Preview
1 DLA PIPER LLP (US)
Electronically Filed
Angela C. Agrusa (SBN 131337) 3/9/2020 9:17 PM
2 angela.agrusa@us.dlapiper.com Superior Court of California
3 Levi W. Heath (SBN 220854) County of Stanislaus
levi.heath@us.dlapiper.com Clerk of the Court
4 Steve L. Hernández (SBN 229065) By: Joshua Teixeira, Deputy
steve.hernandez@us.dlapiper.com
5 2000 Avenue of the Stars
Suite 400 North Tower
6 Los Angeles, California 90067-4704
7 Tel: (310) 595-3000
Fax: (310) 595-3300
8
Attorneys for Defendants
9 CHIPOTLE SERVICES, LLC
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF STANISLAUS
12
13 JERAE PORRAS, MANDI SANCHEZ, JASON Case No.: CV-19-000937
LE SURE, KADIEDRA CRAWFORD, AND
14 JANIE SALGUERO as aggrieved employees ASSIGNED FOR ALL PURPOSES TO
pursuant to the Private Attorneys General Act HON. ROGER M. BEAUCHESNE,
15 (“PAGA”), DEPT. 24
16 Plaintiffs, DEFENDANT CHIPOTLE
SERVICES, LLC’S OPPOSITION
17 vs. TO EX PARTE MOTION TO
INTERVENE
18 CHIPOTLE SERVICES, LLC, a Colorado limited
liability company and DOES 1 through 10, inclusive, [Filed concurrently with Decl. of
19 Steve L. Hernández]
20 Defendants. Date: March 11, 2020
Time: 8:30 a.m.
21 Judge: Roger M. Beauchesne
Dept.: 24
22 Stanislaus Superior Courthouse
800 11th Street
23 Modesto, CA 95354
24
25
26
27
28
DLA P I PER LLP (US)
LOS A NG EL ES
DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE
1 I. INTRODUCTION
2 Proposed Interveners (“Barber Plaintiffs”) here have repeatedly abused the ex parte
3 process as a means to both seek to upend settlements that Chipotle and the Parties in the instant
4 case reached after extensive, arms-length negotiations and to inappropriately harass Defendant
5 and Plaintiffs in this and other related cases. Despite having been provided extensive authority
6 explaining the futility of their ex parte application and their lack of standing to object in these
7 PAGA actions, they nevertheless filed their ex parte application. They did so having been told by
8 the Court in the related Turley case that the proper use of the ex parte process would be to file a
9 regularly noticed motion, followed by an ex parte application for an order shortening time.
10 Further, while Barber Counsel did notify Chipotle’s counsel (Levi Heath and Steve L. Hernández)
11 on Monday, March 9 of their intent to appear on Tuesday March 10 for the ex parte hearing, they
12 did not properly serve their moving papers on Chipotle at all.
13 There is nothing in Barber Plaintiff’s moving papers that shows why ex parte relief is
14 appropriate here, let alone where they have failed to serve their moving papers on Defendants.
15 Further, Proposed Intervenors continue their pattern and practice of brazenly violating the rules of
16 evidence by misstating the facts surrounding both their refusal to participate in mediation and the
17 settlement process that lead to the settlement pending before this Court.
18 Counsel’s efforts to stake a claim for their own attorneys’ fees is not an emergency that
19 needs ex parte relief. Barber counsel only demonstrate the prejudice of their actions to the
20 interests of the aggrieved employees at issue (and the state) here by bringing this motion. Rather
21 than respecting the Court’s and the state’s role in evaluating the fairness of the PAGA settlement,
22 they seek to short-circuit the process by becoming involved in the case now, over five months
23 after the mediation they were aware of and were invited to attend.
24 Barber counsel’s attempt to intervene with moving papers numbering over 800 pages, via
25 the ex parte process and without providing Defendant the moving papers is irredeemably unfair
26 and improper. They cannot be permitted to use the ex parte process to raise substantive
27 arguments properly raised only via a noticed motion to avoid proper judicial hearing procedures.
