Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 459278.
Jenkins, J.
Introduction
In January 2007, plaintiffs and respondents Eddie King et al., filed a disability access class action lawsuit (King litigation) against defendant and respondent City and County of San Francisco (City), alleging that plaintiffs were unable to access the City’s sidewalks because the sidewalks lacked wheelchair ramps and cutouts. In July 2007, appellants Ivana Kirola and Elizabeth Elftman (appellants) filed a separate disability access class action against the City in federal court (federal litigation) seeking broader relief than that sought in the King litigation. In February 2008, appellants sought to intervene in the King litigation to protect their interests in the federal litigation and to obtain relief for themselves and class members for the City’s failure to provide suitable access to its sidewalks and other pedestrian walkways for disabled persons. The trial court denied appellants’ motion to intervene, concluding that appellants were not entitled to intervene as of right and that permissive intervention was unwarranted because it would enlarge the issues in the case.
On appeal, appellants contend that they are entitled to intervene in the King litigation because their motion satisfied the criteria set forth in Code of Civil Procedure section 387, subdivisions (a) and (b), for permissive and mandatory intervention. Finding appellants’ contentions unpersuasive, we affirm the order denying appellants’ motion for leave to intervene.
Factual and Procedural Background
A. The Complaint
On January 4, 2007, plaintiffs filed a putative class action complaint for damages and injunctive relief, and a first amended complaint (FAC) on August 6, 2007. In the FAC, five individually named plaintiffs each alleged a separate cause of action against the City for violation of Civil Code sections 54 and 54.1. Each of the five plaintiffs alleged he or she could not walk and was wheelchair bound; that during the preceding year he or she was unable to traverse certain City sidewalks because they lacked any wheelchair ramps or cutouts; and that the City has failed to implement and enforce a policy to bring its sidewalks into compliance with Civil Code sections 54 and 54.1.
Civil Code section 54 provides in part: “Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places.” (Civ. Code § 54, subd. (a).)
Additionally, as in the original complaint, the FAC stated that plaintiffs sought to maintain the action as a class action on behalf of a class consisting of “individuals with disabilities who use wheelchairs or electric scooters for mobility who, during a time period to be determined by this Court, were unable to use any sidewalk constructed, installed, designed, owned, operated, or maintained by defendant.” The FAC alleged there were questions of law and fact common to the class, “including whether [the City] has and enforces a policy to comply with Civil Code sections 54 and 54.1 by making its sidewalks accessible to the mobility-impaired, whether [the City’s] failure to make sidewalks accessible to the mobility-impaired violates those laws, and what measures, if any, are required to bring [the City] into compliance.” The FAC’s prayer for relief requested “an order certifying this case as a class action and appointing plaintiffs and the Class representatives and their attorneys as Class counsel, statutory damages of $1,000 for each violation of Civil Code sections 54 and 54.1, prejudgment interest, permanent injunctive relief requiring [the City] to adopt and enforce a policy to make its sidewalks accessible to the mobility-impaired, attorney fees and costs, and any other relief that the Court deems just and equitable.”
B. The Motions for Leave to Intervene
On February 29, 2008, appellants filed an Ex Parte Application for leave to intervene together with a proposed class action complaint in intervention for injunctive and monetary relief for violation of the Americans with Disabilities Act of 1990 (ADA), section 504 of the Rehabilitation Act of 1973, Civil Code sections 51 and 54, and California Government Code section 11135, et seq. In their application for intervention, appellants stated that they are plaintiffs in another class action against the City currently pending in federal district court. They further stated that the other class action, Kirola et al. v. City and County of San Francisco et al., Case No. C-07 3685 SBA (federal case) was filed on July 17, 2007, and like the King litigation, alleges that the City has violated disability access laws with respect to its sidewalks and pedestrian right of ways. Appellants also stated that, unlike the King litigation, the federal case is “not limited to sidewalks, curb ramps and public walkways, ” but also includes allegations that the City has violated disability laws by denying access to public parks, swimming pools, buildings and other facilities owned, operated or maintained by the City.
Government Code section 11135 provides in part: “No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. (Gov. Code § 11135, subd. (a).)
