Filed 8/30/18 Farmer v. Labor Ready Southwest, Inc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

TYLER FARMER,

Plaintiff,

v.

LABOR READY SOUTHWEST, INC.,

et al.,

Defendants and Respondents,

MICHAEL HULL,

Movant and Appellant.

D072129

(Super. Ct. No. 37-2011-00071128-

CU-OE-EC)

APPEAL from an order of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Appeal dismissed in part; affirmed in part.

Capstone Law, Glenn A. Danas, Melissa Grant, Liana C. Carter and Arnab Banerjee for Movant and Appellant.

Ongaro, David R. Ongaro and Cara R. Sherman for Defendants and Respondents.

I.

INTRODUCTION

In November 2011, plaintiff Tyler Farmer brought this representative action alleging a single cause of action under the Private Attorneys General Act (Lab. Code, §§ 2698 et. seq.) (PAGA) against his former employer, Labor Ready Southwest, Inc. and its affiliated companies, TrueBlue, Inc. and True Blue Enterprises (collectively “Labor Ready”).

Farmer died in July 2013. After learning of Farmer’s death, Labor Ready filed a motion to dismiss the case in the trial court. Nine days before the hearing on the motion to dismiss, proposed intervenor Michael Hull filed a motion to intervene in the action. After a hearing on the motion to dismiss, the trial court entered an order in February 2017 granting the motion to dismiss and stating, “Nothing in this ruling prevents proposed intervener Hull from pursuing his own separate PAGA action.”

On appeal, Hull contends that he has standing to appeal the trial court’s February 2017 order, both as an order dismissing the case and also as an order effectively denying his motion to intervene. We conclude that, as a nonparty to the action, Hull lacks standing to appeal the February 2017 order insofar as it constitutes an order dismissing the case, but that Hull does have standing to appeal the February 2017 order as an order implicitly denying his motion to intervene. We further conclude that the trial court did not err in implicitly denying the motion to intervene. For reasons that we explain, we conclude that the trial court could have reasonably exercised its discretion to conclude that the motion to intervene was untimely. Accordingly, we dismiss Hull’s appeal insofar as it seeks review of the February 2017 order as an order of dismissal. We affirm the February 2017 order insofar as it implicitly denies Hull’s motion to intervene.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Farmer brought this representative action in November 2011, alleging a single cause of action under PAGA against Labor Ready. In his complaint, Farmer stated that he brought his PAGA claim on behalf of himself and certain other employees and former employees of Labor Ready. Farmer alleged that Labor Ready had committed various Labor Code violations, including failing to pay wages and failing to provide meal and rest breaks.

The trial court granted Labor Ready’s motion to compel arbitration in the matter, on a representative basis, in August 2012. The parties stipulated that the arbitration would be stayed pending the resolution of a related class action.

Farmer died in July 2013. Farmer’s counsel did not learn of Farmer’s death until on or about March 9, 2016. Labor Ready was not informed of Farmer’s death at this time.

The stay of the arbitration was lifted in Spring of 2016.

In April 2016, proposed intervenor Hull retained Farmer’s counsel, Capstone Law APC (Capstone), in connection with this matter. Capstone first informed the arbitrator and Labor Ready of Farmer’s death in August 2016. The following month, in September 2016, five months after Hull retained Capstone, Hull filed a motion to intervene in the arbitration. The arbitrator denied the motion to intervene on several grounds, including that Hull’s arbitration agreement did not permit representative arbitration. In December 2016, the arbitrator dismissed the arbitration for lack of a claimant.

The following month, Labor Ready filed a combined motion to dismiss/request for sanctions in the action pending in the trial court. In February 2017, nine days before the scheduled hearing on the motion to dismiss/request for sanctions, Hull filed a motion to intervene in the trial court. After a hearing on the motion to dismiss/request for sanctions, the trial court entered an order on February 17, 2017 granting the motion to dismiss and denying the request for sanctions. While the court’s February 17 order did not expressly rule on Hull’s motion to intervene, the order stated, “Nothing in this ruling prevents proposed intervener Hull from pursuing his own separate PAGA action.”

