Porras v. Chipotle Services CA5

Filed 9/14/22 Porras v. Chipotle Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

JERAE PORRAS et al.,
F081113 & F081670
Plaintiffs and Respondents,
(Super. Ct. No. CV-19-000937)
v.

CHIPOTLE SERVICES, LLC et al., ORDER MODIFYING OPINION AND
DENYING REHEARING
Defendants and Respondents; [NO CHANGE IN JUDGMENT]

JOSE DELGADO,

Movant and Appellant.

THE COURT:
It is ordered that the opinion filed herein on August 18, 2022, be modified as
follows:
On page 18, immediately before the DISPOSITION insert part III. as follows:

III. PETITION FOR REHEARING

Delgado contends the opinion misstates material facts because it
likely misconstrued the trial court’s rationale. His petition for rehearing
fails to cite any authority for how a trial court’s decision is interpreted on
appeal. Applicable principles of appellate procedure state that a trial
court’s judgment or order is presumed correct and, thus, all intendments
and presumption are indulged to support the judgment or order on matters
as to which the record is silent. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564.) We applied these principles to identify the trial court’s
implied determinations. Thus, we reject Delgado’s contention that the trial
court’s decision was misinterpreted.

Delgado contends the opinion’s analysis of standing under section
663 contains legal error because it addresses his personal stake in the action
rather than his interest as a representative of the State deputized by the
LWDA. In effect, Delgado contends his interest is immediate, substantial
and pecuniary because the State’s interest is immediate, substantial and
pecuniary. Assuming for purposes of argument that the focus should not
have been on Delgado’s personal pecuniary stake in the PAGA penalties,
we adopt the alternate rationale that he lacks standing to bring a motion to
vacate under section 663 under the bright line rule that nonparty employees,
who are plaintiffs in other PAGA lawsuits against the defendant, lack
standing to bring a motion to set aside the judgment pursuant to section
663. (Turrieta, supra, 69 Cal.App.5th at p. 970.)

Delgado contends that even if his motion under section 663 had
procedural defects, he may appeal directly from the judgment. Section 902
provides in part: “Any party aggrieved may appeal in the cases prescribed
in this title.” Delgado asserts that as an aggrieved employee for purposes of
PAGA, he also is aggrieved for purposes of section 902. First, being an
aggrieved employee under PAGA does not necessarily qualify Delgado as a
“party aggrieved” (§ 902) with standing to appeal directly from the
judgment. The word “aggrieved” does not mean the same thing in both
statutes. Second, we conclude that Delgado lacks standing to appeal
directly from the judgment for the same reasons he lacked standing to bring
a motion under 663. We note that standing to appeal directly from a
judgment also is an issue pending before our Supreme Court. (See
Turrieta, supra, 69 Cal.App.5th at p. 974 [appellants were “not ‘aggrieved’
for the purposes of standing to move to vacate or appeal from that
judgment”].)

Delgado contends the opinion omits a material fact because it does
not state he never deposited or cashed the settlement check for $30.91.
That fact was relevant to the parties’ arguments about mootness of his
appeal from the denial of his motion to vacate and his direct appeal from
the judgment, but is not relevant to the analysis of the issues addressed in
the opinion.

There is no change in the judgment. Appellant’s petition for rehearing filed on
September 2, 2022, is denied.

2.
 FRANSON, J.
WE CONCUR:

POOCHIGIAN, ACTING P. J.

SMITH, J.

3.
Filed 8/18/22 Porras v. Chipotle Services CA5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE 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

FIFTH APPELLATE DISTRICT

JERAE PORRAS et al.,
F081113 & F081670
Plaintiffs and Respondents,
(Super. Ct. No. CV-19-000937)
v.

CHIPOTLE SERVICES, LLC et al., OPINION
Defendants and Respondents;

JOSE DELGADO,

Movant and Appellant.