28 The Barber Plaintiffs’ transparent motivation—to disrupt the settlement reached by the Parties
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DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE
1 that did not include them because of their last-minute, self-centered decision to skip a
2 mediation—is not sufficient grounds for the relief requested via the ex parte process. Plaintiffs
3 requested relief must be denied and, at the very least, the Parties to this case should be permitted
4 to brief the proposed intervention via regularly noticed motion. This is especially true for
5 Chipotle, which only received Plaintiff’s moving papers this afternoon from different counsel,
6 hours after Barber counsel apparently served them on some of the other Parties to this case.
7 II. FACTUAL SUMMARY
8 As mentioned in Barber Plaintiff’s moving papers, on September 23, 2019 the Orange
9 County Superior Court issued an Order staying the Barber case in its entirety. Barber counsel’s
10 purely monetary motivations reared their ugly head when, only two working days before the long-
11 scheduled October 1 mediation, they backed out of attending the mediation where they would
12 have been able to uphold their fiduciary duties by negotiating on behalf of their putative class.
13 Declaration of Steve L. Hernández Decl. (“Hernández Decl.”) ¶ 2. Contrary to their self-serving
14 assertions, Barber counsel had agreed to attend the mediation without having taken a PMQ and
15 without the purportedly necessary data until two working days prior to the mediation. Id. In fact,
16 Barber counsel dropped out of the mediation only hours after Chipotle refused to acquiesce to
17 their demand of an opening offer of $1,000,000. Id. Barber counsel’s attempt to gloss over this
18 inconvenient fact is shocking considering the documentary evidence.
19 On October 1, 2019 the Parties mediated the instant PAGA case (formerly three separate
20 PAGA cases), along with a class action case in San Francisco and resolved all of the actions. Id.
21 at ¶ 3. Despite being aware of the mediation, Barber counsel never asked defense counsel about
22 the outcome of that mediation and did not file a motion to intervene at that time. Id. ¶ 4. Further,
23 they did not file a motion to intervene at the time they filed their ex parte motion to Intervene in
24 the Turley v. Chipotle matter in San Francisco, despite them being advised that this case was also
25 settled at that time.
26 To make matters worse, Barber counsel again (they did so in Turley, as well) unfairly
27 drags the good name of well-regarded mediator Jeff Krivis through the mud by submitting
28 inadmissible hearsay attributing to him a statement that is demonstrably false. Id. at ¶ 2. The
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DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE
1 truth of the matter is that Chipotle, by counsel, informed Mr. Krivis of the listed the filing dates,
2 claims, and nature of each of the cases contemplated by the settlement, including Barber,
3 discussed with him the information Barber counsel were seeking, and what information Barber
4 counsel were and were not provided prior to the mediation. Hernández Decl. at ¶ 4. Krivis was
5 also made aware that Barber counsel dropped out of the mediation only Chipotle refused to make
6 Barber counsel’s requested pre-mediation offer of $1 million. Id. Finally, there is no doubt that
7 Mr. Krivis was fully aware of the breadth of the release he helped negotiate and that all of the
8 claims in all of the pending actions, including Barber, were covered by the settlement. Id. There is
9 little doubt that Mr. Krivis would testify to the veracity of these statements should the Court
10 require it and the Parties have sufficient time to respond to Barber Counsel’s ill-advised,
11 improperly noticed ex parte intervention attempt.
12 Barber Plaintiffs admit that they were aware in October 2019 that the Parties in the instant
13 case intended on settling this case and any related claims, including those in Barber. Barber
14 Plaintiffs could have and reasonably should have filed a regularly noticed motion seeking to
15 intervene in this case at that time. They didn’t. They could have filed a regularly noticed motion
16 at various points since, including when they were told numerous times that the instant PAGA
17 cases had settled. They didn’t. Instead, they filed they continue to comport themselves in the
18 most professionally discourteous manner possible, by filing their application less than 24 hours
19 before the hearing they scheduled ex parte and without providing the lone Defendant proper
20 notice at all.