The trial court, Judge Mahoney presiding, denied appellants’ ex parte application and directed appellants to proceed by way of a noticed motion. Appellants filed a noticed motion to intervene on March 10, 2008. A hearing on the intervention motion was held before Judge Mahoney on April 28, 2008. At the hearing, appellants’ counsel stated that when the federal case was filed he consulted with counsel for the City and was advised that the King litigation “was unlikely [to]... proceed as a class matter” and would probably settle for damages to the named plaintiffs. Appellants’ counsel further stated when he learned the King plaintiffs had refiled a motion for class certification, he applied to intervene in order to protect the interests of class plaintiffs in the federal case. Judge Mahoney took the matter under submission with a view that that case would be assigned to a single judge for all purposes and the motion transferred at that time.
On May 22, 2008, the matter was assigned to Judge Miller for all purposes. On May 23, 2008, Judge Mahoney vacated his order taking the motion to intervene under submission and directed the parties to present the issue of intervention to Judge Miller. On June 4, 2008, appellants filed a renewed motion for leave to intervene to be heard before Judge Miller. Appellants’ renewed motion for intervention before Judge Miller was based in part on “the original papers on file with the Court which were filed in support of the [original] motion on March [10], 2008.” The original papers included a memorandum of points and authorities in support of the motion to intervene, stating in part: “Finally, [proposed intervenors] can establish that their interests and interests of the class they seek to represent may not be adequately represented in this action. The plaintiffs in this action have elected to proceed under only two statutes, California Civil Code §§ 54 and 54.1. [Citation.] As indicated by the complaint in the federal action and the proposed complaint in intervention..., the alleged conduct of the City gives rise to multiple claims for violations of several statutes, including the [ADA] and section 504 of the Rehabilitation Act of 1973. Plaintiffs believe that the assertion of these claims in addition to other statutory violations have distinct advantages. The current plaintiffs in this action, however, have apparently entered into a stipulation with the defendants that the City’s curb ramp program is in compliance with the [ADA]. [Citation.] The proposed intervenors believe that this is contrary to their interests and the interests of the members of the class they seek to represent and that their participation in this action as intervening plaintiffs is essential to prevent any prejudice resulting from these types of stipulations or other positions taken by the current plaintiffs.”
The stipulation referenced in appellants’ renewed motion for intervention was filed by the City as an attachment to their motion for a protective order directing plaintiffs to withdraw their pending interrogatories and requests for admissions. The stipulation states in pertinent part: “The City’s 10 year Capital Plan has allocated $70 million to install and upgrade curb ramps throughout the City.... The City’s Curb Ramp Program satisfies the City’s disability access obligations under the [ADA].” The stipulation was apparently prepared by the City and signed by counsel for the King plaintiffs on July 16, 2007 in anticipation of a possible motion for summary judgment by the City. However, the City never filed a motion for summary judgment and the stipulation itself was never signed by counsel for the City, nor was it ever stamped as filed and received by the court.
Appellants also re-submitted a proposed class action complaint in intervention with their renewed motion to intervene. The proposed complaint alleges causes of action based on the ADA and section 504 of the Rehabilitation Act of 1973, as well as state law causes of action pursuant to Civil Code sections 54 and 54.1. In the proposed complaint, appellants averred that by seeking intervention they sought to “protect their interests and the interests of the proposed class” in their parallel federal action, and to obtain relief on behalf of themselves and the proposed class, either in this action or the federal action, for the City’s failure to provide to persons with mobility disabilities the minimum legally required access to sidewalks and pedestrian walkways owned, operated, controlled, provided and/or maintained by the City. They stated that they “do not seek to expand that limited scope of the litigation by this Complaint in Intervention.” Appellants alleged they had “suffered... loss of equal access because of the City’s repeated and continuing violations of federal and state disability nondiscrimination laws regarding access to the City’s sidewalks and pedestrian walkways for persons with mobility disabilities.”
At a hearing on appellants’ motion to intervene held on July 11, 2008, the trial court announced its tentative decision to grant permissive intervention before inviting argument of counsel. The court stated that if it adopted its tentative ruling, it was subject to the constraint that “the complaint in intervention is limited to the subject matter of the original complaint” and does not go “beyond sidewalks and curb ramps.”
