17 was only necessary because Courts often required satisfaction of intervention standards before such fees could be awarded. (See, e.g., City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 87 [“[a] party 18 who satisfies the criteria for intervention and who contributes to the success of public interest litigation 19 should be entitled to an award of attorneys' fees on the same terms as any other party.”]; Crawford, supra, 200 Cal.App.3d at p. 1407, fn. omitted [relying on federal decisional authority holding that 20 interveners who make “a clear showing of some unique contribution to the litigation” may be entitled to fees under § 1021.5].) 21 3 If Correa’s status as a deputized employee and nothing more positioned her as an “interested party” 22 able to seek fees in a separate PAGA settlement, it takes little imagination to predict that California 23 courts would become saturated with a cottage industry of PAGA attorney fee litigation. Grifters such as Correa and her attorneys could simply monitor LWDA filings, file their own LWDA letter and do 24 nothing, wait for a related PAGA action to settle, and then extort the settlement. Such an untenable outcome would completely strip the PAGA of its law enforcement objectives. Attorneys will have no 25 incentive whatsoever to vigorously prosecute complicated and expensive aggregate PAGA proceedings. After all, no sane attorney would invest the considerable time and resources required to successfully 26 prosecute a PAGA claim, risking that she would get nothing if she fails, when even if she does succeed 27 in the end, five other attorneys would be entitled to come out of the woodwork and confiscate her compensation simply because they represented a deputized employee in some other failed litigation. 28 __________________________________________________________________________________ 4 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 Correa plainly does not qualify as a “successful party” under CCP 1021.5. The benefits sought 2 by this lawsuit – indeed, the purpose of Correa’s failed Doe lawsuit – is civil penalties and injunctive 3 relief. Before Moniz’s lawsuit was filed, it was alleged that Adecco had violated and was continuing 4 to violate various provisions of the Labor Code. Before Moniz’s lawsuit was filed, the State had not 5 obtained any civil penalties for these alleged wrongs. And now? Both circumstances have changed, 6 without any contribution from Correa. Correa did not obtain any civil penalties. And Correa did not 7 obtain any injunctive relief. But Moniz did. Moniz obtained injunctive relief to prevent these wrongs 8 from happening in the future. Moniz obtained the civil penalties designed to deter and punish Adecco 9 for these wrongs. Correa contributed nothing to these core inquiries for whether she could possibly be 10 viewed as a “successful party.” 11 But even if we ignored the correct inquiry under Section 1021.5 – the purpose of the lawsuit – 12 and looked solely at Correa’s endeavors in this case, it cannot seriously be disputed that Correa failed. 13 Correa did not spend the past four years wasting the parties’ and Court’s time and resources so she 14 could litigate some academic procedural issue on appeal. And the past four years surely was not about 15 putting an extra $1.65 in the pockets of Associates. Correa’s sole purpose in the Moniz proceedings 16 was to unwind the settlement because Correa thinks this case is worth tens of billions of dollars, and 17 4.5 million was not enough. Correa failed. The settlement has been approved again, in virtually the 18 same form as it was back in 2019. When it comes to Correa’s involvement in this case, Moniz is plainly 19 the “prevailing party” against Correa, not the other way around. 20 3. Correa Conferred No Benefit, Significant or Otherwise, on the Public or 21 Anyone Else. 22 Section 1021.5 permits a fee award “in any action which has resulted in the enforcement of an 23 important right affecting the public interest’ regardless of its source—constitutional, statutory or other.’” 24 [Citation.]’” (Weiss, supra, 2 Cal.App.5th at p. 218.) “Although section 1021.5 provides no concrete 25 standard or test against which a court may determine whether the right vindicated in a particular case is 26 sufficiently ‘important’ to justify a private attorney general fee award … the Legislature obviously 27 intended that there be some selectivity, on a qualitative basis, in the award of attorney fees under the 28 __________________________________________________________________________________ 5 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 statute, for section 1021.5 specifically alludes to litigation which vindicates ‘important’ rights and does 2 not encompass the enforcement of ‘any’ or ‘all’ statutory rights. Thus, again like the federal cases, the 3 statute directs the judiciary to exercise judgment in attempting to ascertain the ‘strength’ or ‘societal 4 importance’ of the right involved.” (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 5 Cal.3d 917, 935.) In adjudicating a motion for attorney fees under section 1021.5, a trial court should 6 “determine the significance of the benefit, as well as the size of the class receiving benefit, from a 7 realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a 8 particular case.”4 (Woodland Hills, at pp. 939–940.) 