Hull timely appeals from the February 17 order.

III.

DISCUSSION

A. Hull lacks standing to appeal from the February 17, 2017 order insofar as it constitutes an order of dismissal; Hull may appeal the February 17, 2017 order to the extent that it constitutes an order implicitly denying his motion to intervene

Hull claims that he may appeal the February 17, 2017 order insofar as the order constitutes an order of dismissal. Hull also claims that he may appeal the February 17, 2017 order because the order implicitly denied his motion to intervene.

1. Factual and procedural background

a. Labor Ready’s combined motion to dismiss and request for sanctions

Labor Ready filed a motion to dismiss/request for sanctions on January 25, 2017. In an accompanying brief in support of the motion to dismiss, Labor Ready noted that the trial court had previously compelled the matter to arbitration and that the arbitration was final. Labor Ready explained that the arbitrator had dismissed the arbitration due to the lack of an available claimant. The arbitrator based this finding on Farmer’s July 2013 death and the arbitrator’s denial of Hull’s September 2016 motion to intervene in the arbitration. Accordingly, Labor Ready argued that the trial court should dismiss the case. Labor Ready also requested that the court order Capstone to pay Labor Ready sanctions in the amount of $35,090 for attorney fees and costs that Labor Ready incurred as a result of Capstone’s alleged “hid[ing]” of Farmer’s death.

Capstone filed an opposition to the motion to dismiss/request for sanctions on February 3, 2017. In the opposition, Capstone stated, “[B]ecause Mr. Farmer has passed away, and Mr. Hull will be moving to intervene into this action in court, Capstone does not oppose the motion to dismiss Mr. Farmer from the action.” Capstone requested that the court defer ruling on the motion to dismiss until the court could consider Hull’s yet-to-be-filed motion to intervene. Capstone argued:

“Hull expects to file his motion to intervene before the date set for the hearing of Labor Ready’s motion. [Fn. omitted.] Accordingly, the most prudent way to proceed would be for the court to continue the hearing on Labor Ready’s motion to dismiss, to the hearing date of the motion to intervene. At that time, the Court would be in a position to decide whether Hull, as the State’s proxy, should be permitted [to step] into Farmer’s shoes with respect to the PAGA claim or whether this action should be dismissed with prejudice (which would result in the State of California and aggrieved employees left unable to recover millions of dollars in penalties for Labor Ready’s illegal practices under PAGA).”

Capstone also argued that the trial court should deny Labor Ready’s request for sanctions. In support of this contention, Capstone stated that it had not become aware of Farmer’s death until March 9, 2016, and argued that once it learned that Farmer had died, it “promptly” revealed Farmer’s death to the arbitrator and to Labor Ready.

Capstone lodged several documents with its motion, including a declaration from one its attorneys, Arnab Banerjee, stating that Capstone had learned of Farmer’s death “on approximately March 9, 2016,” and that Hull had retained Capstone in “connection with this matter on or about April 12, 2016.”

Labor Ready filed a reply brief on February 9, 2017 in which it argued that Capstone had conceded that Farmer’s claim must be dismissed. Labor Ready argued that the trial court should not delay in dismissing the case because of Hull’s “anticipated[ ] fruitless bid to intervene.” (Capitalization & boldface omitted.) Labor Ready also reiterated its argument that Capstone should be ordered to pay attorney fees and costs as a sanction for failing to timely bring Farmer’s death to the attention of the trial court, arbitrator, or Labor Ready.

b. Hull’s motion to intervene

Hull filed a motion to intervene on February 8, 2017. The cover page of the motion indicated that the motion would be heard on June 16, 2017. Hull lodged a proposed complaint in intervention with his motion.

c. Capstone’s request that the court hear Labor Ready’s motion to dismiss and Hull’s motion to intervene together