Counsel for the City argued that appellants’ motion to intervene was untimely, because they had known about the King litigation since at least July 2007 when their counsel contacted the City Attorney’s office to discuss it, and that their delay in seeking intervention had prejudiced the City. Counsel further argued that the court should not grant permissive intervention because it would expand the issues in the case. Counsel argued that the federal causes of action in the proposed complaint in intervention would add new legal and factual issues even if intervention is confined to curb ramps. Plaintiffs’ counsel stated he was not opposed to intervention if it did not exceed the allegations in plaintiffs’ complaint, which plaintiffs’ counsel stated were “limited in scope to curb ramps only.” After extensive discussion concerning the scope of the proposed complaint in intervention, the court announced that all parties had agreed to continue the matter until July 22, 2008. The court also stated that no later than July 16, appellants’ counsel would circulate a proposed order containing “the language that proposed interveners believe would square the Complaint in Intervention with the subject matter of the complaint.”
On July 16, 2008, appellants’ counsel submitted a letter to the court, explaining that they were unable by means of a proposed order to conform the allegations of the proposed complaint in intervention to those in the King litigation complaint. Counsel further explained that in order to “assure the scope of the Complaint in Intervention is limited to the issue of curb ramps and cut outs, ... it is necessary to add, as well as delete, certain language from the earlier proposed Complaint in Intervention.” In the letter, counsel stated they had included a revised proposed Complaint in Intervention, together with a “redlined” version showing additions and deletions. After entertaining further argument on the intervention issue at the hearing on July 22, 2008, the court invited both sides to submit a proposed order on the matter and stated it would issue a ruling in due course.
C. The Trial Court’s Order
On August 21, 2008, the trial court issued its order denying appellants’ renewed motion to intervene. The court concluded proposed interveners failed to meet the requirements for intervention of right under the Code of Civil Procedure section 387, subdivision (b). The court stated: “Proposed interveners have not shown that this action may impair interveners’ ability to protect their interests. This action has been filed as a purported class action. Proposed interveners are not required to be members of the class, should the class reach that stage. Nor have proposed interveners shown that the current plaintiffs have inadequately represented their interests. Upon class certification, the Court will determine whether the purported class representatives and class counsel will adequately represent class members’ interests. Further, proposed interveners have not persuaded the court that the pendency of this case may impair their ability to protect their interests in their currently pending federal case [] that they filed after this litigation began.” The trial court also denied permissive intervention. The court concluded that the proposed complaint in intervention would “expand[] the legal, if not the factual, scope of the underlying King lawsuit.” In particular, the court concluded that the proposed complaint in intervention would reopen the issue of the City’s compliance with the ADA, which plaintiffs and the City had already stipulated was not at issue in the King litigation.
Notice of Entry of the court’s order was filed on August 29, 2008. Appellants filed a timely Notice of Appeal on September 24, 2008.
It is well established that an order denying a motion to intervene is appealable “because it finally and adversely determines the moving party’s right to proceed in the action.” (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547 (Hodge); City of Malibu v. California Coastal Com. (2005) 128 Cal.App.4th 897, 901, fn. 2.)
Discussion
Preliminarily, we note that established principles of appellate practice “focus on the evidence before the trial court and do not consider postjudgment events. Ordinarily, an appellate court is confined in its review to the proceedings that took place in the court below and are brought up for review in the record on appeal. (Citation.) Thus, ‘[m]atters occurring after entry of judgment are ordinarily not reviewable: The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation.’ (Citation.) As the appellate court in one early case put it:... ‘If the judgment is affirmed such affirmance is as of the date at which it was rendered. If it is reversed the case stands as if no judgment had been rendered by the inferior court. It is therefore manifest that error on the part of the inferior court cannot be predicated by reason of any matter occurring subsequent to its rendition of the judgment, and it is equally evident that it would be irrelevant for the appellate court to entertain any evidence of such subsequent matters.’ (Citation.)” (In re Francisco W. (2006) 139 Cal.App.4th 695, 706.) Pursuant to these established principles of appellate procedure, we deny both respondent’s and appellants’ requests for judicial notice and do not consider the materials submitted under those requests in the disposition of this matter.