21 III. ARGUMENT
22 A. The Barber Plaintiffs’ Ex Parte Motion is Procedurally Improper.
23 The substance of the Barber Plaintiffs’ motion would properly be brought a notice
24 motion, not as an ex parte motion forcing Plaintiff’s counsel and Chipotle to respond
25 immediately. This is doubly prejudicial to Chipotle, which only received the moving papers from
26 Plaintiff’s counsel here hours after they were apparently served.
27 Only limited forms of relief are available ex parte, and generally are only authorized if
28 permitted by statute, for example, to authorize discovery by plaintiff during the “hold” on
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DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE
1 discovery at the outset of the case (see CCP §§ 2025.210 (b), 2030.020(b), (d)) or to control
2 deposition scheduling (see CCP § 2025.270).1 Here, where the Barber Plaintiffs could have
3 sought to intervene while providing regular notice, there is no emergency, no basis for ex parte
4 relief and only a regularly noticed motion and the full opportunity to brief the issues would
5 provide Chipotle due process. Carabini v. Super. Ct., 26 Cal. App. 4th 239, 244 (1994) (finding
6 that “due process requires an order with such significant impact on the viability of a case not be
7 made without a full opportunity to brief the issues and present evidence.”)
8 B. Even If the Barber Plaintiffs Could Seek Emergency Relief, They Are Not
Entitled To Intervene In This Case.
9
1. Intervention here is permissive, not mandatory
10
Generally a putative class member may intervene in a case purporting to be brought on his
11
or her behalf. Mann v. Super. Ct. , 53 Cal. App. 2d 272, 280 (1942). This entitlement is
12
permissive, not mandatory. Id. A putative intervenor has the burden of showing an impairment
13
of his interest and the plaintiff's inadequacies. People v. Brophy, 49 Cal. App. 2d 15, 34 (1942).
14
Further, the court may permit intervention only if the intervenor has a direct and immediate
15
interest in the litigation and the intervention will not enlarge the issues in the case. City of Malibu
16
v. Cal. Coastal Com., 128 Cal. App. 4th 897, 902 (2005); Truck Ins. Exch. v. Super. Ct., 60 Cal.
17
App. 4th 342, 346 (1997). “The permissive intervention statute balances the interests of others
18
who will be affected by the judgment against the interests of the original parties in pursuing their
19
litigation unburdened by others.” San Francisco v. State of Cal., 128 Cal. App. 4th 1030, 1036
20
(2005). As detailed below, Barber Plaintiffs have no interest in this litigation.
21
2. Barber Plaintiffs cannot be prejudiced here because they have no
22 property interest at stake.
In sum, the party seeking to intervene must have a direct and immediate interest in the
23
outcome of the litigation; i.e., he or she must stand to gain or lose by direct operation of the
24
judgment. Fireman’s Fund Ins. Co. v. Gerlach, 56 Cal. App. 3d 299, 303-05 (1976); US
25
26 1
Plaintiff must file a declaration stating affirmatively the factual basis for emergency or other statutory basis for this
ex parte motion, which he will not be able to do. See Cal. Rule of Court 3.1202(c) (application for ex parte relief
27 must be accompanied by a declaration containing an “affirmative factual showing” consisting of “competent
testimony based on personal knowledge of irreparable harm, immediate danger or any other statutory basis for
28 granting relief ex parte”).
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1 Ecology, Inc. v. State of Cal., 92 Cal. App. 4th 113, 140 (2001); San Francisco, 128 Cal. App.
2 4th at 1037. The Barber Plaintiffs fail that basic test here. They are not prejudiced by the Court
3 granting approval of the settlement because, as has been explained to them in detail, they do not
4 have a property interest in a PAGA claim: “absent employees do not own a personal claim for
5 PAGA civil penalties . . . and whatever personal claims the absent employees might have for
6 relief are not at stake.” Williams v. Superior Court, 3 Cal. 5th 531, 547 (2017) (internal citations
7 omitted). “The civil penalties recovered on behalf of the state under the PAGA are distinct from
8 the statutory damages to which employees may be entitled in their individual capacities” Iskanian
9 v. CLS Transportation Los Angeles, LLC, 59 Cal.4th at p. 381 (2014).
