Opinion
E063953
03-10-2017
ERNESTO RUIZ, Plaintiff and Respondent, v. MOSS BROS. TOY, INC., Movant and Appellant.
Fine, Boggs & Perkins, John P. Boggs, David J. Reese, and Roman Zhuk for Movant and Appellant. R. Rex Parris Law Firm, R. Rex Parris, Kitty K. Szeto, John M. Bickford, Eric N. Wilson; Lawyers for Justice and Edwin Aiwazian for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1207201) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed. Fine, Boggs & Perkins, John P. Boggs, David J. Reese, and Roman Zhuk for Movant and Appellant. R. Rex Parris Law Firm, R. Rex Parris, Kitty K. Szeto, John M. Bickford, Eric N. Wilson; Lawyers for Justice and Edwin Aiwazian for Plaintiff and Respondent.
I. INTRODUCTION
Movant and appellant, Moss Bros. Toy, Inc. (MBT), appeals a May 15, 2015 order denying its motion to intervene in this action. (Code Civ. Proc., § 387.) We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. BACKGROUND
A. Procedural Background Through This Court's Decision in Ruiz
The earliest portions of the relevant procedural background of this appeal are described in this court's December 23, 2014 decision in Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836 (Ruiz). As explained in Ruiz, in July 2012, plaintiff and respondent, Ernesto Ruiz (Ruiz), a service technician employee of defendant and appellant, Moss Bros. Auto Group Inc. (MBA), filed a putative class complaint against MBA, claiming MBA failed to pay Ruiz and other employees overtime and other wages for all hours worked, provide required meal and rest breaks, provide accurate and complete wage statements, reimburse business expenses, and pay final wages in a timely manner. The complaint further alleged representative claims on behalf of Ruiz, other employees, and the state, pursuant to the Labor Code Private Attorneys General Act of 2004 (the PAGA). (Ruiz, supra, at p. 838.)
We have taken judicial notice of this court's opinion in Ruiz.
In August 2012, MBA petitioned for an order compelling arbitration of all of Ruiz's claims based on an arbitration clause in an arbitration agreement dated September 21, 2011, between MBA and Ruiz (the 2011 agreement). (Ruiz, supra, 232 Cal.App.4th at pp. 838, 840.) The 2011 agreement bore what appeared to be an electronic signature of Ruiz made on September 21, 2011 at 11:47 a.m. (Id. at p. 840.) Under the signature and date lines of the 2011 agreement, the phrase "'Ernesto Zamora Ruiz (Electronic Signature)'" appeared, next to "'9/21/2011 11:47:27 AM.'" (Ibid.)
Ruiz opposed the petition, claiming he did not recall signing the 2011 agreement, and if he had been presented with an agreement that limited his ability to sue MBA he would not have signed it. (Ruiz, supra, 232 Cal.App.4th at p. 840.) Ruiz indicated he may have signed an arbitration agreement when he was hired by MBA in March 2010, but he was uncertain. On March 12, 2010, his first day of work, he met with his supervisor, Mike Dawe, to process his "new-hire paperwork." He was given a "big stack of forms" and was told he had to sign them. He then met with Kimberly Pacheco who had him "electronically sign a few [additional] forms." He did not recall signing any arbitration agreement when he was hired in 2010, however, and he did not receive copies of any of the forms he was required to sign. (Ibid.)
In October 2012, the trial court denied the petition, noting that MBA "'failed to establish that an Arbitration Agreement in fact exists between [MBA] and Ruiz.'" (Ruiz, supra, 232 Cal.App.4th at pp. 840-841; Code Civ. Proc., § 1281.2.) No statement of decision was requested or issued by the trial court, and MBA appealed. (Ruiz, supra, at pp. 838, 841; Code Civ. Proc., §§ 632, 1291.) On appeal, this court issued its decision in Ruiz, affirming the order denying MBA's petition to compel arbitration based on the 2011 agreement. (Ruiz, supra, at p. 848.) Ruiz explained that, although MBA was not required to authenticate the 2011 agreement in moving to compel arbitration, once Ruiz failed to recall signing the 2011 agreement, MBA had the burden of proving by a preponderance of the evidence that the electronic signature on the 2011 agreement was authentic (Evid. Code, § 1401), that is, that the electronic signature was "the act of" Ruiz (Ruiz, supra, at pp. 843-846; Civ. Code, § 1633.9, subd. (a) [addressing authentication of electronic signatures]).