Respondent’s first motion for judicial notice was filed on August 13, 2009, and appellants’ first motion for judicial notice was filed on December 17, 2009. Both requests were deferred pending our consideration of the appeal on its merits. Prior to oral argument on June 9, 2010, both parties filed a second request for judicial notice (appellants’ request was filed on June 2, 2010 and respondents’ request was filed on June 7, 2010), which requests were also deferred pending our consideration of the appeal on the merits. As stated above, we deny all the aforementioned requests for judicial notice.
Appellants argue that the trial court erred because it is entitled to intervene in this action under the criteria set forth in Code of Civil Procedure section 387, subdivisions (a) and (b), for permissive and mandatory intervention. We address mandatory intervention first because, if mandatory intervention is proper, it is not necessary to reach the issue of permissive intervention.
A. Mandatory Intervention
1. The Governing Statute and Standard of Review
Mandatory intervention is governed by Code of Civil Procedure section 387, subdivision (b), which provides, “If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.”
A person who timely asserts an unconditional right to intervene under Code of Civil Procedure section 387, subdivision (b) must satisfy three criteria. First, the person must pass the threshold question of whether he or she has “an interest relating to the property or transaction which is the subject of the action.” (Code Civ. Proc. § 387, subd. (b); Mylan Laboratories Inc. v. Soon-Shiong (1999) 76 Cal.App.4th 71, 78 (Mylan).) Second, if the person seeking intervention demonstrates such an interest in the action, the person must show that he or she “is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest.” (Code Civ. Proc. § 387, subd. (b); Hodge, supra, 130 Cal.App.4th at p. 554.) Third, if the person satisfies the first two criteria, the person must then demonstrate that his or her interest is not adequately represented by the existing parties. (Code Civ. Proc. § 387, subd. (b); Hodge, supra, 130 Cal.App.4th at pp. 554-555.) Application of the second and third criteria “requires a practical and equitable analysis of the underlying facts.” (Canatella v. California (9th Cir. 2005) 404 F.3d 1106, 1113.)
The parties dispute whether the appropriate standard of review for a denial of mandatory intervention is de novo or abuse of discretion. We note that several appellate courts have impliedly held that the grant or denial of a claim of an unconditional right to intervene, i.e., mandatory intervention, is reviewed de novo. ((See, e.g., Hodge, supra, 130 Cal.App.4th at pp. 548-550; Mylan, supra, 76 Cal.App.4th at pp. 78-80; California Physicians’ Service v. Superior Court (1980) 102 Cal.App.3d 91, 96-98 (California Physicians).) Here, we need not decide definitively the standard applicable to mandatory intervention because we would reach the same conclusion under either the de novo or abuse of discretion standard. (Cf. Siena Court Homeowners Assn v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1425 [declining to resolve issue of standard of review because same result obtained under either standard].)
Because Code of Civil Procedure “section 387 is in substance an exact counterpart to rule 24(a) of the Federal Rules of Civil Procedure, ... the Legislature... intended it to be interpreted consistently with federal cases interpreting rule 24(a)(2).” (Hodge, supra, 130 Cal.App.4th 540, 556.) Federal appellate courts review de novo the denial of a motion to intervene as of right (see, e.g., U.S. v. State of Wash. (1996) 86 F.3d 1499, 1503), except that the lower court’s “determination of one part of the test for intervention, timeliness, is reviewed for an abuse of discretion.” (Ibid.)