10 There simply is no right for Barber Plaintiffs to intervene here and, even if there were, a
11 noticed motion would be the only procedurally proper way to seek that intervention. Ex parte
12 relief is not an appropriate remedy for counsel’s lack of diligence in pursuing intervention here.
13 The Barber Plaintiffs did not seek to intervene when they notified Chipotle that they were
14 refusing to attend the mediation on September 27, 2019 because Chipotle would not guarantee an
15 opening offer of $1,000,000, despite being well aware that this case, along with all of the other
16 related cases, including theirs, were subject to the mediation. Contrary to their self-serving and
17 unsupported claims, they never so much as inquired about the terms of the settlement after the
18 October 1 mediation and, of course, did not seek to intervene at that time. They did not seek to
19 intervene when the Turley plaintiffs filed their Motion for Preliminary Approval on January 31.
20 They did not seek to intervene here when they filed their ex parte application to intervene in
21 Turley on February 10, for a hearing they scheduled for February 11. They did not seek to
22 intervene here, despite being on notice that these PAGA cases settled at the October 1 mediation,
23 until today, March 9 for a hearing tomorrow, March 10, in Modesto. They do so without having
24 served Chipotle at all. Barber Counsel’s behavior and gamesmanship cannot be rewarded here.
25 C. The Barber Plaintiffs’ Actions Have Shown Their Counsel Places Their Own
Interests Over Those Of The Aggrieved Employees and the State.
26
27 Even if the ex parte application here was permissible and appropriate, Barber Plaintiffs’
28 attack on the settlement here is wholly unsupported by fact or law. While the Barber Plaintiffs
DLA P I PER LLP (US)
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DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE
1 attempt to argue that they are prejudiced, they can present no evidence of any impropriety in the
2 settlement and, most importantly, that they have any property interest in the settlement here. See
3 Williams v. Superior Court, supra. Simply, the agreement was fully and fairly negotiated and
4 there is no evidence to the contrary. See, e.g., Smith v. CRST Van Expedited, Inc., No. 10-CV-
5 1116- IEG (WMC), 2012 WL 5873701, at *4 (S.D. Cal. Nov. 20, 2012) (overruling plaintiff’s
6 objection to basis of scope of release and denying requests for intervention because “he makes no
7 showing of anything suggesting impropriety on the part of the settling parties. [Plaintiff] simply
8 appears unhappy that his was not the class [defendant] chose to settle with, and thus this
9 insinuation provides no support to his objection.”) (citations omitted) (emphasis added).
10 IV. CONCLUSION
11 While Chipotle was denied the opportunity to prepare a thorough opposition to Plaintiff’s
12 intervention request (and to address multiple falsehoods made by Barber counsel therein) due to
13 Barber counsel’s failure to serve their moving papers on Chipotle, there is no emergency
14 requiring immediate relief, and no legal authority to permit the requested intervention in this
15 PAGA action. Moreover, Barber Plaintiffs have evidenced that they only care about maximizing
16 their own attorneys’ fees, and their actions here are a blatant attempt to strip the aggrieved
17 employees and the state of a more than $5 million settlement obtained on their behalf by
18 competent counsel. It is respectfully requested that Barber Plaintiff’s requested relief be denied.