In support of its claim that Ruiz was the person who electronically signed the 2011 agreement, MBA relied on initial and reply declarations of its business manager, Mary K. Main. In her initial declaration, Main summarily asserted that the electronic signature on the 2011 agreement was the act of Ruiz, without explaining how she inferred Ruiz was the person who electronically signed the 2011 agreement. (Ruiz, supra, 232 Cal.App.4th at pp. 843-844.) In her reply declaration, submitted after Ruiz claimed he did not recall signing the 2011 agreement, Main explained that "the 2011 agreement was part of an employee acknowledgement form that 'is' presented to all [MBA] employees as part of a series of changes to the company's employee handbook, and each employee is required to log into the company's HR system, using his or her 'unique login ID and password,' to review and sign the employee acknowledgement form." (Id. at p. 844.)
Ruiz concluded that, as the trial court implicitly found, Main's declarations did not make a sufficient evidentiary showing to support a finding that the electronic signature on the 2011 agreement was the act of Ruiz. (Ruiz, supra, 232 Cal.App.4th at pp. 843-844.) Civil Code section 1633.9, subdivision (a) "addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: '(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.' (Civ. Code, § 1633.9, subd. (a), italics added.)" (Ruiz, supra, at p. 843.)
Main's declarations did explain the efficacy of the security procedures MBA had employed to determine whether an electronic signature was an act of a person. Main did not explain that the electronic signature on the 2011 agreement "could only have been placed on the 2011 agreement (i.e., on the employee acknowledgement form) by a person using Ruiz's 'unique login ID and password'; that the date and time printed next to the electronic signature indicated the date and time the electronic signature was made; that all Moss Bros. employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements; and the electronic signature on the 2011 agreement was, therefore, apparently made by Ruiz on September 21, 2011, at 11:47 a.m." (Ruiz, supra, 232 Cal.App.4th at p. 844.) This was one way, among others, MBA could have authenticated Ruiz's electronic signature. (See id at p. 843, citing Civ. Code, § 1633.9, subd. (a) ["The act of the person may be shown in any manner . . . ."].)
Ruiz further concluded that MBA could not rely on two other arbitration agreements it claimed Ruiz signed on March 4 and 12, 2010 (the 2010 agreements), because MBA did not move to compel arbitration based on either of the 2010 agreements and did not mention them until it filed its reply papers. Thus, the 2010 agreements were not properly presented to the trial court and were not before this court in Ruiz. (Ruiz, supra, 232 Cal.App.4th at pp. 841, 846.) Unlike the 2010 agreements, the 2011 agreement included putative class action and PAGA claim waivers. (Id. at p. 841.) B. Trial Court Proceedings Following Ruiz
In its reply papers, MBA claimed that on March 4, 2010, Ruiz electronically signed an arbitration agreement as part of his online employment application, and that Ruiz hand-signed another arbitration agreement on March 12, 2010, when he was hired by MBA. (Ruiz, supra, 232 Cal.App.4th at p. 841.)
1. MBA's Second Motion to Compel Arbitration
On March 11, 2015, after the remittitur in Ruiz (case No. E057529) was issued on February 24, 2015, MBA filed a second petition to compel arbitration of Ruiz's individual employment-related claims. In its second petition, MBA claimed Ruiz was employed by MBT and had never been employed by MBA. MBA explained that MBT was "a member of a dealership group, consisting of multiple, independently franchised automobile dealerships and service/parts centers, operating in Riverside and San Bernardino Counties," and that MBT had the "same dispute resolution program," namely, binding, individual arbitration, "adopted by each independently franchised automobile dealership and service/parts center in the entire group." MBA thus suggested, without expressly stating, that MBA was a dealership group and that MBT was one of several dealerships and service/parts centers comprising MBA. Each employee of the "independently franchised automobile dealership or service/parts centers within the dealership group" (including, apparently, each employee of MBT), was "required to agree to the dispute resolution provisions, which require binding, individual arbitration of disputes."