9 The “significant benefits” that must be shown to obtain fees under Section 1021.5 do not include 10 anything that debatably benefits someone. The benefits successfully obtained must be the same benefits 11 pursued in a lawsuit on the public’s behalf. (Woodland Hills Residents Assn., Inc. v City Council (1979) 12 23 Cal.3d 917.) That a party may have, for example, successfully litigated an academic procedural issue 13 tangentially related to the causes of action pled in an actual lawsuit does not concern the type of 14 “substantial benefit” contemplated by Section 1021.5. (Investco Management & Development LLC, 22 15 Cal. App. 5th at 464) [“procedural successes that did not result in any substantive changes” do not justify 16 fees under Section 1021.5.].) Nominal successes that do not have a material impact on the outcome of a 17 case do not qualify. (See, e.g., Karuk Tribe, supra, 183 Cal.App.4th at p. 369 [the fee claimants simply 18 obtained a court order requiring a regional water quality control board to provide an “augmented 19 explanation” on the same decision it had previously made]; Consumer Cause, supra, 127 Cal.App.4th 20 at p. 404 [the fee applicant's successful objection to a class action settlement simply “[f]ree[d] [the] 21 putative class members from the constraints of a proposed settlement agreement they had the right to 22 disregard by exercising their opt-out right.”].) Attorneys’ fees should not be awarded where, as here, the 23 24 4 Unsurprisingly, Correa omits any discussion of “all of the relevant surrounding circumstances” and any realistic assessment thereof from her request. That is no doubt because a realistic assessment of 25 the surrounding circumstances would reveal that Correa has continually filed vexatious motions in this case, all of which have been to oppose the substantive relief provided by the Parties’ Settlement. In no 26 way would a “realistic assessment of all the relevant surrounding circumstances” justify a providing 27 Correa or her attorneys with a single penny. 28 __________________________________________________________________________________ 6 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 party’s “participation was unnecessary in light of the efforts of other prevailing litigants” or if the party 2 “contributed little or nothing of substance in producing [the] outcome.” (Crawford v. Bd. Of Education 3 (1988) 200 Cal. App. 3d 1397, 1406 [quoting Folsom v. Butte County Ass'n of Governments (1982) 32 4 Cal. 3d 668, 686].) 5 Here, the purported “benefits” Correa suggests she conferred on this case simply are not of the 6 sort contemplated by Section 1021.5 – that is, to the extent any benefits of any kind were conferred, a 7 proposition with which Moniz categorically rejects. For example, Correa argues she successfully 8 litigated a preemption issue in her Doe appeal. But even ignoring the fact that this litigation was in a 9 different case, Correa ignores the fact that Moniz had already successfully litigated that issue in this 10 case. Correa argues she “established the settlement standard for PAGA settlements.” (Correa Mot., 15: 11 5.) But this is false. This Court established the same standard that was affirmed in the Moniz appeal – a 12 standard suggested by the actual parties in this case. Correa also argues she impacted the release period. 13 But this too is false. The parties always intended to create a release period that is the same as it is today, 14 and the Court – not Correa – ordered the parties to make minor modifications to the settlement agreement 15 to make what was always the parties’ intentions a bit clearer. All the things for which Correa would 16 claim credit were in fact accomplished completely independent of Correa. In other words, Correa’s 17 “participation was unnecessary in light of the efforts of other prevailing litigants” and Correa 18 “contributed little or nothing of substance in producing [the] outcome.” (Crawford v. Bd. Of Education 19 (1988) 200 Cal. App. 3d 1397, 1406.) 20 Of course, Correa notes that as a result of her relentless efforts to thwart the settlement in this 21 case, the parties ultimately decided to reallocate $100,000 between and among the various aggrieved 22 employees at issue. One hundred thousand dollars, out of a settlement of almost 4.6 million. To put it 23 another way, Correa’s four years of harassment changed nothing about the settlement, other than to take 24 some money from Colleagues and provide Associates with an additional $1.65 each. 25 To be clear, Correa did not “obtain” $100,000 outside of what Moniz obtained. Correa’s 26 involvement simply led – through many degrees of separation – to a reallocation of a tiny fraction of the 27 settlement; approximately 2.2%. This is the “significant benefit” that Correa suggests entitles her and 28 __________________________________________________________________________________ 7 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 her attorneys to $1,166,031 out of $1,500,000 in attorneys’ fees. Correa wants 78% of Moniz’s 2 attorneys’ fees, because after four years and nearly a half a million dollars in fees that Moniz has 3 incurred opposing Correa’s ruse, 2.2% of the settlement was shuffled from one pocket to another, and 4 those “benefitting” aggrieved employees received an extra buck and a half. This argument cannot be 5 taken seriously.5 6 4. Individuals May Not Obtain Fees Under CCP 1021.5 When They Have 7 Significant Financial Incentives in the Outcome of a Litigation. 