Capstone filed a status conference statement on February 10. In the statement, Capstone requested that the trial court hear the motion to dismiss and the motion to intervene concurrently.

d. The trial court’s tentative ruling granting Labor Ready’s motion to dismiss and denying its request for sanctions

On February 15, the trial court issued a tentative ruling granting Labor Ready’s motion to dismiss and denying its request for sanctions.

e. The February 17 hearing

The trial court held a hearing on Labor Ready’s motion to dismiss and request for sanctions on February 17. During the hearing, with respect to its request for sanctions, Labor Ready argued that Capstone knew of Farmer’s death in March of 2016, and yet failed to promptly notify the arbitrator, Labor Ready or the trial court. Labor Ready argued that it had incurred significant costs in continuing to defend the matter after March 2016, including selecting an arbitrator, before Capstone revealed Farmer’s death during the arbitration.

Capstone acknowledged that it learned of Farmer’s death in 2016. Capstone further stated that “about a month after Mr. Farmer’s death,” Capstone was retained “by Mr. Hull to essentially step into [Farmer’s] shoes.” Capstone argued that, given that a PAGA plaintiff is a proxy for the State of California, there was “no reason to suspect” that Farmer’s passing would affect “the claims of the State of California.” Accordingly, Capstone argued that there was no basis for awarding sanctions, particularly given the “extremely high standards” for issuing such an award. Capstone also reiterated its request that the court defer ruling on the motion to dismiss until the court had the opportunity to consider Hull’s motion to intervene on a “fully-briefed basis.”

Shortly thereafter, the court issued its ruling stating:

“Clearly, the court understands those arguments, and I want you to know the court understands the effect it has, number one, on the motion for attorney’s fees, the bad faith, but the one that I really was concerned about and looked at was the court clearly understands PAGA claims; [the] court clearly understands the effect of a dismissal in this case on PAGA claims. But in looking at everything, the tentative ruling now becomes the order of the court.”

Immediately thereafter, the court clerk remarked, “There was a status conference set for some reason?”

The trial court responded, “Not now.”

That same day, the trial court entered a signed order dismissing the case. That order states:

“[Labor Ready’s] motion for an order dismissing this case with prejudice is granted. Plaintiff Tyler Farmer’s complaint is dismissed pursuant to the arbitrator’s ruling dated November 4, 2016, and the dismissal of December 30, 2016. Plaintiff’s counsel still has not petitioned for the appointment of an administrator. There is no evidence plaintiff’s counsel notified the State of California of the status of this case. Similar to Young v. Ross-Loos Medical Group, Inc. (1982) 135 Cal.App.3d 669, the arbitrator’s decision is final at this time.

“[Labor Ready’s] request for attorney’s fees and sanctions pursuant to Code of Civil Procedure section 128.5[ ] is denied. [Labor Ready has] not shown bad faith that plaintiff’s counsel actually knew of Farmer’s death prior to March 2016.”

“Nothing in this ruling prevents proposed intervener Hull from pursuing his own separate PAGA action.”

f. The appeal

Hull filed a notice of appeal from the February 17, 2017 order. In his notice of appeal, Hull stated, “The order dismissing the case is appealable.” Hull also stated, “The order is also appealable to the extent the trial court denied the motion for leave to intervene.”

While the appeal was pending, we solicited letter briefs from the parties concerning Hull’s standing to appeal the February 17 order. After the parties filed the requested letter briefs, we issued an order permitting the appeal to proceed in its entirety and directing the parties to further address Hull’s standing to appeal in their appellate briefs.