19
20 DATED: March 9, 2020 DLA PIPER LLP (US)
21
22
By
23 ANGELA C. AGRUSA
LEVI W. HEATH
24 STEVE L. HERNÁNDEZ
Attorneys for Defendant
25 CHIPOTLE MEXICAN GRILL, INC. and
CHIPOTLE SERVICES, LLC
26
27
28
DLA P I PER LLP (US)
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Preview
1 DLA PIPER LLP (US) Electronically Filed Angela C. Agrusa (SBN 131337) 3/9/2020 9:17 PM 2 angela.agrusa@us.dlapiper.com Superior Court of California 3 Levi W. Heath (SBN 220854) County of Stanislaus levi.heath@us.dlapiper.com Clerk of the Court 4 Steve L. Hernández (SBN 229065) By: Joshua Teixeira, Deputy steve.hernandez@us.dlapiper.com 5 2000 Avenue of the Stars Suite 400 North Tower 6 Los Angeles, California 90067-4704 7 Tel: (310) 595-3000 Fax: (310) 595-3300 8 Attorneys for Defendants 9 CHIPOTLE SERVICES, LLC 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF STANISLAUS 12 13 JERAE PORRAS, MANDI SANCHEZ, JASON Case No.: CV-19-000937 LE SURE, KADIEDRA CRAWFORD, AND 14 JANIE SALGUERO as aggrieved employees ASSIGNED FOR ALL PURPOSES TO pursuant to the Private Attorneys General Act HON. ROGER M. BEAUCHESNE, 15 (“PAGA”), DEPT. 24 16 Plaintiffs, DEFENDANT CHIPOTLE SERVICES, LLC’S OPPOSITION 17 vs. TO EX PARTE MOTION TO INTERVENE 18 CHIPOTLE SERVICES, LLC, a Colorado limited liability company and DOES 1 through 10, inclusive, [Filed concurrently with Decl. of 19 Steve L. Hernández] 20 Defendants. Date: March 11, 2020 Time: 8:30 a.m. 21 Judge: Roger M. Beauchesne Dept.: 24 22 Stanislaus Superior Courthouse 800 11th Street 23 Modesto, CA 95354 24 25 26 27 28 DLA P I PER LLP (US) LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 I. INTRODUCTION 2 Proposed Interveners (“Barber Plaintiffs”) here have repeatedly abused the ex parte 3 process as a means to both seek to upend settlements that Chipotle and the Parties in the instant 4 case reached after extensive, arms-length negotiations and to inappropriately harass Defendant 5 and Plaintiffs in this and other related cases. Despite having been provided extensive authority 6 explaining the futility of their ex parte application and their lack of standing to object in these 7 PAGA actions, they nevertheless filed their ex parte application. They did so having been told by 8 the Court in the related Turley case that the proper use of the ex parte process would be to file a 9 regularly noticed motion, followed by an ex parte application for an order shortening time. 10 Further, while Barber Counsel did notify Chipotle’s counsel (Levi Heath and Steve L. Hernández) 11 on Monday, March 9 of their intent to appear on Tuesday March 10 for the ex parte hearing, they 12 did not properly serve their moving papers on Chipotle at all. 13 There is nothing in Barber Plaintiff’s moving papers that shows why ex parte relief is 14 appropriate here, let alone where they have failed to serve their moving papers on Defendants. 15 Further, Proposed Intervenors continue their pattern and practice of brazenly violating the rules of 16 evidence by misstating the facts surrounding both their refusal to participate in mediation and the 17 settlement process that lead to the settlement pending before this Court. 18 Counsel’s efforts to stake a claim for their own attorneys’ fees is not an emergency that 19 needs ex parte relief. Barber counsel only demonstrate the prejudice of their actions to the 20 interests of the aggrieved employees at issue (and the state) here by bringing this motion. Rather 21 than respecting the Court’s and the state’s role in evaluating the fairness of the PAGA settlement, 22 they seek to short-circuit the process by becoming involved in the case now, over five months 23 after the mediation they were aware of and were invited to attend. 24 Barber counsel’s attempt to intervene with moving papers numbering over 800 pages, via 25 the ex parte process and without providing Defendant the moving papers is irredeemably unfair 26 and improper. They cannot be permitted to use the ex parte process to raise substantive 27 arguments properly raised only via a noticed motion to avoid proper judicial hearing procedures. 