MBA claimed Ruiz signed arbitration agreements with MBT on March 4, 2010, March 12, 2010, and September 21, 2011—the same three arbitration agreements MBA claimed Ruiz had signed in connection with MBA's original petition, and attached the agreements to its second petition as exhibits A, B, and C. (Ruiz, supra, 232 Cal.App.4th 846.) In its second petition, MBA sought to compel arbitration based on all three arbitration agreements, but claimed the 2011 agreement "should control" because it was the "last-in-time" of the three agreements. The March 12, 2010 agreement (exh. B) identified "Moss Bros. Toyota-Scion" or MBT as the "Company" or employer of Ruiz. Although both the March 4, 2010 agreement (exh. A) and the 2011 agreement (exh. C) use the term "Company," neither of these agreements identified the Company or employer as either MBT or MBA.
In support of its second petition, MBA submitted a new declaration of Mary K. Main, its business manager, who asserted that Ruiz electronically signed the March 4, 2010 arbitration agreement (exh. B) when he submitted his online employment application "for employment with [MBT]," and that Ruiz "physically signed" the March 12, 2010 agreement (exh. A) "in connection with his commencement of employment with [MBT]," when the March 12, 2010 agreement was provided to Ruiz "as part of his new-hire paperwork." Main claimed Ruiz electronically signed the 2011 agreement (exh. C) on September 21, 2011, as part of "an acknowledgment of updated employee handbook policies" "presented . . . to all persons who sought to maintain employment with [MBA]." Main asserted that, "employees who continued employment through September 2011 contractually accepted the terms set forth in the updated policies, including the dealership's alternative dispute resolution policies," regardless of whether such employees signed the acknowledgement form for the updated policies.
In addition to Main's declaration, MBA also relied on a declaration from Kathryn Carlson, the "Vice President of HR Management Products for KPA," ostensibly to authenticate Ruiz's electronic signatures on the 2011 agreement and the March 4, 2010 agreement. Carlson averred that both MBT and MBA were KPA clients, and "[t]he electronic signature of an employee of [either MBT or MBA] will not appear on any document electronically stored by KPA unless the employee has first signed into the system using his or her unique username and password and then electronically signed the document while logged into the system." Though Carlson averred that KPA "administers" MBT's and MBA's "online [employment] application" and MBT's and MBA's electronically-signed "employment documents," Carlson did not state when MBA or MBT became KPA clients, or whether MBA or MBT were KPA clients on March 4, 2010, when MBA claimed Ruiz electronically signed his online employment application, or on September 21, 2011, when MBA claimed Ruiz electronically signed the 2011 agreement.
MBA asserted that, by filing his complaint against MBA in 2012, Ruiz was "erroneously assert[ing] claims against [MBA] that should have been asserted against his employer [MBT]," and Ruiz was "impliedly asserting that [MBA] operates as an agent of [MBT], and/or vice-versa." MBA thus argued it was entitled to compel arbitration of Ruiz's claims, "as an intended third-party beneficiary of the [three] arbitration agreements" between Ruiz and MBT. MBA "anticipated" MBT would "file for joinder in this action," because, as Ruiz's employer, MBT had "a direct interest in both the subject matter and arbitration of [Ruiz's] claims and therefore has the right to participate in these proceedings." In addition to an order compelling arbitration of Ruiz's individual claims, MBA sought an order "establishing that, because the arbitration agreements do not provide for class or representative actions, and in one instance [the 2011 agreement] expressly prohibit such, the arbitration shall include only [Ruiz's] individual claims and not any class or representative claims . . . ."
2. MBT's Application for Leave to Intervene
On April 8, 2015, MBT filed a noticed application to intervene in the action and to join MBA's second petition to compel arbitration. (§ 387.) On the application, MBT was represented by Fine, Boggs & Perkins LLP, the same law firm that represented MBA. Based on its employment relationship with Ruiz, MBT argued it was entitled to intervene both as a matter of right (§ 387, subd. (b)) and under permissive intervention standards (§ 387, subd. (a)).
Earlier, on March 10, 2015, MBT filed an ex parte application to intervene. Following a March 11, 2015 hearing, the parties met and conferred regarding MBT's intervention, were unable to reach an agreement, and MBT filed the noticed application to intervene.
