Opinion
A166276
04-25-2024
JEFFREY WON LONG YOUNG et al., Plaintiffs and Respondents, v. CEP AMERICA, LLC et al., Defendants and Appellants.
NOT TO BE PUBLISHED
(San Francisco County Super. Ct. No. CGC16554619)
MILLER, J.
Three physician assistants sued their employer and others for employment-related statutory violations, and alleged PAGA claims under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.). Shortly after the lawsuit was filed, plaintiffs' claims were compelled to arbitration-except for their PAGA claims, which were not subject to arbitration under then-applicable law, and which were stayed at the defendants' request pending arbitration of the other claims. After years of litigation and mediation, the parties settled all plaintiffs' claims, including the PAGA claims, and in 2020 they presented a proposed settlement of the PAGA claims to the trial court for approval, as required by statute. (Lab. Code, § 2699, subd. (l)(2).)
In response to the trial court's questions and concerns, the parties amended their settlement agreement twice, and then amended their agreement again in response to the court's denial of approval without prejudice in March 2021. In September 2021, the parties filed a renewed joint motion to approve the settlement. Again the court had questions and concerns, and again the parties made changes. In January 2022, the trial court denied the renewed joint motion without prejudice; still, the parties continued to seek approval from the court. But in June 2022, after the United States Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking River), the defendants did an about-face and sought to withdraw their support for approval of the settlement, despite the fact that the agreement they had signed was by its terms "binding," and moved to compel arbitration of the PAGA claims.
The trial court approved the settlement and denied the motion to compel arbitration as moot. Defendants argue on appeal that as a matter of law the trial court was required to grant their motion to compel arbitration of the PAGA claims. Defendants fail to show error by the trial court, and we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiffs' Complaint
Jeffrey Won Long Young, Teresa San Mateo, and Carlos Edward Jaramillo (collectively, plaintiffs) were employed as physician assistants by CEP America-California, a general partnership that contracts with hospitals to provide emergency department services. They filed their original complaint in this action in September 2016, alleging class-wide wage and hour claims. In January 2017 they filed the operative complaint against CEP America-California and related individuals and entities (collectively, CEP), alleging eight causes of action on behalf of themselves and a class of similarly situated employees based on violations of the Labor Code, California Industrial Welfare Commission wage order 5-2001, and the Business and Professions Code, including failure to pay overtime and other wages, failure to provide meal and rest periods, and failure to provide itemized wage statements. Plaintiffs also alleged two causes of action seeking penalties under PAGA on behalf of themselves, other aggrieved employees, and the state.
B. CEP's Petition to Compel Arbitration
Shortly after the operative complaint was filed, CEP filed two motions: a motion to compel the arbitration of the non-PAGA claims based on arbitration clauses in the plaintiffs' employment contracts, which CEP argued were governed by the Federal Arbitration Act (FAA, 9 U.S.C. § 1 et seq.) because CEP was engaged in interstate commerce, and were enforceable under federal and state law, and a motion to stay the PAGA causes of action pending arbitration. The motions were based on then-applicable case law holding that PAGA claims were not subject to the FAA and therefore were not subject to arbitration, even under an otherwise valid and enforceable arbitration agreement. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386-387 (Iskanian) [PAGA claims lie outside the FAA because they are disputes between an employer and the state, rather than disputes "between an employer and an employee arising out of their contractual relationship"].)
The trial court (Hon. Mary E. Wiss) granted both motions, and ruled that whether class arbitration was available in the case was an issue to be determined by the arbitrator. After the arbitrator determined that the arbitration agreements did not permit the plaintiffs to pursue their claims on behalf of a class, each plaintiff filed a separate arbitration demand to pursue their individual claims.
C. Mediation and First Motion to Approve Settlement
While the arbitration proceedings were pending, the parties engaged in mediation and reached a global settlement, with each plaintiff executing an individual settlement agreement that was contingent on trial court approval of the parties' PAGA settlement agreement.