28 The Barber Plaintiffs’ transparent motivation—to disrupt the settlement reached by the Parties DLA P I PER LLP (US) -1- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 that did not include them because of their last-minute, self-centered decision to skip a 2 mediation—is not sufficient grounds for the relief requested via the ex parte process. Plaintiffs 3 requested relief must be denied and, at the very least, the Parties to this case should be permitted 4 to brief the proposed intervention via regularly noticed motion. This is especially true for 5 Chipotle, which only received Plaintiff’s moving papers this afternoon from different counsel, 6 hours after Barber counsel apparently served them on some of the other Parties to this case. 7 II. FACTUAL SUMMARY 8 As mentioned in Barber Plaintiff’s moving papers, on September 23, 2019 the Orange 9 County Superior Court issued an Order staying the Barber case in its entirety. Barber counsel’s 10 purely monetary motivations reared their ugly head when, only two working days before the long- 11 scheduled October 1 mediation, they backed out of attending the mediation where they would 12 have been able to uphold their fiduciary duties by negotiating on behalf of their putative class. 13 Declaration of Steve L. Hernández Decl. (“Hernández Decl.”) ¶ 2. Contrary to their self-serving 14 assertions, Barber counsel had agreed to attend the mediation without having taken a PMQ and 15 without the purportedly necessary data until two working days prior to the mediation. Id. In fact, 16 Barber counsel dropped out of the mediation only hours after Chipotle refused to acquiesce to 17 their demand of an opening offer of $1,000,000. Id. Barber counsel’s attempt to gloss over this 18 inconvenient fact is shocking considering the documentary evidence. 19 On October 1, 2019 the Parties mediated the instant PAGA case (formerly three separate 20 PAGA cases), along with a class action case in San Francisco and resolved all of the actions. Id. 21 at ¶ 3. Despite being aware of the mediation, Barber counsel never asked defense counsel about 22 the outcome of that mediation and did not file a motion to intervene at that time. Id. ¶ 4. Further, 23 they did not file a motion to intervene at the time they filed their ex parte motion to Intervene in 24 the Turley v. Chipotle matter in San Francisco, despite them being advised that this case was also 25 settled at that time. 26 To make matters worse, Barber counsel again (they did so in Turley, as well) unfairly 27 drags the good name of well-regarded mediator Jeff Krivis through the mud by submitting 28 inadmissible hearsay attributing to him a statement that is demonstrably false. Id. at ¶ 2. The DLA P I PER LLP (US) -2- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 truth of the matter is that Chipotle, by counsel, informed Mr. Krivis of the listed the filing dates, 2 claims, and nature of each of the cases contemplated by the settlement, including Barber, 3 discussed with him the information Barber counsel were seeking, and what information Barber 4 counsel were and were not provided prior to the mediation. Hernández Decl. at ¶ 4. Krivis was 5 also made aware that Barber counsel dropped out of the mediation only Chipotle refused to make 6 Barber counsel’s requested pre-mediation offer of $1 million. Id. Finally, there is no doubt that 7 Mr. Krivis was fully aware of the breadth of the release he helped negotiate and that all of the 8 claims in all of the pending actions, including Barber, were covered by the settlement. Id. There is 9 little doubt that Mr. Krivis would testify to the veracity of these statements should the Court 10 require it and the Parties have sufficient time to respond to Barber Counsel’s ill-advised, 11 improperly noticed ex parte intervention attempt. 12 Barber Plaintiffs admit that they were aware in October 2019 that the Parties in the instant 13 case intended on settling this case and any related claims, including those in Barber. Barber 14 Plaintiffs could have and reasonably should have filed a regularly noticed motion seeking to 15 intervene in this case at that time. They didn’t. They could have filed a regularly noticed motion 16 at various points since, including when they were told numerous times that the instant PAGA 17 cases had settled. They didn’t. Instead, they filed they continue to comport themselves in the 18 most professionally discourteous manner possible, by filing their application less than 24 hours 19 before the hearing they scheduled ex parte and without providing the lone Defendant proper 20 notice at all. 21 III. ARGUMENT 22 A. The Barber Plaintiffs’ Ex Parte Motion is Procedurally Improper. 