More specifically, MBT argued it had a direct interest in the litigation because Ruiz was seeking to recover monies from his employer, MBT. MBT also claimed it had "a direct interest in the enforcement of the binding arbitration agreements . . . ." MBT asserted Ruiz "should have filed initially against [MBT], his employer, rather than against [MBA]. There is no justifying reason why [Ruiz] would not have included [MBT as a defendant] from the outset."
3. The Trial Court's Rulings
MBA's second petition to compel arbitration and MBT's application to intervene were heard on April 30, 2015, and denied on May 15, 2015. In its minute order denying MBA's second petition, the court observed that the petition was "nothing more than [an untimely] renewal motion arising from the denial of the earlier petition," there were no new or different facts, circumstances, or law that did not exist when MBA filed its original petition; and MBA had not met the statutory conditions for bringing a renewal motion or motion for reconsideration under section 1008.
In a separate minute order, the court denied MBT's application to intervene "on the ground it is untimely." In its tentative ruling, issued before the April 30, 2015, hearing, the court wrote that MBT's application was "nothing more than a thinly-veiled attempt by [MBT] to get yet another bite at the apple as to its enforcement of the 2010 and/or 2011 arbitration agreements that are at the center of this dispute." The court also noted that MBA and MBT shared the same counsel, and in its first petition MBA adduced that MBT was Ruiz's "actual employer," but MBT did not seek to intervene in the action "at that time."
On July 22, 2016, we granted Ruiz's motion to augment the record on appeal with a copy of the trial court's April 29, 2015 tentative ruling denying MBA's application to intervene.
4. Proceedings on Appeal
MBA and MBT filed a single notice of appeal from the March 15, 2015 orders (1) denying MBA's second petition to compel arbitration and (2) denying MBT's application for leave to intervene. Ruiz moved to dismiss MBA's appeal, and we granted the motion on the ground MBA's appeal was from a nonappealable order denying a motion for reconsideration. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577; § 1008, subd. (g).) We ordered that the appeal would proceed only as to the May 15, 2015 order denying MBT's application for leave to intervene.
On July 5, 2016, after the notice of appeal was filed, Ruiz moved to augment the record with trial court records filed in this action and attached to the motion as exhibits A through J. (Evid. Code, §§ 452, subd. (b), 459.) As noted in footnote 5, ante, we granted the request to augment the record with the tentative ruling denying MBT's application to intervene (exh. A). We deemed the motion to augment the record with exhibits B through J to be a request for judicial notice and reserved ruling on the request with this appeal. We deny the request because exhibits B through J were filed after the notice of appeal was filed and are not relevant to the issues on this appeal. Exhibits B through J include the court's September 14, 2015 order denying MBA's request for a statement of decision on its second motion to compel arbitration (exh. B), MBA's subsequent motion to renew its August 2012 motion to compel arbitration, or third motion to compel arbitration, based on an April 2013 arbitration agreement not presented on MBA's second motion to compel arbitration (exh. C), supporting declarations (exhs. D, E, F), Ruiz's opposition (exh. G), MBA's reply (exh. H), the order denying the motion (exh. I), and orders on other matters, issued on December 20, 2015 (exh. J).
Also on July 5, 2016, Ruiz filed a request asking this court to take judicial notice of the court records filed in another action, Moss Bros. Toy, Inc. v. Ernesto Ruiz, Riverside Superior Court case No. RIC1511040: MBT's complaint against Ruiz, filed on September 16, 2015, for breach of the 2010 arbitration agreements (exh. A), MBT's motion to consolidate case No. RIC1511040 with this case, supporting points and authorities and declaration (exhs. B & C), Ruiz's opposition (exh. D), the tentative ruling denying the motion (exh. E), the order denying the motion (exh. F), MBT's petition to compel arbitration of Ruiz's claims and points and authorities (exhs. G & H), and Ruiz's opposition (exh. I). This request is also denied. Although all of the proffered court records filed in this action and in case No. RIC1511040 after the notice of appeal was filed show that MBT and MBA have continued to vigorously pursue arbitration of Ruiz's individual employmentrelated claims, and to hold Ruiz responsible for the consequences of his refusal to submit his claims to arbitration, none of these records are relevant to the issue on this appeal: whether the court erroneously denied MBT's motion to intervene in this action.