In May 2020, plaintiffs filed an unopposed motion to approve the PAGA settlement agreement. The trial court (Hon. Andrew Y.S. Cheng) twice continued the hearing on the motion for supplemental briefing. In response to each continuance, the parties submitted an amended PAGA settlement agreement along with supporting briefs and declarations.
In March 2021, the trial court denied the motion without prejudice, and encouraged the parties to continue negotiating with the goal of presenting a further revised agreement to the court. In a joint case management conference statement submitted to the court in May 2021, the parties reported they were engaging in further discussions with the mediator.
D. The Parties' Renewed Motion to Approve Settlement
In September 2021 the parties filed a joint brief supporting a renewed and unopposed motion to approve an amended PAGA settlement agreement, which had been executed that same month. Like the previous agreements that had been submitted to the court, this one included a paragraph headed "Mutual Full Cooperation" that provided, "The Parties will fully cooperate with each other to accomplish the terms of this Agreement including, but not limited to, executing such documents and taking such other action as reasonably may be necessary to implement the terms of this Agreement. The Parties to this Agreement shall use their best efforts, including all the efforts contemplated by this Agreement and any other efforts that may become necessary by order of the Court or otherwise, to effectuate this Agreement and the terms set forth herein."
After the court continued the renewed motion for supplemental briefing, the parties prepared and executed a "Modification to PAGA Settlement and Release Agreement," which addressed issues connected to the administration of the proposed settlement. The modification was submitted to the court in November 2021 with a supporting brief and declaration.
In January 2022, the court denied the renewed motion without prejudice, and once again encouraged the parties to continue negotiations.
E. Further Requests to Approve Settlement
In a "Joint Case Management Conference Statement re PAGA" filed in March 2022, the parties stated that their continued negotiations had not led to any further revisions to the settlement agreement, and they reasserted their statements from an earlier court filing in support of the settlement.
CEP's position, stated first in May 2021 and repeated in March 2022, was as follows: "After extensive, arms-length negotiations, Defendants agreed to settle all of the claims in this lawsuit and all arbitration claims. Defendants, understandably, wanted to settle all pending claims as opposed to only a partial settlement and continued litigation of remaining claims. A total settlement sum was reached in good faith, subject to court approval. [¶] '[I]t is the policy of the law to discourage litigation and to favor compromises of doubtful rights and controversies, made either in or out of court.' (Hamilton v. Oakland School Dist. (1933) 219 Cal. 322, 329.) Consistent with that long-established public policy, Defendants agree the settlement should be approved." (Punctuation corrected.).
In May 2022, the plaintiffs filed a "Case Management Statement and Request for Reconsideration of the Court's Denial of the Approval of PAGA Settlement." The request for reconsideration, which was unopposed, was made "in light of the United States Supreme Court's impending decision in Viking River," which could "negatively affect[ ] Plaintiffs' PAGA claims."The case management statement also called the court's attention to Moniz v. Adecco (2021) 72 Cal.App.5th 56 (Moniz), a recent opinion that set forth the standard for trial court review of a PAGA settlement.
Viking River had been argued before the Supreme Court on March 30, 2022. (596 U.S. 639.) The petition for writ of certiorari had been granted on December 15, 2021. (142 S.Ct. 734.).
F. CEP's Change in Position on the Settlement After Viking River
On the morning of June 15, 2022, the United States Supreme Court issued its decision in Viking River, which changed in some respects the law governing the arbitration of PAGA claims. Previously, under Iskanian and its progeny, PAGA claims were generally not subject to arbitration, but, as the California Supreme Court explained in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 (Adolph), "Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA." (Id. at p. 1119.)
Later that day, CEP filed a "Statement in Opposition to Pending Motion to Approve Proposed PAGA Settlement," stating that under Viking River "the PAGA claims of the three individual plaintiffs . . . are subject to arbitration," and that "all proceedings regarding the PAGA claims of those three individuals, including any determination of the adequacy of a PAGA settlement, should be determined in an arbitral forum." CEP requested that the court "deny the present motion for approval of the PAGA settlement," and stated that it anticipated filing a motion to compel arbitration of the PAGA claims. Despite its repeated urging, as recently as the previous month, that the court should approve the parties' settlement, CEP had now changed its view.