23 The substance of the Barber Plaintiffs’ motion would properly be brought a notice 24 motion, not as an ex parte motion forcing Plaintiff’s counsel and Chipotle to respond 25 immediately. This is doubly prejudicial to Chipotle, which only received the moving papers from 26 Plaintiff’s counsel here hours after they were apparently served. 27 Only limited forms of relief are available ex parte, and generally are only authorized if 28 permitted by statute, for example, to authorize discovery by plaintiff during the “hold” on DLA P I PER LLP (US) -3- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 discovery at the outset of the case (see CCP §§ 2025.210 (b), 2030.020(b), (d)) or to control 2 deposition scheduling (see CCP § 2025.270).1 Here, where the Barber Plaintiffs could have 3 sought to intervene while providing regular notice, there is no emergency, no basis for ex parte 4 relief and only a regularly noticed motion and the full opportunity to brief the issues would 5 provide Chipotle due process. Carabini v. Super. Ct., 26 Cal. App. 4th 239, 244 (1994) (finding 6 that “due process requires an order with such significant impact on the viability of a case not be 7 made without a full opportunity to brief the issues and present evidence.”) 8 B. Even If the Barber Plaintiffs Could Seek Emergency Relief, They Are Not Entitled To Intervene In This Case. 9 1. Intervention here is permissive, not mandatory 10 Generally a putative class member may intervene in a case purporting to be brought on his 11 or her behalf. Mann v. Super. Ct. , 53 Cal. App. 2d 272, 280 (1942). This entitlement is 12 permissive, not mandatory. Id. A putative intervenor has the burden of showing an impairment 13 of his interest and the plaintiff's inadequacies. People v. Brophy, 49 Cal. App. 2d 15, 34 (1942). 14 Further, the court may permit intervention only if the intervenor has a direct and immediate 15 interest in the litigation and the intervention will not enlarge the issues in the case. City of Malibu 16 v. Cal. Coastal Com., 128 Cal. App. 4th 897, 902 (2005); Truck Ins. Exch. v. Super. Ct., 60 Cal. 17 App. 4th 342, 346 (1997). “The permissive intervention statute balances the interests of others 18 who will be affected by the judgment against the interests of the original parties in pursuing their 19 litigation unburdened by others.” San Francisco v. State of Cal., 128 Cal. App. 4th 1030, 1036 20 (2005). As detailed below, Barber Plaintiffs have no interest in this litigation. 21 2. Barber Plaintiffs cannot be prejudiced here because they have no 22 property interest at stake. In sum, the party seeking to intervene must have a direct and immediate interest in the 23 outcome of the litigation; i.e., he or she must stand to gain or lose by direct operation of the 24 judgment. Fireman’s Fund Ins. Co. v. Gerlach, 56 Cal. App. 3d 299, 303-05 (1976); US 25 26 1 Plaintiff must file a declaration stating affirmatively the factual basis for emergency or other statutory basis for this ex parte motion, which he will not be able to do. See Cal. Rule of Court 3.1202(c) (application for ex parte relief 27 must be accompanied by a declaration containing an “affirmative factual showing” consisting of “competent testimony based on personal knowledge of irreparable harm, immediate danger or any other statutory basis for 28 granting relief ex parte”). DLA P I PER LLP (US) -4- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 Ecology, Inc. v. State of Cal., 92 Cal. App. 4th 113, 140 (2001); San Francisco, 128 Cal. App. 2 4th at 1037. The Barber Plaintiffs fail that basic test here. They are not prejudiced by the Court 3 granting approval of the settlement because, as has been explained to them in detail, they do not 4 have a property interest in a PAGA claim: “absent employees do not own a personal claim for 5 PAGA civil penalties . . . and whatever personal claims the absent employees might have for 6 relief are not at stake.” Williams v. Superior Court, 3 Cal. 5th 531, 547 (2017) (internal citations 7 omitted). “The civil penalties recovered on behalf of the state under the PAGA are distinct from 8 the statutory damages to which employees may be entitled in their individual capacities” Iskanian 9 v. CLS Transportation Los Angeles, LLC, 59 Cal.4th at p. 381 (2014). 