III. DISCUSSION
"Intervention is a procedure by which a person becomes a party in a pending action or proceeding between other parties. (CCP § 387.)" (2 Civ. Proc. Before Trial (Cont.Ed.Bar 4th ed. 2016), § 31.3, p. 31-3.) Intervention is either permissive or mandatory (as of right). (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547.) Permissive intervention is governed by section 387, subdivision (a), while mandatory intervention is governed by subdivision (b) of section 387.
Intervention is mandatory "if any provision of law confers an unconditional right to intervene" upon the person seeking intervention, or if the person "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 . . . ." (§ 387, subd. (b); Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 120.)
By contrast, the trial court has discretion to grant permissive intervention upon the following conditions: "'(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.]'" (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036; § 387, subd. (a).)
As noted, MBT's intervention application was denied—not because it did not meet the substantive requirements of either mandatory or permissive intervention—but on the ground it was untimely. Both mandatory and permissive intervention must be sought "upon timely application." (§ 387, subds. (a), (b); Ziani Homeowners Assn. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 281 (Ziani); Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109.) We review the denial of intervention application on timeliness grounds for an abuse of discretion. (United States v. Washington (9th Cir. 1996) 86 F.3d 1499, 1503.)
"It is settled that any unreasonable delay in filing a petition for leave to intervene is a sufficient ground for a denial of the petition." (In re Yokohama Specie Bank, Ltd. (1948) 86 Cal.App.2d 545, 554-555, citing Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108 ["[I]t is the general rule that a right to intervene should be asserted within a reasonable time and that the intervenor must not be guilty of an unreasonable delay after knowledge of the suit."].)
On what constitutes an unreasonable delay, Northern Cal. Psychiatric Society v. City of Berkeley, supra, 178 Cal.App.3d 90, is particularly instructive. There, an order denying intervention was affirmed where the proposed intervener "had been involved in the lawsuit from the outset" and had filed an amicus brief on behalf of the defendant City of Berkeley, but sought to intervene only after a motion for summary judgment was fully briefed and the trial court had stated its intention to grant the motion and enter summary judgment against the City. (Id. at pp. 98, 109.) There was "no excuse for the tardiness" of the application and the trial court did not abuse its discretion in denying the application. (Id. at p. 109.)
Similarly here, MBT unreasonably delayed in applying to intervene and there is no excuse for its delay. MBT concedes that it, not MBA, was Ruiz's actual employer at all times relevant to Ruiz's complaint, including when Ruiz filed his complaint against MBA in August 2012 alleging Labor Code violations and other employment-related claims against MBA. MBT does not claim it was unaware of Ruiz's lawsuit from the outset, and MBT and MBA are represented by the same counsel. MBT sought to intervene on the ground that, as Ruiz's employer, it had a "direct and immediate" interest in defending Ruiz's claims and in enforcing its arbitration agreements with Ruiz.
But MBT did not explain why it did not seek to intervene at the outset of the litigation and instead allowed MBA to move to compel arbitration of Ruiz's claims. Nor did MBT explain why it sought to intervene only after MBA's initial motion to compel arbitration was denied in October 2012 and the order denying the motion was affirmed on appeal in Ruiz. MBT waited to see whether MBA would be successful on appeal in Ruiz. When MBA was not successful, MBT sought to intervene so that it could seek to compel arbitration anew and on its own behalf—that is, to take a second "bite at the apple" of moving to compel arbitration. Given MBT's unreasonable delay in seeking intervention, the trial court did not abuse its discretion in denying MBT's application on the ground it was untimely. The record amply supports the trial court's observation in its tentative ruling denying MBT's application that the application was "nothing more than a thinly-veiled attempt by [MBT] to get yet another bite at the apple as to its enforcement of the 2010 and/or 2011 arbitration agreements that are at the center of this dispute."