2. Governing law

a. Appealable judgments and orders

i. An order of dismissal

” ‘[A]n order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment.’ ” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699 (Daar); § 581d.)

ii. An order denying a motion to intervene

“An order denying a motion to intervene is appealable when it finally and adversely determines the right of the moving party to proceed in the action.” (Noya v. A.W. Coulter Trucking (2006) 143 Cal.App.4th 838, 841 (Noya).) “Generally, when a ruling ‘in essence’ denies leave to intervene in an action, the aggrieved party may challenge it on appeal, provided that it constitutes a final determination of the party’s entitlement to participate in the action. (In re Veterans’ Industries, Inc. (1970) 8 Cal.App.3d 902, 916 [(Veterans’ Industries, Inc.)]; see Jun v. Myers (2001) 88 Cal.App.4th 117, 122–123.)” (Roos v. Honeywell Internat., Inc. (2015) 241 Cal.App.4th 1472, 1484.)

b. Standing to appeal

“Under . . . section 902, ‘[a]ny party aggrieved’ may appeal a judgment. ‘It is generally held, however, that only parties of record may appeal; consequently one who is denied the right to intervene in an action ordinarily may not appeal from a judgment subsequently entered in the case. [Citations.] Instead, he may appeal from the order denying intervention.’ ” (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 263 (Hernandez).)

3. Application

a. Hull lacks standing to appeal from the February 17 order insofar as it constitutes an order dismissing the case

The trial court’s February 17 signed order dismissing the case constitutes a final judgment. (See Daar, supra, 67 Cal.2d at p. 699; § 581d.) However, for the reasons stated below, Hull lacks standing to appeal from that judgment.

Hull contends that he may appeal from the February 17 order insofar as it constitutes an order dismissing the case because “[n]onparties who are aggrieved by a judgment may appeal from it.” (Quoting In re FairWageLaw (2009) 176 Cal.App.4th 279, 285 (FairWageLaw).) Hull also contends that he may appeal the trial court’s order dismissing the case because, as a “nonparty aggrieved employee,” Hull “is bound by the trial court’s [dismissal] order.” (Citing Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295–296 (Marsh) and Slaughter v. Edwards (1970)11 Cal.App.3d 285, 291 (Slaughter).) These arguments fail in light of the Supreme Court’s recent decision in Hernandez.

In Hernandez, the Supreme Court relied on longstanding Supreme Court precedent to reaffirm that an unnamed class member may not appeal from a class judgment, settlement or attorney fee award unless the member has become a party to the action by intervening in the case or by filing a motion to vacate the judgment (Hernandez, supra, 4 Cal.5th at p. 263.) In reaching this conclusion, the Hernandez court reaffirmed the validity of its holding in Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199 (Eggert), that ” ‘only a party to the record can appeal.’ ” (Hernandez, supra, at p. 269, quoting Eggert, supra, at p. 201; see Hernandez, at p. 269 [“Eggert’s analysis provides the court with sound guidance for interpreting current section 902[ ] and the right to appeal a final judgment”].)

Moreover, the Hernandez court specifically disapproved prior Court of Appeal decisions, including Trotsky v. Los Angeles Fed. Sav. & Loan Assn. (1975) 48 Cal.App.3d 134, 139 (Trotsky), in which courts had concluded that an objector to a class action settlement could appeal the overruling of the objector’s objections without becoming a party to the action. (Id. at p. 274, fn. 4.) In disapproving such cases, the Hernandez court reasoned, “[I]n focusing primarily on the ‘aggrieved’ element of section 902, Trotsky failed to examine the statute’s additional requirement that the objector must also be a ‘party’ of record to the class action to gain the right to appeal the trial court’s judgment.” (Id. at p. 270.) The Hernandez court also expressly rejected the argument that an objecting class member should be permitted to appeal the overruling of objections because a class settlement is “generally binding on all class members.” (Id. at p. 272.) The Hernandez court reasoned, “Following Eggert and requiring intervention does not discourage unnamed class members from filing a meritorious appeal. Rather, it continues a manageable process under a bright-line rule that promotes judicial economy by providing clear notice of a timely intent to challenge the class representative’s settlement action.” (Ibid.)