In July 2022, CEP filed a motion to lift the stay and compel arbitration of the plaintiffs' PAGA claims. CEP argued that under Viking River the plaintiffs' individual PAGA claims were arbitrable, and the arbitrator should determine whether the non-individual, or representative, PAGA claims were arbitrable.
Plaintiffs opposed the motion, arguing that the trial court had inherent authority to reconsider its order denying approval of the PAGA settlement, and that the court should approve the proposed settlement, which was fair and reasonable. Plaintiffs also argued that CEP had waived any right to compel arbitration of the PAGA claims by agreeing to the global settlement and seeking court approval of the PAGA settlement agreement.
G. Approval of the Settlement
After CEP's motion was fully briefed, the trial court issued an order granting the parties' renewed motion to approve the PAGA settlement, and a subsequent order denying as moot CEP's motion to lift the stay and compel arbitration of the PAGA claims. In its written order granting the renewed motion, the trial court recounted that the renewed, unopposed motion had been filed in September 2021 and denied without prejudice in January 2022, and that in May 2022 plaintiffs had filed a case management statement and request for reconsideration that CEP did not oppose. The trial court stated, "Having considered its prior rulings, the Court determines that this settlement is in the best interest of the parties and thus approves it. The Court is mindful of the age of the case and the uncertain litigation landscape in light of recent and future decisions."
The trial court entered judgment in accordance with its order approving the settlement, and this appeal followed.
DISCUSSION
On appeal, CEP argues that the trial court was "powerless" to approve the PAGA settlement, which had been "terminated" by the operation of previous trial court rulings, and that the trial court was required as a matter of law to grant its motion to compel arbitration of the PAGA claims.
A. Status of the Proposed Settlement
CEP contends that the trial court lacked authority to approve the parties' PAGA settlement in August 2022 because there was no effective settlement in existence. According to CEP, the settlement had "terminated" in January 2022. CEP argues that a provision in the agreement the parties presented to the trial court in September 2021 "provides that the trial court's second denial of the settlement would render the agreement ineffective" (an interpretation that plaintiffs dispute); that the trial court first denied approval of the settlement in March 2021; and that the court's January 2022 denial of the renewed motion to approve the settlement was a second denial, with the result that the settlement agreement was ineffective as of January 2022. Therefore, according to CEP's argument, the trial court was "powerless" to approve the agreement in August 2022.
This argument has been forfeited by CEP's failure to raise it in the trial court. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [" 'a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court' "].) CEP had numerous opportunities after January 2022 to raise this argument in connection with the parties' briefing on approval of the proposed PAGA settlement, but did not do so. To the contrary, for months after January 2022 CEP took the position that the trial court not only had the authority to approve the settlement, but that it should do so. Thus, in the parties' March 2022 joint case management conference statement, CEP did not argue that the settlement was "ineffective" and could not be approved. Instead, CEP maintained its position that the proposed settlement, which lacked only court approval, should be approved. Nor did CEP argue that the settlement was ineffective in May 2022, when plaintiffs submitted their request for reconsideration of the court's denial of the proposed settlement: the request for reconsideration was unopposed. And we find it particularly significant that CEP did not even raise this argument in its post-Viking River "Statement in Opposition to Pending Motion to Approve Proposed PAGA Settlement," filed in June 2022.
Nor did CEP raise this argument in its July 2022 motion to compel arbitration of the PAGA claims. When CEP eventually mentioned the issue in the trial court, which was not until its August 2022 reply brief on its motion to compel arbitration, CEP did not argue the point. CEP stated merely that based on language in the proposed settlement agreement "it would certainly be reasonable to conclude that . . . the settlement agreement no longer has any 'force or effect.'" And CEP explicitly disclaimed any intent for the trial court to address the argument, stating that CEP did not seek "a determination of whether th[e] settlement agreement had been or should be abrogated," and adding, "Defendants do not request a ruling on this issue at this time." (Emphasis in original.)