2. Analysis
In order to determine the threshold question for mandatory intervention - whether appellants have “an interest relating to the property or transaction which is the subject of the action” (Code Civ. Proc. § 387, subd. (b), italics added), we must first identify the “property or transaction which is the subject of the action.” Here, the “transaction” at the heart of the action in which appellants seek to intervene is the allegedly tortious conduct of the City - violating Civil Code sections 54 and 54.1, by failing to provide adequate curb cut-out and ramps on City sidewalks - and the resulting injury to the King plaintiffs. (See California Physicians, supra, 102 Cal.App.3d at pp. 96-97 [stating that “transaction” includes, “ ‘Something which has taken place, whereby a cause of action has arisen.’ ”)
Having identified “the transaction which is the subject of the action, ” we next consider whether appellants have demonstrated “an interest related to” that transaction. (Code Civ. Proc. § 387, subd. (b).) On this point, appellants flatly assert that it is “undisputed” that they have “an interest relating to the... transaction that is the subject of the action.” Appellants define this interest in very broad and sweeping terms as “their right under state and federal disability laws to be free of barriers to access to the programs, services and activities provided or offered by the City.” So stated, this is a far broader “interest” than the King plaintiffs seek to protect through the claims asserted in the current action under Civil Code sections 54 and 54.1. This is problematic, because to warrant intervention the “interest” sought to be protected “ ‘must be one ‘which is proper to be determined in the action in which the intervention is sought’ (citation)”].) (Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 552 (Continental Vinyl).) We have some misgivings about whether the interest that appellants claim in the subject of the King litigation is simply too broad to satisfy the requirement for mandatory intervention noted in Continental Vinyl, supra. Nevertheless, we do not reject appellants’ request for mandatory intervention on that basis. From the thrust of appellants’ argument on the issue, it is clear that the main interest appellants seek to protect through mandatory intervention is the ability to prosecute their federal case as broadly as possible and free of any ramifications from the outcome in this case. Assuming arguendo this is an interest sufficient for mandatory intervention, we next address the latter’s second requirement.
To meet the second requirement for mandatory intervention, appellants must show that they are “so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest.” (Code Civ. Proc. § 387, subd. (b); Hodge, supra, 130 Cal.App.4th at p. 554.) Appellants posit several scenarios under which the disposition in the King litigation may as a practical matter impair their related interest. We have evaluated each of the scenarios put forth by appellants but find none support intervention as a matter of right.
First, appellants assert that the King plaintiffs are seeking relief on a “limited basis” under Civil Code sections 54 and 54.1 and therefore “any injunction issued by the trial court is likely to provide less relief” than that provided under the ADA. Even if that assertion were true, we fail to see how it might impair appellants’ interest in the ADA claims pending in federal court. Should appellants prevail on their federal ADA claims, the federal court can impose a remedy sufficient to cure the ADA violation and would not be limited by any relief afforded to King under state law. Moreover, even if the King plaintiffs failed to prove their allegations under state law, that would not preclude appellants from seeking relief under state law in federal court because, as noted above (see ante, fn. 2), “[a] violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.” (Civ. Code §§ 54, subd. (c) & 54.1, subd. (d).) We are not unmindful of appellants’ concerns regarding the litigation strategy employed by counsel in their representation of the King plaintiffs in this action. However, to the extent that appellants seek mandatory intervention in order to control the strategic course of the King litigation and preserve the broadest possible basis upon which to pursue their federal claims, such concerns provide an insufficient basis to justify intervention as a matter of right. (See Perry v. Proposition 8 Official Proponents (9th Cir. 2009) 587 F.3d 947, 954 [stating that “ ‘mere[] differences in [litigation] strategy... are not enough to justify intervention as a matter of right’ ”].)
Counsel for plaintiffs explained his position on this matter at the intervention hearing on July 11, 2008, stating, “In this case, ... the reason we chose to go the route we did with the complaint is we felt that’s the quickest and most efficient way to resolve this issue on behalf of the plaintiffs. We don’t have any problem with the City’s ADA program, that’s why we didn’t allege there was a violation of the ADA. [¶] The Civil Code Sections 54 and 54.1 provide for two alternative means of proving your case: One is to a derivative violation of the ADA, and the second is through a direct violation of the portion of those laws that preexisted the ADA. And we chose to go under the original Disabled Persons Act, because it provides a much more effective and efficient way of getting the sidewalks fixed. And we have done extensive discovery. We’ve determined that although the City of San Francisco has adopted an ADA program, it did so only after the ADA was enacted obviously, but the statutes of Civil Code section 54 and 54.1 have been in effect since the 1970s. And we felt that the current ADA program is sufficient for our purposes.... That’s why we stipulated away the issue of the ADA.”