APPEAL from a judgment of the Superior Court of Stanislaus County. Sonny S.
Sandhu, Judge.
Niddrie Addams Fuller Singh, John S. Addams, Rupa G. Singh; Hogue & Belong,
Jeffrey L. Hogue, Tyler J. Belong; Law Offices of Devon K. Roepcke and Devon K.
Roepcke for Movant and Appellant.
Capstone Law, Ryan H. Wu and John E. Stobart for Plaintiff and Respondent
JeRae Porras.
Winston Law Group and David S. Wintson for Plaintiff and Respondent Mandi
Sanchez.
 Harris & Ruble, Alan Harris, David Garrett; North Bay Law Group and David
Harris for Plaintiffs and Respondents Jason LeSure, Kadiedra Crawford, and Janie
Salguero.
DLA Piper, Levi W. Heath and Steve L. Hernandez for Defendant and
Respondent.
-ooOoo-
Jose Delgado appeals the denial of his application to intervene in a Stanislaus
County action to recover civil penalties under the Labor Code Private Attorneys General
Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) against defendant Chipotle Services,
LLC, a Colorado limited liability company (Chipotle). Delgado also appeals the denial
of his motions to vacate the judgment entered in the Stanislaus County action after the
trial court approved a $4.9 million settlement. Delgado is a plaintiff in an Orange County
class action that includes a PAGA cause of action against Chipotle. He contends the
settlement and judgment are inadequate and will harm him because of the res judicata
effect on his representative PAGA claim.
First, we conclude the trial court correctly determined Delgado lacked standing to
bring the motions to vacate the judgment. In particular, the record supports the court’s
determination that appellant failed to demonstrate his asserted interest was sufficiently
immediate, pecuniary, and substantial to provide him standing to challenge the judgment.
Second, Delgado’s appeal from the denial of his application to intervene pursuant to
Code of Civil Procedure section 3871 is rendered moot by our decision to uphold the
denial of his motions to vacate.
We therefore affirm the judgment.

1 All undesignated statutory references are to the Code of Civil Procedure.

2.
 FACTS AND PROCEDURAL HISTORY
When an aggrieved employee wishes to pursue a PAGA representative lawsuit on
behalf of the State of California against his or her employer, the first procedural step is to
provide the employer and the Labor and Workforce Development Agency (LWDA) with
a notice that complies with Labor Code section 2699.3. The notice must identify the
specific Labor Code provisions alleged to have been violated and include the facts and
theories to support each alleged violation. (Lab. Code, § 2699.3, subd. (a)(1)(A).) The
prefiling notice gives the LWDA an opportunity to investigate the alleged Labor Code
violations and issue a citation, if appropriate, and gives the employer an opportunity to
cure the violations. (Lab. Code, § 2699.3, subds. (a)(2), (c)(2).) A proper prefiling
notice is significant because it is a condition of bringing a PAGA action for civil
penalties. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 545.) Thus, if a
particular violation is not adequately described in the notice, the employee may not
pursue it in court or include it in a settlement. (Uribe v. Crown Building Maintenance
Co. (2021) 70 Cal.App.5th 986, 1005 [notice was deficient in identifying failing to
reimburse expenses related to cell phone use; plaintiff could not sue on that ground or
include it in the settlement].)
In this case, plaintiff JeRae Porras provided a prefiling notice to the LWDA and
Chipotle in December 2018. The adequacy of the notice is not an issue addressed in this
opinion and, therefore, we describe it in general terms. It listed many Labor Code
violations including failure to pay wages and overtime, provide breaks, reimburse
business expenses, and maintain accurate records.
In response to Porras’s notice, Chipotle did not give written notice that any of the
alleged violations were cured. (Lab. Code, § 2699.3, subd. (c)(2).) The LWDA
confirmed receipt of the notice and applicable filing fee, but did not otherwise respond
within the 65 days provided by statute. (Lab. Code, § 2699.3, subd. (a)(2)(A).) As a