It is undisputed that Hull never become a party to the action. Thus, in light of Hernandez, even assuming, strictly for the purpose of argument, that Hull was both aggrieved by the trial court’s order dismissing Farmer’s action and bound by the order, we conclude that Hull lacks standing to appeal the February 17 order insofar as it constitutes an order dismissing the case. (Hernandez, supra, 4 Cal.5th at p. 269 [” ‘[I]it is a settled rule of practice in this state that only a party to the record can appeal,’ ” quoting Eggert, supra, 20 Cal.2d at p. 201 (italics added)].)

Hull’s attempts to distinguish Hernandez in his reply brief are not persuasive. Hull notes that, unlike the appellant in Hernandez, he did formally move to intervene. However, there is nothing in Hernandez that suggests that a movant becomes a party of record merely by filing a motion to intervene. Indeed, Hernandez makes clear that ” ‘one who is denied the right to intervene in an action ordinarily may not appeal from a judgment subsequently entered in the case.’ ” (Hernandez, supra, 4 Cal.5th at p. 263, italics added; see Veterans’ Industries, Inc., supra, 8 Cal.App.3d at p. 916 [“one denied intervention is not entitled to appeal from the judgment”].) It is undisputed that the trial court did not grant Hull’s motion to intervene.

Hull also notes that the Hernandez court did “not deal with any PAGA claim and therefore had no occasion to determine appellate standing of aggrieved employees, who may be bound by the trial court’s decision.” While Hernandez involved a class action and not a PAGA claim, Hull fails to present any convincing argument as to why a nonparty in a PAGA action should be permitted to appeal the judgment in such an action while, under Hernandez, a nonparty in a class action may not. The fact that a nonparty PAGA employee may be bound by a judgment in the case is not a reason for permitting such an appeal, since the same was true of the nonparty unnamed class members in Hernandez. (Hernandez, supra, 4 Cal.5th at p. 263 [“unnamed class members may not appeal a class judgment,” notwithstanding that such class members “will be bound by the Hernandez class judgment” (id. at p. 273)].)

Accordingly, we dismiss Hull’s appeal from the February 17 order insofar as Hull seeks review of the trial court’s order dismissing the case.

b. Hull may appeal the February 17 order insofar as it constitutes an order implicitly denying his motion to intervene

Hull claims that he may appeal the February 17 order because it constitutes an order implicitly denying his motion to intervene.

While the trial court did not issue an order expressly ruling on Hull’s motion to intervene, the February 17 order states in relevant part, “Nothing in this ruling prevents proposed intervener Hull from pursuing his own separate PAGA action.” (Italics added.) The italicized language supports the conclusion that the trial court understood that its ruling was, in “essence,” a “final determination of the right of [Hull] to join in the proceeding as a party.” (Veterans’ Industries, Inc., supra, 8 Cal.App.3d at p. 916.)

This conclusion is supported by the trial court’s statement at the February 17 hearing that it “clearly under[stood] the effect of a dismissal in this case on PAGA claims.” This language suggests that the trial court intended that its dismissal order also constitute a denial of Hull’s motion to intervene, since Capstone had repeatedly requested that the trial court rule on the motion to intervene concurrently with the motion to dismiss and repeatedly argued that to deny Hull the right to intervene would impede both Hull’s and the State’s interests in prosecuting the PAGA claims in the action.

This interpretation of the February 17 order is bolstered by the fact that the trial court’s formal dismissal order, entered on March 2, states, “All pending motions are taken off-calendar.” This statement, together with the trial court’s response to the court clerk’s inquiry at the conclusion of the February 17 hearing, suggests that the trial court’s February 17 order does constitute an order implicitly denying Hull’s motion to intervene.

Labor Ready’s arguments to the contrary are not persuasive. Labor Ready contends that the trial court had “no authority to hear the [m]otion to [i]ntervene” because the motion constituted an improper request to reverse the arbitrator’s decision denying intervention in the arbitration. Even if we agreed with Labor Ready that Hull’s motion to intervene in the trial court was improper in light of the arbitrator’s denial of Hull’s motion to intervene in the arbitration, this argument goes to the merits of the intervention motion, and does not demonstrate that the February 17 order is not appealable.

