Filed 6/14/22 Turley v. Chipotle Services CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
TANIKA TURLEY,
Plaintiff and Respondent,
v.
CHIPOTLE SERVICES, LLC, A162513
Defendant and Respondent;
(City & County of San Francisco
JOSH BARBER, Super. Ct. No. CGC-15-544936)
Intervener and Appellant.
Josh Barber appeals an order denying his request to intervene in this
action in which Tanika Turley settled, on behalf of a class of nonexempt
employees, various causes of action for violations of the Labor Code, as well
as a related cause of action under the Private Attorneys General Act of 2004
(PAGA) (Lab. Code,1 § 2698 et seq.), against Chipotle Services, LLC
(Chipotle). Barber had filed a similar putative class action against Chipotle
on behalf of nonexempt managerial employees. Turley and Chipotle argue,
among other things, that the appeal is moot in light of the finality of the
judgment entered in this action and the distribution and acceptance of all
1 All statutory references are to the Labor Code unless otherwise noted.
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settlement funds by the state and class members. We agree and, accordingly,
shall dismiss the appeal.2
Background
In March 2015, Turley, a former nonexempt employee of Chipotle, filed
a class action complaint against Chipotle in San Francisco County Superior
Court on behalf of a putative class of all nonexempt California employees (the
Turley action). As amended in July 2015, the complaint in this action alleged
seven causes of action: (1) failure to make timely payment of wages (§§ 201–
203); (2) failure to provide compliant wage statements (§ 226, subd. (a)); (3)
failure to provide proper response to document request (§ 226, subds. (b), (c)
& (f)); (4) failure to provide proper rest breaks (§ 226.7); (5) failure to provide
proper meal breaks (§ 226.7); (6) disgorgement of profits and injunction under
the unfair competition law (Bus. & Prof. Code, § 17200 et seq.); and (7) a
PAGA claim for civil penalties.
In July 2016, Barber, a former nonexempt managerial employee of
Chipotle, filed a class action complaint against Chipotle in Orange County on
behalf of a putative class of nonexempt managerial employees in California.
As amended, Barber’s complaint alleged nine causes of action: (1) failure to
pay all regular and overtime wages (§§ 510, 1194, 1198); (2) failure to pay
minimum wages (§§ 1194, 1194.2, 1197, 1197.1); (3) failure to provide meal
periods (§§ 226.7, 512); (4) failure to provide rest periods (§ 226.7); (5) failure
to provide accurate wage statements (§§ 226, 1174–1175); (6) failure to pay
all wages due upon ending of employment (§§ 201–203); (7) failure to
reimburse work expenses (§ 2802); (8) violation of the unfair competition law
(Bus. & Prof. Code, § 17200 et seq.); and (9) civil penalties under PAGA.
2 Respondents’ request for judicial notice is denied.
2
In November 2018, the court in this Turley action certified a class with
respect to a single cause of action. The class was defined to include all
individuals who were hired by Chipotle before August 1, 2014, and thereafter
issued wage statements for services performed at any time from October 2,
2014, to March 29, 2015.
After mediation in October 2019, an agreement to settle this action was
submitted to the court for approval. The agreement defined the settlement
class to include “all current and former non-exempt employees of [Chipotle]
that worked in California at any time between October 1, 2014 and the
earlier of March 1, 2020 or preliminary approval (‘Class Period’).” The class
was broken into two separate sub-classes: the “Wage Statement Class”
composed of approximately 7,000 “current and former nonexempt employees
of [Chipotle], who were hired before August 1, 2014 and who worked in
California at any time during the Class Period”; and (2) an additional
“Omnibus Class” consisting of approximately 70,000 more class members who
were not part of the Wage Statement Class. Both proposed classes included
nonexempt, managerial employees.
As part of the settlement agreement, Chipotle and Turley stipulated to
the filing of a second amended complaint which, among other things, added
causes of action for failure to pay proper overtime (§§ 510, 1194, 1198),
failure to provide proper minimum wage (§§ 1194, 1194.2, 1197, 1197.1), and
failure to reimburse necessary expenses (§ 2802).
Under the proposed settlement agreement, in exchange for a release of
all claims by members of both the Wage Statement Class and the Omnibus
Class, Chipotle agreed to pay approximately $3 million in cash and food
vouchers, with $1.75 million going to the Wage Statement Class, up to
$800,000 in food vouchers or cash to the Omnibus Class members (who would
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each receive either a $12 Chipotle meal voucher or $6 in cash), and the
balance for attorney fees and expenses, claims administration, service awards
not to exceed $10,000 each for Turley and another class representative, and a
$10,000 PAGA payment to the State of California.
In February 2020, Barber filed an application to intervene in this
action. The court denied the motion, noting that Barber, as a member of the
Wage Statement Class, could adequately protect his interests by opting out or
objecting to the settlement.
In March and July 2020, the court twice denied motions for preliminary
approval of the settlement. In its March order, the court questioned, among
other things, whether one subclass was being “unfairly benefitted” at the
expense of the other subclass. It also questioned whether the named plaintiff
was an adequate representative for the omnibus class because her $10,000
enhancement payment far exceeded that of the 70,000 employees who would
receive either $6 cash payment or a $12 meal voucher. In its July order, the
court reiterated its concerns regarding the treatment of the omnibus class.
In September 2020, Turley filed a third motion for preliminary
approval of a revised settlement agreement. The revised agreement
eliminated from the scope of the complaint and the settlement the claims of
the Omnibus Class. The agreement released only the claims of the roughly
7,000 members of the Wage Statement Class. The revised settlement
agreement also excluded from the Wage Statement Class anyone “who had a
pending arbitration or lawsuit against defendant as of August 1, 2020.” As a
result, Barber was excluded from the revised settlement class because of his
pending lawsuit.