Second, appellants speculate that in a “worse case scenario” the trial court could certify the class in the King litigation and then deny the King plaintiffs injunctive relief on the merits. Such a result might arise, say appellants, if the City files a motion for summary judgment based on the King plaintiffs’ stipulation that the City’s curb ramp program complies with the ADA. If this parade of horribles comes to pass, appellants continue, “the result would presumably be binding on [them] and other putative class members and effectively deny them access to the City’s sidewalks and the right to have curb ramps installed as required by law.” (Italics added.) Again we reject appellants’ contention that on this ground they have established an impairment of interest sufficient to warrant mandatory intervention. In the first place, appellants cite no legal authority in support of this assertion. Also, a factual stipulation regarding the City’s compliance with the ADA has little relevance to the adjudication of a motion seeking summary judgment of the King plaintiffs’ state law claims - proof of which does not implicate the ADA. Nor does the mere possibility that the City could prevail on the merits in the King litigation establish sufficient impairment of appellants’ interest to justify intervention. (Cf. City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1039 fn. 8 [stating that the “potential consequences [of failure on the merits] would hardly be limited to the Fund’s contributors, but would affect all preexisting California marriages[, ]... [therefore] their interests are not sufficiently unique or direct to support intervention”].)
As noted above (see ante, footnote 1), Civil Code sections 54 and 54.1 each provides that a violation of the ADA “constitutes a violation of this section, ” but that does not mean that absent a violation of the ADA there is no violation of section 54 or 54.1. At oral argument, however, counsel for appellants focused primarily on the stipulation described above (see ante, pp. 5-6). Counsel argued that the stipulation did not merely narrow the issues in the King litigation but also prejudiced appellants’ federal claims. We are not persuaded. At the time of hearing on the motion for intervention the trial court had before it an unexecuted stipulation of no force or effect, prepared by the City in anticipation of a summary judgment motion which remained unfiled. By contrast, the potential prejudicial effects of the stipulation as described by appellants’ counsel at oral argument were based, not on the record before the trial court at the time of the hearing, but on downstream circumstances and events occurring after the hearing on the motion for intervention: For example, whether the unexecuted stipulation would ultimately be incorporated into a future settlement agreement and/or judgment resolving the King litigation and the res judicata effect of any such future judgment involve highly speculative determinations. As such, based upon the record before it, the court properly rejected appellants’ impairment of interests arguments. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 11-12 & fn. 5. [only issues that are raised, litigated and incorporated in a judgment may have preclusive effect].)
The third and final scenario posited by appellants under which the disposition in the King litigation may as a practical matter impair their related interest is that the trial court might deny class certification in the King litigation. According to appellants, denial of certification in the King litigation may adversely affect them by precluding the issue of class certification in their federal case. In this regard, appellants rely on Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223 (Alvarez) for the proposition that a decision denying certification of a class in one court might bar efforts to certify the same class, even in a separate action filed by different plaintiffs.
In Alvarez, plaintiffs were 56 Area Sales Managers (ASMs) for the May Department Stores Company (May) who filed a class action lawsuit against May for failure to pay overtime compensation. (Alvarez, supra, 143 Cal.App.4th at pp. 1227-1228.) Plaintiffs’ counsel had filed a previous class action lawsuit (Duran case) against May on behalf of another group of ASMs in which class certification was denied, inter alia, on the grounds that the interests of the putative class members were too diverse. (Id. at pp. 1228-1230.) Based on the doctrine of collateral estoppel, the trial court sustained without leave to amend May’s demurrer to the class action allegations. (Id. at p. 1228.) On appeal, plaintiffs asserted that (1) “the doctrine of collateral estoppel is inapplicable to an order denying class certification in another lawsuit brought by other plaintiffs” and (2) even if applicable, the doctrine of collateral estoppel was erroneously applied to the facts of the case. (Ibid.)
On the first question, the appellate court in Alvarez concluded that “[w]hen a prevailing party seeks to enforce a ruling denying class certification against an absent putative class member, the general principles of collateral estoppel apply.” (Alvarez, supra, 143 Cal.App.4th at p. 1236; see also Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1510 (Johnson) [following Alvarez and stating that if all the elements for collateral estoppel are present, “the doctrine is fully applicable to preclude litigation of issues finally resolved as part of a class certification determination in a prior proceeding”]; Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1202 (Bufil) [ following Alvarez and stating, “[G]eneral principles of collateral estoppel pertain when a prevailing party seeks to enforce a ruling denying class certification against an absent putative class member”].) However, the Alvarez court’s holding, on the record before it, that collateral estoppel can be asserted as a bar to subsequent requests for certification does not provide a sufficient basis to support appellants’ request to intervene here.