We decline to address a claim of trial court error that concerns an issue that CEP explicitly asked the trial court not to rule on. CEP has not preserved this issue for appeal, and we do not consider it further. (See Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 770 [issue first raised "in a cursory manner" in trial court reply papers not preserved for appeal].)
B. Denial of Motion to Compel Arbitration
CEP's argument that the trial court was required to grant its motion to compel arbitration of the PAGA claims consists of two parts. First, CEP contends that as a procedural matter, the trial court was required to address the merits of its motion to compel arbitration "as a threshold issue," before addressing the proposed PAGA settlement, and therefore the trial court could not properly dismiss the motion as moot. Second, CEP contends that in addressing the merits of the motion to compel arbitration, the trial court was required to grant the motion and send the plaintiffs' PAGA claims to arbitration. Because we conclude that CEP's first argument fails, we do not reach the second.
1. A Preliminary Issue
CEP's argument that the trial court erred in approving the PAGA settlement before addressing the petition to compel arbitration rests in part on CEP's assertions that at the time CEP moved to compel arbitration "there was no other pending motion before the court" and that in approving the settlement the trial court "granted a motion that was not pending before it." This position is contrary to the position CEP took below. The day Viking River was decided, CEP filed a statement opposing the "pending motion to approve" the parties' proposed settlement of the PAGA claims. (Italics added.) (See P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1344 ["' [a]s a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal' "].) In any event, trial courts have inherent authority "to reconsider, vacate, or otherwise modify their interim orders," which is what that the trial court apparently did here. (Paul Blanco's Good Car Co. Auto Group v. Superior Court (2020) 56 Cal.App.5th 86, 97; see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 ["[i]f a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief"].)
CEP argues in a footnote that the trial court denied CEP due process when it reconsidered its denial without filing its own motion, soliciting briefing, or holding a hearing. We decline to consider this issue. (See Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 ["[f]ootnotes are not the appropriate vehicle for stating contentions on appeal"].).
2. Applicable Law and Standard of Review
CEP argues that Code of Civil Procedure section 1281.2 (section 1281.2) required the trial court to grant its petition to compel arbitration of plaintiffs' PAGA claims before it took any action on the parties' proposed settlement of those very same claims. To the extent CEP's argument requires us to interpret section 1281.2 and apply it to undisputed facts, we are presented with a legal question we review de novo. (Alaama v. Presbyterian Intercommunity Hospital, Inc. (2019) 40 Cal.App.5th 55, 65.)
Plaintiffs argue that CEP cannot rely on section 1281.2 in this appeal because CEP did not invoke section 1281.2 or any other provision of the California Arbitration Act (Code Civ. Proc., § 1280 et seq., CAA) in its motion to compel arbitration of the PAGA claims, instead relying solely on the FAA. But even though CEP's July 2022 motion to compel arbitration did not refer to section 1281.2 or the CAA, the motion explicitly relied on CEP's 2017 motion to compel arbitration of the non-PAGA claims, which was made pursuant to section 1281.2 as well as the FAA. Furthermore, because the arbitration agreements here do not expressly incorporate the FAA's procedural provisions, they are subject to the procedures set forth in the CAA. (See, e.g., Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 786.).
3. Analysis
The CAA reflects the Legislature's policy in favor of enforcing arbitration agreements. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125.) Section 1281.2 provides that a trial court "shall" grant a petition to compel arbitration "if it determines that an agreement to arbitrate the controversy exists," unless the court determines that a specified exception applies. CEP argues that by virtue of the mandatory statutory language, section 1281.2 required the trial court to resolve its petition to compel arbitration "before taking other actions." But nothing in section 1281.2 prevents the trial court from issuing orders, including orders reflecting reconsideration of its prior orders, while a petition to compel arbitration is pending. Nor does the requirement that a petition to compel arbitration "shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions" prevent the trial court from taking other action while a petition to compel arbitration is pending. (Code Civ. Proc, § 1290.2.) CEP does not cite any authority holding otherwise.