3.
result, Porras was authorized by statute to commence a PAGA representative action.
(Lab. Code, § 2699.3, subd. (a)(2)(A).)
In February 2019, Porras filed this PAGA action in Stanislaus County Superior
Court (Porras action). Shortly after Porras filed this action, other Chipotle employees
filed PAGA actions in Los Angeles and San Bernardino Counties. Jason LeSure,
Kadiedra Crawford and Janie Salguero were the named plaintiffs in the Los Angeles
lawsuit (LeSure action). Mandi Sanchez was the named plaintiff in the San Bernardino
lawsuit (Sanchez action). As described below, the three PAGA actions were effectively
consolidated in February 2020 when a first amended complaint (FAC) was filed in this
lawsuit and named Porras, Sanchez, LeSure, Crawford and Salguero as plaintiffs
(Plaintiffs).2 Plaintiffs are former nonexempt employees of Chipotle, who worked in
California.
The Barber Action
Another lawsuit against Chipotle that includes a PAGA cause of action began in
Orange County in 2016, when Josh Barber, a former employee of Chipotle, filed a class
action complaint titled Josh Barber v. Chipotle Mexican Grill, Inc., case No. 20-2016-
00864261 (Barber action). The complaint alleged Labor Code violations involving
wages, breaks, and wage statements, but initially did not include a PAGA claim. In July
2019, the PAGA cause of action and Delgado, a former employee of Chipotle, were first
added to the Barber action when a fourth amended class action complaint was filed.
Chipotle responded to the new allegations and new plaintiff by filing a motion to compel
arbitration based on an arbitration agreement Delgado had signed. On September 23,
2019, the trial court in the Barber action granted Chipotle’s motion to compel arbitration

2 Plaintiffs and Chipotle are respondents in this appeal by Delgado, the prospective
intervenor who seeks to undo the settlement. Chipotle joined Plaintiffs’ respondents’
brief rather than filing a separate brief.

4.
of Delgado’s non-PAGA individual claims and stayed further proceedings on the PAGA
claim pending completion of the arbitration.3
Mediation
By April 2019, Chipotle had begun organizing a mediation of the some of the
lawsuits asserting Labor Code violations against it. As a result of these efforts, Chipotle
agreed to mediation with a plaintiff in a putative class action filed in San Francisco
County (Turley action), which included a PAGA claim, and Plaintiffs.4 The attorneys
representing Barber and Delgado declined to participate in the mediation.
The mediation went forward on October 1, 2019, and two settlement agreements
were reached. The first settlement addressed the putative class claims and the
representative PAGA claim in the Turley action. The second settlement addressed the
PAGA claims in the Porras action, the LeSure action, and the Sanchez action.
The Settlement Agreement
In February 2020, Chipotle and Plaintiffs stipulated to the filing of a first amended
complaint in the Porras action that combined their PAGA representative claims for
purposes of implementing the settlement. The trial court approved the stipulation and the
first amended complaint was filed on February 14, 2020. That filing effectively
consolidated the Porras action, the LeSure action, and the Sanchez action.

3 Delgado, the last of the former employees to file a PAGA claim, can be described
as the least effective representative because, unlike the other plaintiffs, his arbitration
agreement prevented him from immediately pursuing the PAGA claim alleged in his
pleading.
The scope of the Labor Code violations included in Delgado’s prefiling notice
under Labor Code section 2699.3 is not described here because, like Porras’s notice,
issues relating to its contents are not addressed in this opinion.
4 At that point, the Porras action, LeSure action, and Sanchez action had yet to be
combined under the Porras action.

5.
 The next step in implementing the settlement agreement was taken on February
26, 2020, when Plaintiffs filed a motion for court approval of the parties’ PAGA
settlement agreement, along with supporting declarations. The hearing on the motion
was scheduled for March 19, 2020.
The PAGA settlement agreement provided that Chipotle would pay $4.9 million to
resolve the PAGA claims. Under the agreement, one third of the settlement amount
($1,633,333.33) was allocated to fees for the attorneys representing the plaintiffs. Up to
$35,000 was allocated to litigation costs and up to $80,440 was allocated to settlement
administration costs. The remaining $3,151,226.67 was characterized as the PAGA
penalties fund; $2,363,420 (75 percent) of the fund went to the LWDA and $787,806.67
(25 percent) was apportioned among the 45,083 aggrieved employees based on the
number of pay periods the employee worked from September 21, 2017, through the date
of the judgment. The average amount of civil penalties paid to an employee was
approximately $17.50. Delgado received a check for $30.91.
In exchange for paying $4.9 million, Chipotle received a release of the
representative PAGA claims for civil penalties. The agreement defined the term “Settled
Claims” very broadly to mean “any and all claims for PAGA civil penalties pursuant to
California Labor Code sections 2698 et seq. under the California Labor Code, Wage
Orders, regulations, and/or other provisions of law alleged or could have been alleged to
have been violated in the [Porras action, LeSure action, and Sanchez action] with respect
to Aggrieved Employees based on or reasonably related to the facts alleged in [those]
Actions during the Settlement Period.” The settlement period ran from September 21,
2017, until the entry of the judgment. The term “Aggrieved Employees” was defined as
all persons employed by Chipotle in nonexempt positions in California during the
settlement period. Under Delgado’s interpretation of the settlement agreement and
related judgment, he is precluded from pursuing his PAGA representative action.