The “five threshold requirements” for collateral estoppel are “ ‘[f]irst, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.’ (Citations.)” (Johnson, supra, 166 Cal.App.4th at pp. 1507-1508.) The same requirements apply under federal law. (See Hydranautics v. FilmTec Corp. (2000) 204 F.3d 880, 885.)
In the first place, for collateral estoppel to apply there must be privity between the party in the earlier case and the party in the later case. (Alvarez, supra, 143 Cal.App.4th at p. 1236; Johnson, supra, 166 Cal.App.4th at p. 1508.) The appellate court in Alvarez stated that whether privity exists “ ‘requires close examination of the circumstances of each case’ (citation), ” (id. at p. 1237) including whether the “first party had the same interest as the precluded party and the motive to present the same claim.” (Alvarez, supra, 143 Cal.App.4th at p. 1238.) In Alvarez, the appellate court concluded that plaintiffs were in privity with the Duran plaintiffs in the earlier case against May because both complaints alleged “the misconduct took place during approximately the same time period” (id. at p. 1237) and the Duran plaintiffs and plaintiffs-at-bar “sought class certification using the same attorneys and there is no allegation that the representation provided to the plaintiffs in Duran was inadequate.” (Ibid.) Here, by comparison to the circumstances present in Alvarez, the King plaintiffs’ state claims pertain to a different time period than appellants federal ADA claims, the King plaintiffs have specifically disavowed any interest in presenting appellants’ ADA claims, appellants have different counsel than the King plaintiffs, and appellants have vigorously contested the adequacy of the King plaintiffs’ counsel in this case. Thus, under factors discussed in Alvarez, it does not appear that, for purposes of the collateral estoppel effect of any future order by the trial court denying class certification, the King plaintiffs stand as “virtual representatives” to appellants. (See Alvarez, supra, 143 Cal.App.4th at p. 1238.)
Furthermore, if the City chose to challenge a motion for class certification by appellants in federal court on collateral estoppel grounds, the City would have the burden of establishing all the requirements for collateral estoppel. (Johnson, supra, 166 Cal.App.4th at p. 1508 [“party asserting collateral estoppel bears the burden” of establishing these requirements].) In this regard, because collateral estoppel applies only if “the issue sought to be precluded from relitigation [is] identical to that decided in a former proceeding” (Johnson, supra, 166 Cal.App.4th at p. 1508), the City would have to show that the grounds upon which the King litigants sought and were denied class certification in state court are the same grounds for certification asserted by appellants in federal court. (See Johnson, supra, 166 Cal.App.4th at pp.1515-1517 [denial of class certification in two prior class actions (Paxil I and Paxil II) against manufacturer of Paxil drug did not collaterally estop plaintiff’s class action on behalf of California consumers because previous decisions rested on different factual and legal foundations than the issue sought to be adjudicated in the case at bar (Paxil I litigated and decided the propriety of certifying a nationwide class of Paxil users; class of Paxil users in Paxil II was different to class of Paxil users in case at bar because action under current version of Unfair Competition Law required allegation that all class members suffered an injury in fact)]; Bufil, supra, 162 Cal.App.4th at pp. 1203-1204 [collateral estoppel did not apply to bar certification of class action by employee of Dollar Financial Group alleging violations of meal and rest break laws because the present action did not involve individual class members’ understanding of meal period waiver contained in hire agreements-an issue in the prior litigation - and present class was a distinct subset of class for which certification had been denied in prior action].)
Moreover, whereas the City, under the doctrine of collateral estoppel as approved in Alvarez, could use a failure by the King litigants to win class certification to challenge a motion by appellants for class certification in federal court, that is not the only means by which the City could conceivably challenge such a motion by appellants. A party seeking class certification must establish “the existence of both an ascertainable class and a well-defined community of interest among class members.” (Johnson, supra, 166 Cal.App.4th at pp. 1508-1509.) The community of interest requirement further “embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Id. at p. 1509.) Thus, collateral estoppel aside, the City could challenge a motion by appellants for class certification in federal court on the basis that appellants have failed to carry their burden on any of these requirements. (See Bufil, supra, 162 Cal.App.4th at p. 1204 [“proponent of [class] certification has the burden of establishing [requirements]”].) All the foregoing considerations render the question of whether a failure by the King litigants to win class certification would collaterally estop appellants from litigating the same issue in federal court a matter of considerable speculation and guess work at this juncture.