Under the revised settlement agreement, the $1.75 million gross
settlement amount would be used to pay attorney fees in an amount not to
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exceed 33.33 percent ($583,333), recoverable costs not to exceed $25,000,
settlement administration fees not to exceed $50,000, a PAGA payment to the
state for $50,000, a service award to Turley not to exceed $2,500, and a “net
settlement amount” of just over $1 million for payment of claims to the class
members.
In October 2020, the court conditionally certified the settlement class
and granted preliminary approval of the revised settlement agreement.
In January 2021, Barber filed a second application for intervention
accompanied by proposed objections to the revised settlement agreement. On
February 16, the trial court denied Barber’s motion, finding that Barber did
not have an interest in the litigation that supports intervention. Barber
timely filed a notice of appeal from the order denying his application to
intervene.
Thereafter, the court approved the settlement and entered judgment.
Barber filed a motion to vacate the judgment, challenging the adequacy of
Turley to represent the class and the fairness of the settlement. After the
motion was denied, Barber timely filed a notice of appeal from the denial of
his motion to vacate.
Barber’s appeals were consolidated for briefing and decision. In his
opening brief, Barber has advised that he is no longer pursuing his appeal of
the denial of his motion to vacate. His request for dismissal of that appeal
was granted and the appeal dismissed.
Discussion
“A case is moot when the decision of the reviewing court ‘can have no
practical impact or provide the parties effectual relief. [Citation.]’ [Citation.]
‘When no effective relief can be granted, an appeal is moot and will be
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dismissed.’ ” (MHC Operating Limited Partnership v. City of San Jose (2003)
106 Cal.App.4th 204, 214.)
The judgment entered in this case is now final. No party to the
settlement has appealed the judgment or challenged the order approving the
settlement and the settlement proceeds have been distributed. There are no
further proceedings or approvals for which the court has reserved
jurisdiction. By relinquishing his challenge to the denial of his motion to
vacate, Barber has foregone any challenge to the judgment or to the order
approving the settlement.3
Contrary to Barber’s suggestion, his appeal from the order denying his
motion to intervene did not affect the finality of the judgment. He argues,
“although Barber’s exclusion from the revised settlement class and the order
denying his motion to intervene deprived him of standing to appeal directly
from the final approval order or judgment, his appeal from the intervention
order obviously calls into question the validity of the final approval order.”
He suggests, without citation to relevant authority,4 that if this court were to
reverse the order denying his motion to intervene, we could direct the trial
3 In Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 72–73, this
court held, contrary to a decision from the Second Appellate District (Turrieta
v. Lyft, Inc. (2021) 69 Cal.App.5th 955, 967-968), that a PAGA representative
in one action has standing to move to vacate a judgment following a
settlement of another PAGA action with overlapping PAGA claims and
therefore has standing to appeal that judgment and challenge final approval
of the settlement. Our decision was filed 15 days before Barber filed his
opening brief waiving any challenge to the denial of his motion to vacate the
judgment.
4Barber’s citation to Civil Code section 43 and Continental Cas. Co. v.
Phoenix Constr. Co.(1956) 46 Cal.2d 423, 440–441, regarding the court’s
general authority to reverse with directions, provides no such authority.
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court to set aside the judgment and reconsider its order approving the
settlement. We disagree.
Because the judgment is now final, the court has no authority to set it
aside or to order the beneficiaries of the settlement to return whatever
proceeds they may have received. (See 2 Witkin, Cal. Procedure (6th ed.
2022) Jurisdiction, § 344 [“Where, by lapse of time for appeal or other direct
attack on the judgment (e.g., motion for new trial, motion to vacate) the cause
becomes final, it is no longer pending and the court has no further
jurisdiction of the subject matter.”].) It has long been the rule that “[w]here
the judgment in a cause, rendered in the trial court, has become final, an
appeal from an order denying intervention in such cause will be dismissed, as
a reversal of such order would be of no avail.” (Hindman v. Owl Drug Co.
(1935) 4 Cal.2d 451, 456; see also Redevelopment Agency v. Commission on
State Mandates (1996) 43 Cal.App.4th 1188, 1198 [recognizing that appeal
from denial of motion to intervene would be rendered moot by subsequent
entry of judgment but exercising authority to resolve appeal that raised
important legal question]; 9 Witkin, Cal. Procedure (6th ed. 2022) Appeal,
§ 781 [“a final judgment may render moot an appeal from a prior order”],
citing Hindman v. Owl Drug Co., supra, 4 Cal.2d at p. 456 and Keefer v.
Keefer (1939) 31 Cal.App.2d 335, 337 [“subsequent judgment in another case,
after consolidation for trial, rendered moot appeal from order denying change
of venue in first case”].)
To the extent some cases have concluded that denial of a motion for
intervention is not rendered moot by a subsequently entered judgement,
those cases are distinguishable. In both In re Veterans’ Industries, Inc. (1970)
8 Cal.App.3d 902 and Linder v. Vogue Investments, Inc. (1966) 239
Cal.App.2d 338, although the time for appeal of the judgment had passed, the
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courts nonetheless retained the ability to provide the intervenor some
effective relief. In In re Veterans’ Industries, Inc., supra, at pages 916–917,
the judgment required that certain assets be placed in a blocked account and
it reserved jurisdiction for the trial court to make further orders to
implement and supplement the judgment pending outcome of appeal. In
Linder, supra, at page 343, the time within which a party could move to set
aside a default judgment had not lapsed, so that appellant, if permitted to
intervene, could make such a motion. In this case, however, at this point
there is no effective relief that can be provided even if it was error to deny
intervention. Accordingly, we shall dismiss the appeal.
Disposition
The appeal is dismissed.
POLLAK, P. J.
WE CONCUR:
STREETER, J.
BROWN, J.
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