6.
 The PAGA settlement agreement addressed non-PAGA individual claims by
providing that Plaintiffs would release all individual claims arising out of their
employment with Chipotle in exchange for payments of $10,000 each. The agreement
also stated that other aggrieved employees “will not be deemed to have released any
individual wage and hour claims by virtue of this Settlement.” Thus, the settlement and
judgment did not affect Delgado’s individual claims, which had been sent to arbitration
by the Barber court.
Application to Intervene
On March 9, 2020, Delgado filed an ex parte application to intervene pursuant to
section 387. Porras and Chipotle filed opposition papers.
On March 13, 2020, the hearing on Delgado’s application to intervene was held,
with all counsel appearing by CourtCall. At the end of the hearing, the court announced
its ruling from the bench. First, the court concluded Delgado was allowed to make an ex
parte application. Second, based on the lengthy discussion of PAGA in the California
Supreme Court opinion issued the previous day (Kim v. Reins International California,
Inc. (2020) 9 Cal.5th 73), the court determined Delgado, as a nonparty employee, had no
standing to intervene in a PAGA only claim. Third, the court determined the application
to intervene was untimely, based on the facts, declarations and briefs that were submitted,
along with state and federal case law.
In April 2020, counsel for Barber and Delgado filed a notice of appeal of the order
denying their request to intervene. In May 2020, an amended notice of appeal was filed.5

5 On June 22, 2020, Barber filed a request for dismissal of appeal as to himself only.
This court granted the request and, as a result, Delgado is the only appellant in this
matter.

7.
Approval of Settlement and Judgment
On June 19, 2020, the trial court filed an order approving the parties’ PAGA
settlement agreement. The court also filed a judgment implementing its order approving
the settlement.
On June 25, 2020, Delgado filed (1) a motion to vacate the court’s order approving
the PAGA settlement and the related judgment pursuant to section 663 and (2) a motion
to vacate the void judgment pursuant to section 473, subdivision (d).
In August 2020, the trial court issued an order denying Delgado’s motions to
vacate. The court determined Delgado lacked standing to bring the motion to vacate
under section 663 because he failed to demonstrate “that his asserted interest is
sufficiently ‘immediate, pecuniary, and substantial’ to afford him the ability to challenge
the judgment in the context of this PAGA action.” The court also determined Delgado, a
nonparty employee, lacked standing to bring the motion under section 473, subdivision
(d).
In September 2020, Delgado timely appealed the approval of the settlement
agreement and the denial of his motions to vacate the judgment. This court assigned that
appeal case No. F081670. In November 2020, this court ordered case No. F081670
consolidated with this appeal.
DISCUSSION
I. STANDING FOR MOTIONS TO VACATE JUDGMENT
A. Section 663
1. Statutory Text
Section 663 authorizes motions to vacate a judgment by providing in relevant part:

“A judgment or decree … based upon a decision by the court, … may, upon
motion of the party aggrieved, be set aside and vacated by the same court,
and another and different judgment entered, for either of the following
causes, materially affecting the substantial rights of the party and entitling
the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis

8.
 for the decision, not consistent with or not supported by the facts .…”
(Italics added.)
The statute’s use of the term “party” does not create a barrier for Delgado because
one may become a party of record simply by moving to vacate the judgment pursuant to
section 663. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736 (Carleson).)
Consequently, our inquiry considers whether Delgado satisfies the statutory terms
“aggrieved,” “materially affecting” and “substantial rights.”
Delgado will qualify as “aggrieved” only if his “rights or interests are injuriously
affected by the judgment.” (Carleson, supra, 5 Cal.3d at p. 737.) Those interests “ ‘must
be immediate, pecuniary, and substantial and not nominal or a remote consequence of the
judgment.’ ” (Ibid.) Accordingly, “[a] party is aggrieved when the judgment or order
‘has an immediate, pecuniary, and substantial effect on his interests or rights.’ ” (Center
for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 881.)
2. Trial Court’s Decision
On August 26, 2020, the trial court held a hearing related to the motions to vacate
the judgment. During the hearing, the court stated it had issued a tentative ruling on the
two motions and asked counsel to address whether a request for hearing was made in
accordance with the requirements of Stanislaus County Superior Court Local Rule 3.01.
The court determined notice of the request for hearing had not been provided before the
4:00 p.m. deadline. As a result, the court confirmed its tentative ruling without allowing
counsel to present arguments on the merits of the motions.
The minute order issued after the hearing confirmed the trial court’s tentative
ruling and stated that the court did not proceed with oral argument because counsel did
not follow the local rule. The order denied both motions and, with respect to the motion
under section 663, stated:

“The Court finds that the non-party movant lacks standing to bring the
instant motion. Specifically, movant has not demonstrated that his asserted
interest is sufficiently ‘immediate, pecuniary, and substantial’ to afford him

9.
 the ability to challenge the judgment in the context of this PAGA action.
See, e.g. County of Alameda v. Carleson (1971) 5 Cal. 3d 730, 736.)”
We interpret the statement that Delgado did not demonstrate that his asserted
interest was immediate, pecuniary, and substantial to mean that, to the extent findings of
fact were involved, Delgado, as moving party had the burden of proving facts by a
preponderance of the evidence and failed to carry his burden of proof.
3. Standard of Review
Delgado contends that the order denying his motions to vacate based on his lack of
standing presents a pure legal issue that is subject to de novo review. This contention is
incomplete. In San Luis Rey Racing, Inc. v. California Horse Racing Bd. (2017) 15
Cal.App.5th 67, the Fourth District addressed the standard of review applicable to the
question of standing:

“Both standing and the interpretation of statutes are questions of law to
which we typically apply a de novo standard of review. [Citations.]
However, where the superior court makes underlying factual findings
relevant to the question of standing, we defer to the superior court and
review the findings for substantial evidence.” (Id. at p. 73.)
The reference to the need for substantial evidence to support factual findings does
not complete the picture. When a trial court determines that the party with the burden of
proof failed to carry the burden, “ ‘it is misleading to characterize the failure-of-proof
issue as whether substantial evidence supports the judgment.’ ” (Dreyer’s Grand Ice
Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.) “ ‘[W]here the issue
on appeal turns on a failure of proof at trial, the question for a reviewing court becomes
whether the evidence compels a finding in favor of the appellant as a matter of law.’ ”
(Ibid.) A finding is compelled as a matter of law only if appellant’s “ ‘evidence was
(1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave
no room for a judicial determination that it was insufficient to support a finding.” ’ ”
(Ibid.)

10.
 We conclude the finding-compelled-as-a-matter of law standard applies to the
failure of proof determination made by the trial court in ruling that Delgado lacked
standing to pursue his motions to vacate the judgment. We have located no published
case applying this standard of review to a failure of proof determination made in ruling
on a section 663 motion to vacate a judgment. However, that standard of review has been
applied in many other procedural contexts. For instance, the standard has been applied to
failure of proof determinations relating to motions to compel arbitration. (E.g., Fabian v.
Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067; Juen v. Alain Pinel Realtors,
Inc. (2019) 32 Cal.App.5th 972, 978–979.) Also, this court applied the standard in a
judicial foreclosure proceeding where the trial court ruled on a petition that was brought
under the procedures set forth in section 729.070 and requested a determination of the
property’s redemption price. (Wells Fargo Bank, N.A. v. 6354 Figarden General
Partnership (2015) 238 Cal.App.4th 370, 390–391 [“evidence did not compel the trial
court to find Wells Fargo realized value from its possession of the vacant land”].) Thus,
we conclude the finding-compelled-as-a-matter of law standard also applies in the
context of a motion to vacate a judgment when a trial court determines the moving party
did not carry its burden of proof with respect to disputed issues of fact.
B. Split in Authority
As described below, the question of whether a plaintiff in one PAGA action has
standing to bring a motion to vacate a judgment entered in another PAGA action has
created a split of authority. The California Supreme Court has granted review to consider
this and related issues.
On September 30, 2021, the day after Delgado filed his appellant’s reply brief, the
Second District filed an opinion affirming a trial court’s approval of a settlement in a
PAGA action and the trial court’s subsequent denial of motions by nonparty employees
to intervene and to vacate the judgment. (Turrieta v. Lyft, Inc. (2021) 69 Cal.App.5th