In arguing that the trial court erred by not treating arbitration as a threshold issue CEP relies on Najarro v. Superior Court (2021) 70 Cal.App.5th 871. The primary issue in Najarro was whether either of two arbitration agreements contained a valid delegation clause. (Id. at p. 878.) The Court of Appeal concluded that one agreement did not, and addressed claims of unconscionability as to that agreement. The second agreement did contain a valid delegation clause, but the Court of Appeal found that fraud in the execution negated mutual assent as to some of the parties to the agreement. (Id. at p. 879.) That case has no bearing on this one.
Although CEP argues that the procedures set forth in the CAA apply in this case, CEP argues that because section 1281.2 is "analogous" to section 4 of the FAA (9 U.S.C. § 4), we should look to federal case law interpreting that provision of the FAA in interpreting section 1281.2. CEP argues that federal cases hold that under the FAA as a procedural matter, a motion to compel arbitration must be decided before the resolution of any other motion, and thus under the CAA the trial court was required to rule on the "threshold issue" of arbitrability of the PAGA claims before taking any other action. (See, e.g., Southard v. Newcomb Oil Co., LLC (6th Cir. 2019) 2019 WL 8111958.) We do not find this argument persuasive, because CEP does not discuss in any depth the similarities and differences between the federal and state statutes, nor does it discuss the cases on which it relies for its argument. In particular, CEP does not explain how the holdings of those cases might apply in what CEP admitted was the "unusual" circumstance of a party moving to compel arbitration so many years after a complaint was filed, nor in the surely more unusual circumstance where the claims that are the subject of a party's petition to compel arbitration are also the subject of a binding settlement agreement for which the party had been seeking trial court approval, and which the party had characterized in the trial court as being the subject of a "pending motion" for approval. The "threshold" in this case with respect to the PAGA claims was crossed long before CEP filed its motion to compel arbitration of those claims.
CEP also argues the trial court's actions here were invalid because any rule allowing the trial court to take action that moots a petition to compel arbitration would be preempted by section 2 of the FAA. (9 U.S.C. § 2.) We are not persuaded. This is not a case that involves a state rule discriminating against arbitration (Viking River, supra, 596 U.S. at p. 650) or a rule that undermines the right to enforce arbitration agreements. (Id. at pp. 650-651.) This is not a case where "generally applicable principles of state law [are] used to transform 'traditional[l] individualized . . . arbitration' into the 'litigation it was meant to displace' through the imposition of procedures at odds with arbitration's informal nature." (Id. at p. 651.) Nor is this a case that involves "judicial hostility to arbitration" (id. at p. 649), though CEP claims otherwise. And we do not agree with CEP's view that the trial court "went out of its way not to decide" the issue of arbitration.
The trial court had long since ordered plaintiffs' non-PAGA claims to arbitration. CEP contends that the Viking River decision removed the obstacle to arbitration of plaintiffs' PAGA claims in this case, and suggests that the trial court's post-Viking River approval of a settlement agreement that had not changed since the trial court denied approval without prejudice in January 2022, shows that the court acted "specifically to frustrate" CEP's right to arbitrate the PAGA claims. But Viking River was not the only development that postdated the trial court's January 2022 denial without prejudice. In addition, the court had been informed that the parties had continued negotiations, but with no effect on the terms of the proposed settlement. And the court had been informed by plaintiffs of the Moniz decision, which addressed the standard for court approval of PAGA settlements.
In its briefs, CEP focuses on its attempt to enforce the parties' contractual agreement to arbitrate disputes. But the parties' arbitration agreement was not the only agreement before the trial court. The court had been presented with a fully-executed settlement agreement between the parties that by its terms was "binding upon and effective as to all Parties," subject only to court approval, and that the parties had repeatedly asked the court to approve over the course of more than two years.