8 Sometimes, common aggregate proceedings – such as class actions or PAGA cases – overlap 9 and proceed separately. Often, one of these cases will proceed more favorably than the other. 10 Unsurprisingly, the case that realizes more successes (like Moniz) is more likely to settle than a similar 11 case defined by failure (Like Correa). But Section 1021.5 was never intended to allow losing plaintiffs 12 5 That Correa would request a lodestar multiplier is absurd and completely ignores her failures in 13 both this case and her own. Correa sought, time and again, to completely unwind the settlement. Correa failed. Moniz sought to preserve the settlement. She succeeded. Because Moniz protected the settlement 14 in virtually every aspect, she is the prevailing party with respect to the past four years of litigation against Correa. 15 While Moniz prevailed against Correa, it came at a great cost. Moniz’s counsel has incurred 16 $437,951.00 in fees since the settlement was first approved, and her current lodestar sits at $1,469,117. (See Declaration of David C. Leimbach, ¶ 6-7.) Thus, even if the Court determines Correa “prevailed” 17 in some small way, any request for fees must be measured against the fact that Moniz overwhelmingly prevailed against Correa in the only way that actually matters, and incurred substantial fees in doing so. 18 Such an evaluation should lead the Court to conclude that Correa is not entitled to any fees. Indeed, even the rates Correa seeks are typically reserved for those at the highest levels of their 19 profession, not attorneys who make a living extorting other settlements. The number of hours expended 20 in this case cannot possibly be justified, given that Correa has failed in her challenge to this settlement in virtually every respect. The hours claimed and rates charged cannot be justified by Correa’s endless 21 string of failures – both in this case and in Doe. Similarly, Correa’s request for an enhancement or service award has no basis in law, fact, or 22 common sense, and should be denied for the same reasons that Correa’s attorneys are not entitled to any 23 fees. Indeed, it is particularly odd that Correa’s attorneys would request an “incentive/service” award in this case. Counsel for Correa was present at the recent hearing on Moniz’s motion to approve the 24 settlement, and this Court made clear that the very concept of an “enhancement/service” award does not apply to PAGA proceedings, and the additional payment Moniz would receive was not an 25 “enhancement/service” award, but instead was given in exchange for her executing a general release. Moniz seriously doubts Correa is proposing to release any and all claims she may have against Adecco, 26 and to be compensated for these individual claims through the global fund in this case. Failing that, as 27 this Court recently explained to Correa’s attorneys, Correa is not entitled to a “service/enhancement” award as a matter of basic PAGA law. 28 __________________________________________________________________________________ 8 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 to seek compensation from winning plaintiffs. Section 1021.5 is not a vehicle for parties to potentially 2 valuable cases to seek compensation in a different case when they lose. Case law interpreting the 3 requirements of Section 1021.5 confirm as much. 4 “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant's 5 legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed 6 a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’ [Citation.]”’ [Citation.] 7 ‘This requirement focuses on the financial burdens and incentives involved in bringing the lawsuit.’ 8 [Citation.]” (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215. “‘Code of Civil Procedure 9 section 1021.5 is intended to provide an incentive for private plaintiffs to bring public interest suits when 10 their personal stake in the outcome is insufficient to warrant incurring the costs of litigation.’” (Whitley, 11 supra, 50 Cal.4th at p. 1221.) 12 Multi-million-dollar PAGA actions do not qualify as the type of public interest suit where a 13 plaintiff’s personal stake is insufficient to warrant incurring the costs of litigation. This is precisely why 14 attorneys routinely bring these cases: if they are successful, the financial rewards can be significant. 