10 There simply is no right for Barber Plaintiffs to intervene here and, even if there were, a 11 noticed motion would be the only procedurally proper way to seek that intervention. Ex parte 12 relief is not an appropriate remedy for counsel’s lack of diligence in pursuing intervention here. 13 The Barber Plaintiffs did not seek to intervene when they notified Chipotle that they were 14 refusing to attend the mediation on September 27, 2019 because Chipotle would not guarantee an 15 opening offer of $1,000,000, despite being well aware that this case, along with all of the other 16 related cases, including theirs, were subject to the mediation. Contrary to their self-serving and 17 unsupported claims, they never so much as inquired about the terms of the settlement after the 18 October 1 mediation and, of course, did not seek to intervene at that time. They did not seek to 19 intervene when the Turley plaintiffs filed their Motion for Preliminary Approval on January 31. 20 They did not seek to intervene here when they filed their ex parte application to intervene in 21 Turley on February 10, for a hearing they scheduled for February 11. They did not seek to 22 intervene here, despite being on notice that these PAGA cases settled at the October 1 mediation, 23 until today, March 9 for a hearing tomorrow, March 10, in Modesto. They do so without having 24 served Chipotle at all. Barber Counsel’s behavior and gamesmanship cannot be rewarded here. 25 C. The Barber Plaintiffs’ Actions Have Shown Their Counsel Places Their Own Interests Over Those Of The Aggrieved Employees and the State. 26 27 Even if the ex parte application here was permissible and appropriate, Barber Plaintiffs’ 28 attack on the settlement here is wholly unsupported by fact or law. While the Barber Plaintiffs DLA P I PER LLP (US) -5- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE 1 attempt to argue that they are prejudiced, they can present no evidence of any impropriety in the 2 settlement and, most importantly, that they have any property interest in the settlement here. See 3 Williams v. Superior Court, supra. Simply, the agreement was fully and fairly negotiated and 4 there is no evidence to the contrary. See, e.g., Smith v. CRST Van Expedited, Inc., No. 10-CV- 5 1116- IEG (WMC), 2012 WL 5873701, at *4 (S.D. Cal. Nov. 20, 2012) (overruling plaintiff’s 6 objection to basis of scope of release and denying requests for intervention because “he makes no 7 showing of anything suggesting impropriety on the part of the settling parties. [Plaintiff] simply 8 appears unhappy that his was not the class [defendant] chose to settle with, and thus this 9 insinuation provides no support to his objection.”) (citations omitted) (emphasis added). 10 IV. CONCLUSION 11 While Chipotle was denied the opportunity to prepare a thorough opposition to Plaintiff’s 12 intervention request (and to address multiple falsehoods made by Barber counsel therein) due to 13 Barber counsel’s failure to serve their moving papers on Chipotle, there is no emergency 14 requiring immediate relief, and no legal authority to permit the requested intervention in this 15 PAGA action. Moreover, Barber Plaintiffs have evidenced that they only care about maximizing 16 their own attorneys’ fees, and their actions here are a blatant attempt to strip the aggrieved 17 employees and the state of a more than $5 million settlement obtained on their behalf by 18 competent counsel. It is respectfully requested that Barber Plaintiff’s requested relief be denied. 19 20 DATED: March 9, 2020 DLA PIPER LLP (US) 21 22 By 23 ANGELA C. AGRUSA LEVI W. HEATH 24 STEVE L. HERNÁNDEZ Attorneys for Defendant 25 CHIPOTLE MEXICAN GRILL, INC. and CHIPOTLE SERVICES, LLC 26 27 28 DLA P I PER LLP (US) -6- LOS A NG EL ES DEFENDANT’S OPPOSITION TO EX PARTE APPLICATION TO INTERVENE