Labor Ready also contends that the record is “insufficient” to permit review of any “alleged” ” ‘denial’ ” of Hull’s motion to intervene. Even assuming that the record was inadequate to permit this court to review Hull’s claims on appeal, an inadequate record is not a basis for concluding that an order is not appealable and dismissing the appeal. Rather, where an appellant provides an inadequate record, the reviewing court may affirm the order from which the appellant appeals. (See Grebow v. Mercury Ins. Co. (2015) 241 Cal.App.4th 564, 582 [“The Grebows’ appeal on the motion for new trial may be affirmed based on an inadequate record”].)

Accordingly, we conclude that Hull may appeal the February 17 order insofar as it constitutes an order implicitly denying his motion to intervene.

B. The trial court did not abuse its discretion in implicitly denying Hull’s motion to intervene

Hull contends that the trial court abused its discretion in implicitly denying his motion to intervene. Labor Ready contends that we may affirm the order implicitly denying the motion to intervene on several grounds, including that the trial court could have reasonably exercised its discretion to deny the motion to intervene on timeliness grounds. We agree with Labor Ready with respect to its timeliness argument.

1. Governing law

Former section 387 authorized a third party to seek intervention in existing litigation under certain circumstances. As relevant here, any attempt to intervene in a case must be made “upon timely application.” (§ 387, subds. (a), (b), italics added.)

“[I]t is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. [Citations.]” (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108.) “[T]he timeliness of a motion to intervene under section 387 should be determined based on the date the proposed interveners knew or should have known their interests in the litigation were not being adequately represented.” (Ziani Homeowners Ass. v. Brookfield Ziani LLC (2015) 243 Cal.App.4th 274, 282 (Ziani).)

2. Standard of review

“An order denying intervention is reviewed under the deferential abuse-of-discretion standard.” (Noya, supra, 143 Cal.App.4th at p. 842; see ibid. [“The trial court did not abuse its discretion when it denied [movant’s] application for intervention as untimely”]; Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109 (Northern Cal. Psychiatric Society) [concluding that trial court did not abuse its discretion in denying application to intervene as untimely].) “A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious or patently absurd in light of the circumstances.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 147.)

As discussed, in part III.A.1.e, ante, the trial court did not discuss its reasons for implicitly denying Hull’s motion to intervene. Nevertheless, we must ” ‘presume that the court’s order is supported by the record; if there is substantial evidence in the record to support the court’s implied finding of fact, the factual finding will be upheld. However, the conclusion the court reached based upon those findings of fact will be reviewed by this court for abuse of discretion.’ ” (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148, italics omitted.)

In Britt v. East Side Hardware Co. (1914) 25 Cal.App. 231, the Court of Appeal explained the proper role of an appellate court in reviewing the denial of a motion to intervene in a case in which the record did not indicate the reasons for the court’s denial of the motion:

“The record does not reveal the reason or reasons which moved the court below in its course on the appellant’s motion. But, whatever might have been the grounds upon which the said motion was denied, we must assume, in the absence of an affirmative showing to the contrary, that the action of the court in disposing of it was legally justified. In other words, every presumption in support of the order must be indulged, it not appearing from the face of the record that the court erred in making it, and we must presume, therefore, that the appellant, on his motion, submitted to the court no legal ground or reason for the intervention sought for by him.” (Id. at p. 234.)

(See, e.g., Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 51 [concluding that trial court did not abuse its discretion in denying motion to intervene without specifying reasons for such denial where “request to intervene was untimely”].)

3. Factual and procedural background

Farmer brought this action in November 2011. In August 2012, the trial court granted, in part, Labor Ready’s motion to compel arbitration. The parties agreed to stay the arbitration pending a class action in another matter related to Farmer’s claims.

Farmer died in July 2013.

Attorney Banerjee stated in his declaration that Capstone learned of Farmer’s death on approximately March 9, 2016 and that Hull retained Capstone in connection with this matter on or about April 12, 2016.

The stay of the arbitration was lifted no later than May 19, 2016.