15 Indeed, given that Correa apparently believes this case is worth tens of billions of dollars, she cannot 16 now be heard to argue that this is the type of financial loss-leader warranting a public-interest fee award 17 under Section 1021.5. 18 5. As a Matter of Law, Correa is Prohibited From Seeking its Fees From The 19 Global Recovery, Which Necessarily Includes the Fees Allocated to Moniz’s 20 Attorneys. 21 A critical requirement for awarding any fees under Section 1021.5 is that the fees cannot come th 22 from a global recovery. (People v. Investco Management & Development LLC (2018) 22 Cal. App. 5 23 443 [“such fees should not in the interest of justice be paid out of the recovery if any."].). 24 Throughout its brief, Correa insists the Court can simply “award fees from the common fund.” 25 (Correa’s Mot., 13: 16-17; see also id. at pp. 14:3-7 [“The Court can also do some combination of both, 26 awarding fees against the losing party as well as from the common fund.”]; 14: 8-10 [“or from the 27 28 __________________________________________________________________________________ 9 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 common fund after the distributed amounts are returned to the common fund.”].) But 2 Correa is mistaken. 3 Correa may not seek the attorneys’ fees from the common fund. This is true whether Correa is 4 seeking just those fees that have been allocated to Moniz’s attorneys, or fees as part of the broader fund. 5 The reason is simple. The common fund is just that: a single, common fund; a single common 6 “recovery.” Moniz did not obtain separate “recoveries” for civil penalties given to the State; civil 7 penalties given to aggrieved employees; general releases or enhancement awards for the representative 8 plaintiff; and then attorneys’ fees. Moniz negotiated, and the Court approved, a single 4.5-million-dollar 9 settlement, which resolved all claims at issue, including for attorneys’ fees. Moniz did not dictate how 10 much in fees she would receive; the Court did. The Court did so by awarding Moniz a portion of the 11 global fund, which is permissible under the California Labor Code and other authorities for actual parties 12 to a settlement. But because Moniz’s fees are inexorably intertwined with the common fund as part of a 13 single “recovery,” Correa is statutorily prohibited from seeking her fees from any part of the 4.5 million 14 dollar settlement. 15 B. Correa is Not a “Prevailing Employee” Under Labor Code Section 2699(g)(1). 16 Labor Code Section 2699 has not been litigated with regards to attorney fees. Correa has not 17 cited any case law dealing with attorneys’ fees under Section 2699(g)(1) in any context – let alone case 18 law concerning Correa’s efforts to use this statute to obtain fees in a completely separate case, and to 19 take those fees from another prevailing employee. Outside of expressing her belief that she has 20 somehow “prevailed” in this case and is otherwise an “employee,” Correa makes no argument and 21 offers no authority to support this brazen request under Section 2699(g).6 Nor could she. 22 Correa’s token reference to 2699(g) omits critical context to the statute. In full, Section 23 2699(g)(1) states that: 24 25 6 Again, and as discussed above, Correa cannot be considered a “prevailing employee” against Moniz. 26 Because the settlement ultimately approved is virtually identical to the one approved back in 2019 and 27 Correa failed in her singular goal of unwinding the settlement, Moniz is plainly the “prevailing employee” against Correa. 28 __________________________________________________________________________________ 10 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 Except as provided in paragraph (2), an aggrieved employee may recover the civil 1 penalty described in subdivision (f) in a civil action pursuant to the procedures specified 2 in Section 2699.3 filed on behalf of himself or herself and other current or former employees against whom one or more of the alleged violations was committed. Any 3 employee who prevails in any action shall be entitled to an award of reasonable attorney’s fees and costs …. 4 Cal. Lab. Code § 2699(g)(1). 5 Section 2699(g)(1) does not, as Correa apparently believes, authorize an award of attorneys’ fees 6 any time an employee “prevails” in any random endeavor. As a necessary predicate to the pursuit of 7 fees under 2699(g)(1), an employee must first “recover [] civil penalt[ies] … in a civil action” against 8 the individual or entity that committed the violations. (Cal. Lab. Code § 2699(g)(1).) 9 Plainly, none of this has happened here. Correa did not obtain any civil penalties in this case 10 against Adecco – the only employer at issue in this case. But this is the only way to obtain fees under 11 Section 2699(g). Correa does not even try to argue she has done so here. And as it pertains to Moniz, 12 even if Correa somehow met other requirements for the statute, Section 2699(g)(1) only authorizes 13 pursuit of fees from the employer who committed the violations. Nothing in the plain language of 14 2699(g) or any other authority could conceivably authorize the pursuit of attorneys’ fees from an 15 employee who successfully filed a civil action and obtained civil penalties against an employer. 