Key Points

  • The Third Appellate District affirmed a Sutter County order denying two rival class plaintiffs' application to intervene in a $5.75 million Apria Healthcare wage-and-hour settlement.
  • The court held the application untimely because the would-be interveners knew or should have known by October 15, 2024, that their interests were imperiled, yet waited until May 8, 2025, after preliminary approval and class notice.
  • The timeliness clock runs from knowledge of a measurable risk to one's interests, not from learning a settlement's terms; the parties' refusal to disclose a confidential MOU should have prompted action.
  • The stage of the proceedings, prejudice caused by the delay, and the length of and reason for the delay all weighed against intervention, assuming without deciding that the settlement was inadequate.
  • The court denied Apria's motion to dismiss the appeal as moot, distinguishing Hindman v. Owl Drug Co. because Code of Civil Procedure section 387 now permits post-judgment intervention and a class member's separate appeal is pending.

A California appeals court on Nov. 9 refused to revive a challenge to a $5.75 million wage-and-hour class settlement with Apria Healthcare LLC, holding that two former delivery drivers who called the deal collusive waited more than six months to try to join the case.

A three-justice panel of the Third Appellate District affirmed a Sutter County Superior Court order denying the drivers, Angela Tisdale and Terrance Pratt, leave to intervene. Acting Presiding Justice Renner wrote the published opinion, joined by Justice Mesiwala and Justice Wiseman, a retired Fifth District justice sitting by assignment.

The decision turned on when the clock starts for outsiders who want to challenge a class settlement from inside the case. The court held that they must move once they know of a measurable risk to their interests, not when they finally learn the deal's terms. The panel also rejected Apria's argument that the appeal became moot once the settlement was approved and the money paid out.

Tisdale and Pratt are named plaintiffs in a separate proposed class action against Apria, now pending in federal court in the Central District of California. Their lawyers also represented a certified class of drivers in an earlier Los Angeles case, Quintero v. Apria Healthcare, which ultimately settled for $16.5 million for 230 class members, or $71,739 each before fees and costs.

The Sutter County case was brought by Travis Smith, a former licensed vocational nurse, under the Private Attorneys General Act, seeking civil penalties on behalf of aggrieved non-exempt employees. After Smith and Apria accepted a mediator's proposal in June 2024, they agreed to an amended complaint that added delivery drivers as plaintiffs and a proposed driver class. The resulting settlement earmarked $977,500 for an estimated 350 drivers.

Tisdale and Pratt argued the deal was a "reverse auction." The opinion, quoting the Ninth Circuit, described that as occurring when "the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with in the hope that the district court will approve a weak settlement that will preclude other claims against the defendant." Their attorney, Daniel J. Palay, said in a declaration that per-driver value in Quintero was "nearly 50 times" that in Smith.

The drivers contended that the timeliness clock began on April 30, 2025, when Apria's counsel circulated a draft status report disclosing that the Smith settlement had been preliminarily approved. They filed an ex parte application to intervene on May 8, 2025, two days after the claims administrator notified class members of the settlement.

The panel said that timeline "cannot be squared with the record." Palay's own declaration stated that on or about Aug. 30, 2024, he "learned that there were efforts being made by Apria and the Smith counsel to effectuate a reverse auction settlement that would wipe out claims of the Couriers." An Oct. 15, 2024, brief in the Los Angeles case voiced "grave concerns" about a rushed settlement in Smith. Apria declined to share the parties' confidential settlement memorandum.

The drivers cited their unanswered requests as proof of their diligence. Renner wrote that the record cut the other way: "the fact that they tried and failed for months to gain assurances from Apria and the Smith plaintiffs also means they had increasing reason to believe their interests might not be adequately represented in the Smith settlement." The court concluded that Tisdale and Pratt knew or should have known by Oct. 15, 2024, that their interests were imperiled.

The court then found that all three timeliness factors weighed against them: the stage of the case, the prejudice their delay caused the other parties, and the length of and reason for the delay. Had the drivers moved in October, the court said, the parties might have avoided nearly seven months of work, including the settlement papers, the preliminary-approval motion and class notice. Intervention, Renner wrote, "would have scuttled the Smith settlement with no assurance the Smith plaintiffs could achieve a more favorable result in the Tisdale/Pratt action," where a federal judge had struck the drivers' class-certification motion as untimely.

"They should have sought to intervene then, when they could have participated in the settlement process and possibly affected the outcome," the court wrote. "Instead, they waited until the Smith settlement was rounding third and heading for home to file their application."

The court did not decide whether the deal was fair. "Even assuming the Smith settlement was inadequate, we conclude the application was untimely," Renner wrote. That finding defeated both of the drivers' requests: mandatory intervention, which a court must allow when an outsider's interest may be impaired and no existing party protects it, and permissive intervention, which a court may allow in its discretion.

Apria had asked the panel to dismiss the appeal as moot under the California Supreme Court's 1935 decision in Hindman v. Owl Drug Co., because final judgment was entered on Aug. 25, 2025, the drivers had opted out, and settlement checks went out on Sept. 29, 2025. The panel distinguished Hindman. It noted that a 1977 amendment to the intervention statute allows intervention "upon timely application," even after judgment, and that a class member, Ahsaki Hudson, is appealing the denial of her motion to vacate the judgment. The court wrote that it was "not prepared to say it would be impossible to grant effective relief, particularly given the allegedly collusive settlement at issue here."

Lawyers for Tisdale and Pratt included Alejandro P. Gutierrez of the Law Offices of Alejandro P. Gutierrez. The Smith plaintiffs were represented by James R. Hawkins of James Hawkins. Apria was represented by Nathan W. Austin of Jackson Lewis.

The court ordered that the respondents recover their costs on appeal. The Hudson appeal, No. C105695, remains pending before the same court, which said it expressed no opinion on its merits.