MBT's principal claim on appeal is that the order denying its application "runs afoul of the Savings Clause in Section 2 of the Federal Arbitration Act," which "'permits agreements to arbitrate to be invalidated by "generally applicable contract defenses, such as fraud, duress, or unconscionability," but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.'" (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339-340.) MBT observes that, in California, the "timeliness for enforcement" of written contracts generally is governed by the four-year limitations period of section 337. MBT points out that it filed its application on August 7, 2015 "well shy of the four-year period that began to run on June 11, 2012, when Ruiz filed [the present] action in breach of his arbitration requirements." MBT thus claims the trial court violated the Federal Arbitration Act "by applying the statute of limitations in a manner that disfavors arbitration" and this error requires reversal.
As Ruiz points out, this argument makes no sense. Timeliness, for purposes of permissive or mandatory intervention under section 387, is not based on any statute of limitations. Rather, timeliness is a factual question which asks whether the proposed intervenor unreasonably delayed in seeking intervention. (Allen v. California Water & Tel. Co., supra, 31 Cal.2d at p. 108.) And here, the record amply supports the court's implied finding that MBT unreasonably delayed in seeking intervention.
MBT also argues its application was timely because MBT first filed an ex parte application to intervene on March 10, 2015, less than one month after the remittitur issued in Ruiz and less than 45 days after Ruiz served his complaint on MBA on July 13, 2012—if the amount of time the case was stayed based on MBA's initial motion to compel arbitration (§ 1281.4) is subtracted from this time line. MBT argues it was therefore "misleading" for Ruiz to argue that MBT "sat on the sidelines of this action for almost three years, lying in wait for the resolution of [MBA's] effort to compel arbitration with [Ruiz]." (Italics added.) But timeliness is not solely a matter of the length of the proposed intervener's delay in seeking intervention. As stated, an application to intervene is untimely if the proposed intervenor unreasonably delays in seeking intervention. (Allen v. California Water & Tel. Co., supra, 31 Cal.2d at p. 108.)
Furthermore, section 387 subdivision (b) was enacted after, was modeled after, and is virtually identical to rule 24(a) of the Federal Rules of Civil Procedure. (Ziani, supra, 243 Cal.App.4th at pp. 280-281.) "'[W]hen the Legislature adopts the substance of a non-California statute, the Legislature is presumed to have acted with knowledge and in light of decisions interpreting the adopted statute. [Citation.]'" (Id. at p. 281.) It therefore appears that the Legislature "must have intended that section 387[, subdivision (b)] should be given the same meaning, force, and effect as has been given to rule 24 by the federal courts." (Ibid., citing Hodge v. Kirkpatrick Development, Inc., supra, 130 Cal.App.4th at p. 555.) Federal court decisions applying rule 24(a) "focus '"on the date the person attempting to intervene should have been aware his interest[s] would no longer be protected adequately by the parties, rather than the date the person learned of the litigation."'" (Ziani, supra, at p. 281 and cases cited.) Accordingly, federal court decisions generally require the proposed intervener to seek intervention as soon as it knows or has reason to know its interests might be adversely affected by the outcome of the litigation or might be inadequately protected by the parties to the litigation. (See, e.g., Chamness v. Bowen (9th Cir. 2013) 722 F.3d 1110, 1121; California Dept. of Toxic Substances Control v. Commercial Realty Projects, Inc. (9th Cir. 2002) 309 F.3d 1113, 1120.)
All further references to rules are to the Federal Rules of Civil Procedure. --------
MBT's application did not meet federal court standards for intervention under rule 24(a), or its analogous California statute, section 387, subdivision (b). MBT knew from the inception of the litigation that its interests might be adversely affected by the outcome of the litigation. MBT was Ruiz's employer, was represented by the same counsel as MBA, and did not deny it was aware of Ruiz's lawsuit from the outset. Additionally, MBT did not claim it knew or should have known, at any point in time, that MBA would not adequately protect MBT's interests in the lawsuit. Rather, MBT moved to intervene only after MBA did not adequately protect MBT's interest in compelling arbitration of Ruiz's claims. A party's actual failure (as opposed to its anticipated failure) to protect a proposed intervener's interest in the litigation is not a basis for either mandatory or permissive intervention in the litigation.
IV. DISPOSITION
The May 11, 2015, order denying MBT's application to intervene in this action is affirmed. Ruiz shall recover his costs on appeal. (Cal. Rules of Court, rule, 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: HOLLENHORST
Acting P. J. CODRINGTON
J.