16 Indeed, the fact that Correa’s apparently believes she can seek attorney’s fees from Moniz under 17 2699(g) confirms she does not understand the basic tenants of the PAGA. A PAGA claim does not 18 concern the vindication of individual rights; it “is fundamentally a law enforcement action that 19 substitutes for an action brought by the government itself.” (Iskanian, supra, 59 Cal.4th at p. 394; Arias, 20 supra, 46 Cal.4th at 986.) Unlike class actions, "a PAGA claim serves to vindicate the public through 21 the imposition of civil penalties as opposed to conferring a private benefit upon the plaintiff and the 22 represented employees." (Sample v. Big Lots Stores, Inc. (N.D. Cal. Nov. 29, 2010) 2010 U.S. Dist. 23 LEXIS 131130, at *8.) 24 “An employee plaintiff suing ... under the [PAGA] does so as the proxy or agent of the state's 25 labor law enforcement agencies.” (Id. at 381, quoting Arias, supra, 46 Cal.4th at p. 985.) “In a lawsuit 26 brought under the act, the employee plaintiff represents the same legal right and interest as state labor 27 28 __________________________________________________________________________________ 11 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 law enforcement agencies—namely, recovery of civil penalties that otherwise would have been 2 assessed and collected by the Labor Workforce Development Agency.” (Id.) “A PAGA representative 3 action is therefore a type of qui tam action.” (Iskanian, supra 59 Cal.4th at p. 382.) “Simply put, a 4 PAGA claim … is not a dispute between an employer and an employee…. It is a dispute between an 5 employer and the state.” (Id. at p. 386-87.) 6 Correa is not the real party in interest with respect to a PAGA claim. Moniz is not either. Whether 7 we are looking to the failed Doe litigation or the successful Moniz litigation, the real party in interest is 8 the State of California. Thus, within the context of a PAGA claim, it is difficult to divine the entity 9 against whom Correa thinks she prevailed. Did she prevail against the State of California? Because that 10 is Moniz. Did she prevail against herself? Because that is the State of California. Surely, Correa is not 11 positing she prevailed against Adecco, because Correa has never successfully accomplished anything 12 against Adecco. 13 Labor Code Section 2699(g) offers Correa no basis to seek fees in this case – not from Adecco 14 outside of the global fund, and certainly not Moniz, a fellow aggrieved employee. Correa does not 15 provide a single authority to suggest otherwise. 16 C. While Correa Should Not Receive Any Fees as a Matter of Fact, Law, and Common 17 Sense, to the Extent She Receives Anything, There is No Logical Argument that Correa Would Receive More than $17,290.52. 18 Discussed above, the facts, law, and common sense all merge to confirm that Correa should not 19 benefit from her pointless disruption of these proceedings. Correa should be awarded nothing. 20 To the extent Correa is somehow entitled to anything, there is no logical argument for awarding 21 her more than $17,290.52 in fees. The math is straightforward. There is no dispute that Correa had no 22 impact whatsoever on this settlement, save for the reallocation of $103,742.15 from Colleagues to 23 Associates. But Correa had no role in obtaining that roughly one hundred thousand dollars – Moniz did 24 that all on her own, while Correa spent four years seeking to destroy the settlement. Surely, Moniz’s 25 efforts – obtaining the monies – are more valuable than Correa’s efforts to eliminate those monies 26 (efforts that, through about a dozen degrees of separation, eventually resulted in the reallocation.) 27 28 __________________________________________________________________________________ 12 PLAINTIFF’S OPPOSITION TO MOTION BY PAOLA CORREA AND HER ATTORNEYS FOR FEES AND ENHANCEMENT/SERVICE AWARD Moniz v. Adecco USA Inc., et al. Case No. 17CIV01736 1 But giving Correa every benefit of the doubt, let’s assume Correa’s and Moniz’s role with respect 2 to this $103,742.15 were equal (they surely were not). That would mean Correa’s attorneys would only 3 be entitled to one-half of one-third of $103,742.15. That is $17,290.52. Correa should not receive 4 anything. But if this Court finds its way to giving Correa something, this would be the most to which 5 she can logically seek. 6 III. CONCLUSION 7 8 For the foregoing reasons, Correa’s Motion should be denied. 9 Dated: March 15, 2023 Respectfully submitted, 10 11 12 Carolyn H. Cottrell (SBN 166977) 13 David C. Leimbach (SBN 265409) SCHNEIDER WALLACE 14 COTTRELL KONECKY LLP 2000 Powell Street, Suite 1400 15 Emeryville, California 94608 Tel: (415) 421-7100 16 Fax: (415) 421-7105 ccottrell@schneiderwallace.com 17 dleimbach@schneiderwallace.com 18 Attorneys for Plaintiff Rachel Moniz, the State of California, and the Aggr