On May 23, 2016, Capstone filed a status conference statement in the trial court that stated that the arbitration of Farmer’s claim had resumed and that the “parties are currently engaged in selecting an arbitrator . . . .” The statement did not indicate that Farmer had died and did not mention Hull.

Capstone notified Labor Ready and the arbitrator of Farmer’s death on August 5, 2016, at the start of the first telephonic conference in the arbitration.

On September 9, Hull filed a motion to intervene in the arbitration. The arbitrator denied the motion on November 4. The arbitrator dismissed the arbitration for lack of an available claimant on December 30.

On January 25, 2017, Labor Ready filed a combined motion to dismiss the case and request for sanctions. On February 8, Hull filed a motion to intervene in the trial court. The cover sheet of the motion to intervene indicated that it would be heard on June 16, 2017. The trial court implicitly denied the motion to intervene on February 17.

4. Application

Capstone knew, as of April 12, 2016, when Hull retained it in connection with this case, that Farmer had died. It is thus clear that Hull should have known, as of that date, that his “interests in the litigation were not being adequately represented” by Farmer. (Ziani, supra, 243 Cal.App.4th at p. 282.) Yet, Hull waited nearly 10 months, until February 2017, to file a motion to intervene in the case.

While a portion of this nearly 10-month delay in filing a motion to intervene in the trial court is attributable to Hull seeking to intervene in the arbitration, Hull also waited nearly five months after retaining Capstone to file a motion to intervene in the arbitration. (Compare with Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661, 669 (Sanders) [concluding trial court did not err in determining State “was not guilty of an unreasonable delay,” in filing complaint in intervention where State filed complaint in intervention ten days after learning State’s interests in action were impacted by underlying litigation (id. at p. 667)].) Further, the stay of the arbitration was lifted no later than May 19, 2016. Yet, neither Farmer’s counsel nor Hull informed the arbitrator, the American Arbitration Association, or Labor Ready of Farmer’s death until August 2016.

Moreover, even assuming, as Hull contends, that the trial court lacked jurisdiction to rule on a motion to intervene in the litigation while the arbitration was pending, Hull did not act promptly to file a motion to intervene even upon the arbitrator’s dismissal of the arbitration. Hull did not file his motion to intervene until after Labor Ready had filed a motion to dismiss the case. Because Hull failed to file the motion to intervene immediately upon the dismissal of the arbitration, briefing on the motion to intervene was not complete at the time of the hearing on the motion to dismiss. (Compare with Sanders, supra, 53 Cal.App.3d at p. 669 [concluding State’s complaint in intervention seeking to recover civil penalties sought in plaintiffs’ suit against defendant for violation of environmental statute was timely where it was filed “in time to allow the court to decide as to the disposition of civil penalties”].)

In sum, Hull filed the motion to intervene on nearly the eve of the dismissal of the case, approximately 10 months after he knew that his interests were not being represented by Farmer. Under these circumstances, the trial court would not have acted unreasonably or arbitrarily in denying the motion to intervene on timeliness grounds, given the “tardiness of [the motion] for intervention.” (See Northern Cal. Psychiatric Society, supra, 178 Cal.App.3d at p. 109; see ibid. [concluding trial court did not abuse its discretion in denying, as untimely, application for intervention filed after trial court indicated its intent to grant summary judgment motion where movant had filed amicus brief in case six months prior to hearing on summary judgment].)

Accordingly, since “[t]imeliness is . . . one of the prerequisites for granting [a motion] to intervene,” (Northern Cal. Psychiatric Society, supra, 178 Cal.App.3d at p. 109) we conclude that the trial court did not abuse its discretion in implicitly denying Hull’s motion to intervene.

IV.

DISPOSITION

Hull’s appeal is dismissed insofar as it seeks review of the February 17, 2017 order as an order of dismissal. The February 17, 2017 order is affirmed insofar as it implicitly denies Hull’s motion to intervene. Hull is to bear costs on appeal.

AARON, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.