Apria Healthcare provides home healthcare services. Its products are delivered by drivers and couriers, some of them employed through staffing agencies. In February 2022, former Apria licensed vocational nurse Travis Smith filed a wage-and-hour class action in Sutter County Superior Court on behalf of nonexempt Apria employees, and he later filed a separate action seeking civil penalties under the Private Attorneys General Act (PAGA), Labor Code § 2698 et seq. A 2023 stipulated order dismissed the class action, sent Smith’s individual PAGA claims to arbitration, and stayed the representative claims.

Meanwhile, a separate Los Angeles case, Quintero v. Apria Healthcare, produced a certified class of delivery drivers and settled for $16.5 million. In July 2024, the same plaintiffs’ firm filed a new class action in Los Angeles County Superior Court on behalf of drivers Angela Tisdale and Terrance Pratt, asserting the Quintero claims for drivers hired after September 14, 2021. Apria removed that case to federal court in November 2024.

Back in Sutter County, the Smith parties accepted a mediator’s proposal around June 2024 and signed a memorandum of understanding in October 2024. With Apria’s agreement, Smith filed an amended class and representative complaint on November 1, 2024 that revived the wage-and-hour claims and added a delivery driver, Uriel Arauz, along with courier claims mirroring those in the Tisdale/Pratt case. The settlement totaled $5.75 million, with $977,500 allocated to roughly 350 delivery drivers. Counsel for Tisdale and Pratt said the per-person value for the Quintero couriers was nearly 50 times that of the Smith couriers.

Beginning in August 2024, Tisdale and Pratt’s lawyers accused the Smith parties of a “reverse auction,” in which a defendant facing several class actions settles with the weakest plaintiffs’ counsel in hopes of winning approval of a cheap deal that bars the other claims. They repeated that charge in an October 15, 2024 brief in the federal case. Apria refused to disclose the memorandum’s terms. The Smith settlement won preliminary approval on April 21, 2025. Tisdale and Pratt say they learned of it on April 30, and on May 8, 2025 they filed an ex parte application to intervene, reconsider preliminary approval, and transfer the case to Los Angeles.

The Sutter County Superior Court denied the application, finding the reverse-auction theory had no basis beyond hope and conjecture. Its June 6, 2025 order denied the motion to intervene without making an express finding on timeliness. Tisdale and Pratt appealed. While the appeal was pending, the court granted final approval and entered judgment in August 2025. According to evidence Apria submitted on appeal, Tisdale and Pratt opted out of the settlement, and settlement checks went out in September 2025.

In the published case of Smith v. Apria Healthcare, No. C104113 (November 2026), the California Court of Appeal, Third Appellate District, affirmed the trial court’s order denying intervention. Before reaching the merits, the court denied Apria’s motion to dismiss the appeal as moot. It held that, even assuming the settlement was inadequate, the application to intervene was untimely, which defeated both mandatory and permissive intervention. Apria and the Smith plaintiffs were awarded their costs on appeal.

Apria argued that the final judgment, the lack of an appeal from it, and the distribution of settlement funds made the appeal moot under Hindman v. Owl Drug Co. (1935) 4 Cal.2d 451. The court disagreed. A 1977 amendment to Code of Civil Procedure § 387 permits intervention even after judgment, as recognized in Mallick v. Superior Court (1979) 89 Cal.App.3d 434. In addition, a separate pending appeal by a non-objecting class member, Ahsaki Hudson (No. C105695), challenging the denial of her motion to vacate the judgment could theoretically revive the Smith action and give Tisdale and Pratt a path back in. The court expressed no view on the merits of that appeal.

Both mandatory and permissive intervention under section 387 require a “timely application.” Noting that the standard of review for mandatory intervention is unsettled, the court presumed the trial court impliedly found the application untimely and reviewed that finding for abuse of discretion, following Britt v. East Side Hardware Co. (1914) 25 Cal.App. 231. Tisdale and Pratt effectively conceded that standard.

Timeliness is judged by the totality of the circumstances, as stated in Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, and runs from when a would-be intervener knew or should have known its interests were not being adequately protected. Borrowing from R&G Mortgage Corp. v. Federal Home Loan Mortgage Corp. (1st Cir. 2009) 584 F.3d 1, the court held that awareness of a measurable risk is enough; certainty is not required. Tisdale and Pratt’s own evidence showed they suspected a reverse auction by late August 2024 and got no answers from Apria or the Smith plaintiffs. By the time they publicly raised the charge on October 15, 2024, the court said, that “should have been their cue to act.” Not knowing the precise settlement terms did not excuse waiting.

First, the stage of proceedings weighed against intervention, because the application came after preliminary approval and class notice, on the eve of final settlement. Second, the prejudice to the settling parties was significant: intervention in October 2024 might have spared months of work, but intervention in May 2025 would have scuttled the deal with no assurance of a better outcome for the class. Third, the delay of more than six months was unjustified. Because untimeliness defeated both forms of intervention, the court did not reach the remaining arguments or decide whether the settlement was fair.

Drivers Too Late to Intervene and Challenge Class Settlement