11.
955, 961–962 (Turrieta), review granted Jan. 5, 2022, S271721.) The nonparty
employees argued the settlement was unreasonably low and the plaintiff and Lyft
conducted a reverse-auction of the State’s claims for civil penalties. (Id. at p. 967.) The
Second District concluded the nonparty employees, who were plaintiffs in other PAGA
lawsuits against the defendant, lacked standing to bring a motion to set aside the
judgment pursuant to section 663. (Turrieta, supra, at p. 970.) The Second District
stated, among other things, that it was “not persuaded that appellants’ role as PAGA
plaintiffs confers upon them a personal interest in the settlement of another PAGA
claim.” (Id. at p. 971.) The rationale for this conclusion is set forth in Turrieta and need
not be repeated here. (Id. at pp. 971–974.)
Two months later, the First District reached the opposite conclusion, stating that a
PAGA representative in one action had standing (1) to move to vacate a judgment
following a settlement of another action with overlapping PAGA claims and (2) to appeal
that judgment. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 72–73 (Moniz).)
A petition for review was not filed in Moniz.
Approximately five weeks after Moniz was filed, our Supreme Court granted
review in Turrieta to resolve the conflict and determine whether a PAGA representative
has the right to intervene, object to, or move to vacate, a judgment in a related action that
purports to settle the claims that the PAGA representative had raised. (See Turrieta,
supra, 69 Cal.App.5th 955, review granted.) In June 2022, the Supreme Court briefing in
Turrieta was completed. Oral argument has yet to be scheduled by the Supreme Court.
The decisions in Turrieta and Moniz can be read as establishing conflicting bright
line rules of law that determine whether a PAGA plaintiff has standing to file a motion to
vacate a judgment entered in another PAGA action where the judgment reflects a
settlement of overlapping claims for civil penalties. In particular, Turrieta can be read as
concluding such a PAGA plaintiff never has standing to pursue a motion to vacate. At

12.
the other end of the spectrum, Moniz can be read as concluding such a PAGA plaintiff
always has standing to pursue such a motion. We adopt a middle ground.
The general test for standing applied to any party pursuing a motion to vacate a
judgment pursuant to section 663 is whether that party had rights or interests injuriously
affected by the judgment and whether those interests are immediate, pecuniary, and
substantial (i.e., not nominal or remote). (Carleson, supra, 5 Cal.3d at p. 737.) We
conclude this test—at least in the context of this particular PAGA action—required the
trial court to weigh the facts and circumstances presented and act as the trier of fact in
resolving factual issues. We note that one way to resolve a factual issue is to determine
the party with the burden of proving that fact failed to carry its burden. (See pt. I.A.3.,
ante.)
C. Analysis of Delgado’s Claim of Error
1. Delgado’s Contentions
Delgado contends the trial court erred in finding he lacked standing to bring the
motions to vacate the judgment. He argues Plaintiffs and Chipotle have erroneously
focused on the fact that PAGA does not give aggrieved employees any property or other
substantive rights to recover the civil penalties authorized by PAGA. In Delgado’s view,
as a deputized PAGA representative, he has as much right as plaintiffs to pursue
enforcement on behalf of the State and, thus, there can be no doubt that his role was
immediately affected in a pecuniary and substantial way once the trial court approved the
settlement, which extinguished his PAGA action. Delgado appears to have adopted the
view expressed in Moniz and, as a result, he has done little to provide a detailed factual
analysis of his pecuniary interest in the PAGA claim.
2. Identifying Delgado’s Immediate Pecuniary Interest
Here, we consider whether the trial court erred in determining Delgado did not
have a substantial pecuniary interest that was affected by the judgment. In analyzing