In sum, appellants have failed to establish, on the record before us, that a disposition in the King litigation may as “a practical matter impair or impede” their interest in pursuing their federal case unfettered by the outcome in this case. (Hodge, supra, 130 Cal.App.4th at p. 554.) Thus, the trial court did not err by denying mandatory intervention.
B. Permissive Intervention
1. The Governing Statute and Standard of Review
Permissive or discretionary intervention is governed by Code of Civil Procedure section 387, subdivision (a), which provides in pertinent part, “Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” Under Code of Civil Procedure section 387, subdivision (a), “ ‘the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. [Citation.]’ (Citation.) The permissive intervention statute balances the interests of others who will be affected by the judgment against the interests of the original parties in pursuing their litigation unburdened by others. (Citation.)” (City and County of San Francisco v. State of California, supra, 128 Cal.App.4th at p. 1036.)
“Because the decision whether to allow intervention is best determined based on the particular facts in each case, it is generally left to the sound discretion of the trial court. (Citations.) We therefore review an order denying leave to intervene under the abuse of discretion standard. (Citation.) Under this standard of review, a reviewing court should not disturb the trial court’s exercise of discretion unless it has resulted in a miscarriage of justice. (Citation.) ‘ “[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.” [Citations.]’ (Citation.)” (City and County of San Francisco, supra, 128 Cal.App.4th at pp. 1036-1037.)
2. Analysis
Appellants’ contend the trial court abused its discretion by denying permissive intervention. We disagree.
In discussing of the factors governing permissive intervention, the trial court concluded that “proposed interveners are attempting to expand that scope of this case by adding the causes of action in their pending federal case.” The court stated that the parties to the King litigation had entered a stipulation regarding the issue of ADA compliance. The court noted that appellants’ complaint in intervention sought to “repudiate the parties’ stipulation that the ADA is not at issue and would reopen issues already resolved between the existing parties to this case.” Further, the court noted that the proposed complaint in intervention raises such new issues as whether the City’s sidewalk and street construction projects have received state and/or federal funds sufficient to invoke the federal Rehabilitation Act. Based on these and other findings, the trial court concluded that the “complaint in intervention would thus change the positions of the parties, prolong the litigation, and require the introduction of additional evidence beyond what is contemplated by the existing parties to this case.”
The trial court carefully articulated how intervention would enlarge the issues in the case. The trial court’s findings on this point are reflected in the record, in particular the allegations set forth in the proposed complaint in intervention. (See Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544 [even under abuse of discretion standard “there is still a substantial evidence component, ” under which the appellate court “defer[s] to the trial court’s factual findings so long as they are supported by substantial evidence, and determine[s] whether, under those facts, the court abused its discretion”].) On this record, we cannot say the trial court abused its broad discretion by denying appellants’ request for permissive intervention.
Indeed, appellants do not deny that adding the issue of ADA compliance would expand the issues in the case - they simply assert that “the court should not have considered the stipulation [to eliminate the issue of ADA compliance] a factor in its analysis of whether Appellants’ intervention would enlarge the issues in the case.”
Disposition
The trial court’s order denying intervention is affirmed. Appellants shall bear costs on appeal.
We concur: Pollak, Acting P.J., Siggins, J.
Civil Code section 54.1 provides in part: “Individuals with disabilities shall be entitled to full and equal access... to accommodations, advantages, facilities, ... and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” (Civ. Code § 54.1, subd. (a)(1).)
Furthermore, sections 54 and 54.1 each contain a provision stating that “[a] violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.” (§§ 54, subd. (c) & 54.1, subd. (d).) Discussing an identical provision in section 51, subdivision (f) of the Unruh Civil Rights Act, the California Supreme Court noted that the intent of the Legislature in enacting the provision was to “strengthen California law in areas where it is weaker than the Americans with Disabilities Act of 1990 (Public Law 101-336) and to retain California law when it provides more protection for individuals with disabilities than the Americans with Disabilities Act of 1990. (Citation.)” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 669-670 [holding that a plaintiff seeking statutory damages for ADA violations under the Unruh Civil Rights Act is not required to prove intentional discrimination].)