CEP offers no reason for us to doubt the trial court's August 2022 statement that it approved the settlement because, having considered its prior rulings, and in view of "the age of the case and the uncertain litigation landscape in light of recent and future decisions," it determined the settlement was in the parties' best interest. Plaintiffs' case had originally been filed almost six years earlier, and the parties began mediation of the dispute about three years after that. The uncertainty of the litigation landscape was reflected in the settlement agreement itself, which stated that CEP denied not only plaintiffs' claims and allegations, but also denied that plaintiffs could proceed with their PAGA claims on a representative basis; in CEP's motion to compel arbitration of the PAGA claims, which set forth CEP's "view" that the arbitrator should determine whether plaintiffs' representative PAGA claims were arbitrable; and in the issues left unresolved in the wake of Viking River, including whether a plaintiff whose individual PAGA claim is compelled to arbitration retains standing to litigate representative claims. (Adolph, supra, 14 Cal.5th at p. 1119.)
In these circumstances, and in view of the "strong legislative and judicial policies favoring mediation and settlement" (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 86), policies which CEP recognized in its case management conference statements to the trial court, we conclude that the trial court did not err in approving the PAGA settlement proposed by the parties in this case, even though the effect of that approval was to render moot CEP's petition to compel arbitration.
C. Plaintiffs' Request for Attorney Fees on Appeal
Plaintiffs argue in their appellate brief that they are entitled to their attorney fees on appeal under PAGA, under paragraph 69 of the parties' settlement agreement that was approved by the court, and as a sanction for a frivolous appeal.
PAGA provides that a plaintiff who prevails in any PAGA action "shall be entitled to an award of reasonable attorney's fees and costs." (Lab. Code, § 2699, subd. (g)(1).) And as a general rule, "statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals." (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) In this case, however, the plaintiffs have not prevailed on their PAGA claims: they have settled them. The settlement agreement provides that "[t]here has been no final determination by any tribunal as to the merits" of the plaintiffs' claims. Accordingly, we deny plaintiffs' request for fees under PAGA.
Paragraph 69 of the parties' settlement agreement provides that, "in the event that a Party to the Agreement institutes any legal action or other proceeding against the other Party to enforce the provisions of this Agreement or to declare rights and/or obligations under this agreement, the prevailing Party shall be entitled to recover from the other Party its or their reasonable attorneys' fees and costs incurred in connection with any such action or proceeding." Without any analysis or citation to authority, plaintiffs quote a portion of paragraph 69 and assert that they are "therefore entitled to fees and costs under the agreement." In opposition, CEP asserts without analysis that the appeal is not covered by paragraph 69, because the provision "could apply only to a future lawsuit about the settlement agreement." CEP claims that "[b]ecause the settlement agreement did not exist prior to this lawsuit, respondents obviously did not 'institute[ ]' (i.e., file) this lawsuit to enforce the agreement or declare rights under it." Without more, we decline to determine whether plaintiffs are entitled to attorney fees, or in what amount. The trial court has retained jurisdiction over plaintiffs and CEP to enforce the terms of the settlement agreement, and we leave it to plaintiffs to seek a determination from the trial court in the first instance as to their entitlement to appellate attorney fees under the settlement agreement. (See 9 Witkin, Cal. Procedure (6th ed. 2021) § 1010, pp. 997-998 [appellate court may determine entitlement and amount of attorney fees; determine entitlement, but remand to trial court to set amount; direct trial court to make both determinations; or direct trial court to not award attorney fees on appeal].)
CEP cites Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744 for the proposition that the "relevant 'legal action' is the entire lawsuit here." But CEP does not make clear how Mountain Air supports that proposition in this case.
Finally, we deny plaintiffs' request for sanctions because plaintiffs have not followed the proper procedures for seeking an award of attorney fees as a sanction. (See Cal. Rules of Court, rule 8.276(a), (b) [request for monetary sanctions must be made by a motion supported by a declaration]; see also Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919 ["sanctions cannot be sought in the respondent's brief"].)
DISPOSITION
The judgment is affirmed. Respondents' request for their attorney fees on appeal under PAGA is denied. Respondents' request for attorney fees on appeal under the parties' settlement agreement is denied without prejudice to respondents' ability to seek a determination in the trial court as to whether they are entitled to attorney fees on appeal and, if so, in what amount. Respondents' request for their attorney fees as a sanction is denied. Respondents shall recover their costs on appeal.
WE CONCUR: Richman, Acting P. J., Mayfield, J. [*]
[*] Judge of the Mendocino Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.