13.
Delgado’s pecuniary interest, we note that approximately $3.15 million of the $4.9
million settlement was apportioned to civil penalties and the remainder went to attorney
fees, costs and certain expenses. Delgado, as one of approximately 45,083 employees,
received $30.91 of those civil penalties. Thus, Delgado’s share of the civil penalties
equates to one dollar of every $101,948.45 of civil penalties paid by Chipotle.
Delgado refers to two methods Plaintiffs used to estimate the maximum PAGA
civil penalties that accrued against Chipotle during the relevant period. Based on 11
categories of Labor Code violations, Plaintiffs’ methods estimated the maximum
penalties at $79,210,000 or $115,696,480. The first method assumed heightened
penalties would not be imposed. The second method assumed the lower penalty would
be applied to the initial pay period in which a violation occurred and heightened penalties
would be assessed for subsequent violations.6
Although Delgado referred to Plaintiffs’ estimates, he does not accept their
accuracy. Instead, he offers calculations showing a potential for $450 million in
penalties, even if heightened penalties are not collected. Based on Delgado’s assertion
that there are 418 Chipotle restaurants in California, the $450 million in civil penalties
equates to over $1 million per store.

6 An example of a heightened penalty is provided by Labor Code section 2699,
subdivision (f)(2), which states: “If, at the time of the alleged violation, the person
employs one or more employees, the civil penalty is one hundred dollars ($100) for each
aggrieved employee per pay period for the initial violation and two hundred dollars
($200) for each aggrieved employee per pay period for each subsequent violation.” The
$200 assessment is the “heightened” penalty for subsequent violations.
A principle affecting the probability of recovering heightened penalties states that
“a ‘subsequent violation’ level applies only to violations after the employer is on notice
that its continued conduct is unlawful.” (Steenhuyse v. UBS Financial Services, Inc.
(N.D.Cal. 2018) 317 F.Supp.3d 1062, 1067–1068, citing Aramal v. Cintas Corp. No. 2
(2008) 163 Cal.App.4th 1157, 1209, and Patel v. Nike Retail Services, Inc. (N.D.Cal.
2014) 58 F.Supp.3d 1032, 1042.)

14.
 We identify Delgado’s pecuniary interest in the foregoing three estimates of the
civil penalties for which Chipotle might be liable by using the ratio under which Delgado
receives one dollar out of every $101,948.45 in civil penalties paid by Chipotle.
Assuming no reduction for attorney fees, costs or expenses, Delgado would receive the
following amounts: (1) $4,413.99 out of $450,000,000 in civil penalties; (2) $1,134.85
out of $115,696,480 in civil penalties; and (3) $776.96 out of $79,210,000 in civil
penalties.
Next, we consider the likelihood that Chipotle would be found liable for civil
penalties in these amounts. In concluding Delgado had not shown a substantial pecuniary
interest affected by the settlement and resulting judgment, the trial court impliedly found
that it was highly unlikely civil penalties of the magnitude provided by the Porras’s and
Delgado’s estimates would be imposed. The legal framework supporting this finding
includes subdivision (e)(2) of Labor Code section 2699, which provides:

“In any action by an aggrieved employee seeking recovery of a civil
penalty available under subdivision (a) or (f), a court may award a lesser
amount than the maximum civil penalty amount specified by this part if,
based on the facts and circumstances of the particular case, to do otherwise
would result in an award that is unjust, arbitrary and oppressive, or
confiscatory.” growth
An example of a trial court exercising this discretionary authority to reduce the
amount of the civil penalties imposed is Carrington v. Starbucks Corp. (2018) 30
Cal.App.5th 504. In the penalty phase of that proceeding, the plaintiff argued penalties of
$25 to $75 per violation were appropriate and requested nearly $70 million in total
penalties. (Id. at p. 517.) The trial court found approximately 30,000 violations had
occurred and imposed a penalty of only $5 per violation instead of the full penalty of $50
per violation. (Ibid.) As a result, the penalty totaled $150,000. The appellate court
affirmed the judgment, concluding the trial court acted with the discretionary authority to
award lesser penalties in accordance with Labor Code section 2699, subdivision (e)(2).

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(Carrington, supra, at p. 528.) In another case, a trial court’s decision to reduce the
PAGA penalties assessed by 30 percent was affirmed. (Thurman v. Bayshore Transit
Management, Inc. (2012) 203 Cal.App.4th 1112, 1135–1136, disapproved on another
ground in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196, fn. 8.)
In this case, the person with the best insight into how the discretionary authority to
reduce the civil penalties would be exercised is the trial judge who approved the
settlement. The judge’s discretionary authority to reduce the civil penalties makes it very
difficult for this court to conclude the trial court’s determination that Delgado had not
demonstrated he had a substantial pecuniary interest in the judgment constitutes an abuse
of discretion. For instance, even if the trial court determined $20 million was a
reasonable estimate of the civil penalties that would be imposed, Delgado’s proportionate
interest would have been less than $200. The court reasonably could determine that
amount was not a substantial pecuniary interest.
Consequently, we conclude the trial court did not err when it determined Delgado
has failed to demonstrate that the judgment had an immediate, pecuniary, and substantial
adverse effect on his interests or rights. (See Center for Biological Diversity v. County of
San Bernardino, supra, 185 Cal.App.4th at p. 881; § 663.)7
D. Section 473, Subdivision (d)
Delgado also brought a motion to vacate under section 473, subdivision (d). That
provision authorizes the trial court to “set aside any void judgment or order.” (§ 473,
subd. (d).) Trial courts have the discretion to grant or deny a request to set aside a void
order, but have no power under section 473, subdivision (d) to set aside an order that is
not void. (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020

7 Accordingly, we need not address the impact of the United States Supreme
Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) __ U.S.__ [142 S.Ct.
1906, 213 L.Ed.2d 179], on Delgado’s ability to pursue civil penalties under PAGA for
violations that occurred to employees other than himself.

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(Pittman).) Appellate courts conduct a de novo review of a trial court’s determination of
whether a judgment is void. (Ibid.)
When determining if an order is void for purposes of section 473, subdivision (d),
courts distinguish between judgments that are void on the face of the record and
judgments that appear valid on the face of the record but are shown to be invalid through
consideration of extrinsic evidence. (Pittman, supra, 20 Cal.App.4th at p. 1020.) A
judgment is void on its face if the invalidity is apparent from an inspection of the
judgment roll or court record without consideration of extrinsic evidence. (Id. at p.
1021.) “If the invalidity can be shown only through consideration of extrinsic evidence,
such as declarations or testimony, the [judgment] is not void on its face.” (Ibid.) The
requirement that a judgment be void on its face is significant because it affects the
procedural mechanism available to attack the judgment, when the judgment may be
attacked, and how the party challenging the judgment proves that the judgment is void.
(Id. at p. 1020.)
First, we conclude Delgado does not have standing to bring a motion to vacate
under section 473, subdivision (d) for the same reasons he does not have standing to
bring a motion to vacate the judgment under section 663. Second, Delgado has not
shown the judgment is void on its face. Third, Delgado has not demonstrated the trial
court lacked subject matter jurisdiction or the rule of exclusive concurrent jurisdiction
applied. (See People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20
Cal.App.4th 760, 769–770.) Therefore, the trial court did not err in denying the motion
to vacate brought under section 473, subdivision (d).
II. THE APPLICATION TO INTERVENE IS MOOT
An appeal is moot when any decision by the appellate court can have no practical
impact or provide the parties effectual relief. (Woodward Park Homeowners Assn. v.
Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.) Here, Delgado’s appeal from the order

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denying his application to intervene has been rendered moot by our decision to uphold
the judgment implementing the settlement agreement. “Where 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.) Here, dismissal is not the
appropriate disposition because this appeal also included Delgado’s challenge of the
order denying his motions to vacate the judgment, which challenge has been resolved on
the merits in part I. of this opinion.
Because we have held Delgado’s appeal from the denial of his application to
intervene is moot, we need not address the other issues relating to that application, which
include standing and his timeliness in bringing that application.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
Respondent Porras’s motion to dismiss the appeal, filed November 3, 2020, is denied
because this opinion renders the motion moot.

FRANSON, J.
WE CONCUR:

POOCHIGIAN, ACTING P. J.

SMITH, J.

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