Mercado v. Atria Management Co., LLC, 2015 WL 5704376 (2015)
2015 WL 5704376 (Cal.Super.) (Trial Order)
Superior Court of California.
Los Angeles County
Jesse MERCADO, individually and as an aggieved employee pursuant to the Private Attorneys General Act
(“PAGA”), Plaintiff,
v.
ATRIA MANAGEMENT COMPANY, LLC a Delaware llimited liability company, and Atria Senior Living, Inc., a
Delaware corporation, and Does 1-10, Defendants.
No. BC 570823.
September 24, 2015.
Tentative Ruling on Paga Issues and Setting a Hearing on the Court’s Own Motion Under CCP 436/438
Barbara A. Meiers, Judge.
*1 The court now sets a hearing to take place on October 30, 2015 at 9:30 a.m. in Department 12 on a “court’s own motion” to
strike various allegations from the Second Amended Complaint and/or to dismiss all PAGA claims with prejudice for a failure
to state a cause of action for all of the reasons and on the grounds set forth and explained herein.
Date: September 24, 2015
Hon. <<signature>>
Barbara A. Meiers
Judge of the Superior Court
PAGA DISCUSSION
I. PROCEDURAL AND FACTUAL
BACKGROUND AND OVERVIEW
On July, 5, 2015, this court sua sponte raised concerns and issues about the Complaint on file noting, among other things, that
the plaintiff did not appear to have properly pled and presented a “PAGA” action (used to refer herein to “private attorney
general actions” brought under Labor Code sections 2698, et. seq.). The court gave plaintiff an option to amend his Complaint
to attempt to address the issues the court was raising or in the alternative to at that time have the court immediately set “on its
own motion” a motion under CCP 436 and 438 to strike or order a judgment on the pleadings as to the PAGA claims set forth
in the existing Complaint. Plaintiff opted to amend, which he was allowed to do without filing a motion to do so, and filed a
Second Amended Complaint (hereinafter the “ SAC”) on July 23, 2015 which states as its only “cause of action” a PAGA
claim. In response, the defendants filed what they titled a “Brief Regarding Defects in Plaintiff’s Second Amended Complaint”
on August 7, 2015.
Thereafter, on August 19, 2015, the court asked the parties to submit further materials, primarily legislative history, to assist
the court in evaluating PAGA pleading issues, and, primarily, what is intended by the code’s reference to the requirement that
a party set forth in its administrative complaint and ipso facto in court filings, “the specific sections of this code alleged to have
been violated, including the facts and theories to support the alleged violation.” Labor Code section 2699.3. The court is of the
tentative view that the plaintiff has still failed to comply with the pleading requirements and factual content called for in a
PAGA action and has set a hearing date on its own motion to consider striking or granting a judgment on the pleadings as to
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the entire SAC for a failure to state a cause of action or alternatively to strike many extraneous allegations and to allow leave
to amend, if plaintiff believes he can cure what the court tentatively sees as defects in his pleading and offers a tender of what
else might be pled.
The Second Amended Complaint in this case states with regard to plaintiff’s own capacity to sue and as to his alleged
“representative capacity” that the defendants in the action “jointly employed him” for about 4 months in 2015 as a server/
dishwasher in what appears to have been a senior citizen facility belonging to defendants located in Irvine California. (Plaintiff
does not state precisely what it was.) The defendants, he claims have their principal place of business in Kentucky but own
business locations throughout the United Stated Plaintiff goes on to state that the company has standardized manuals and a
centralized human resources department and labor budgets. Based on these and other similar allegations it appears that plaintiff
is seeking to represent all of the defendants’ employees in the State of California who are “nonexempt” employees (presumably
meaning hourly- paid employees) regardless of their job assignments, location , type of facility, etc. impliedly including
hundreds of workers of all sorts if they have been the subject of one or more of a whole series of listed Labor Code violationsand not even the same code violations or even type of violation of which the plaintiff complains.
*2 As to facts relating to what he is complaining about, all that plaintiff initially states is that at his locale in Irvine he was
required to sign a second meal period waiver titled “Agreement for Voluntary Waiver of Second Meal Period, etc.” and that
for “this reason alone” “Plaintiff is entiteld to prosecute a representative action on behalf of all non-exempt hourly employees
in California regardless of position or duties.” Second Amended Complaint, p.9 lines 21-27. But that is incorrect. Neither
plaintiff or any other employee has a cause of action based on this waiver if it was never utilized, and, again, reflecting a
repeated absence of material fact allegations in this pleading, plaintiff fails to state that he was ever entitled to a second meal
break which the employer refused to allow him to take based upon this waiver document or otherwise much less any
dates or times or even estimated dates or times when this occurred. In all events, this “waiver issue” is barred for a failure
to raise it in his administrative claim.
Plaintiff then goes on to seek “standing” as a representative on a second ground starting at page 10 of the SAC. Here he alleges
on “information and belief that “Plaintiff and non-party aggrieved employees were entitled to receive certain wages for overtime
compensation and that they were “not receiving certain wages for overtime compensation.” As to this, plaintiff provides a little
more, but not much. He does not state what his work hours were supposed to be for what services and when, if ever, and in
what respect he was asked to put in more than those hours, and what compensation was then paid to him as opposed to what
should have been paid , much less any factual allegations showing any actual similar situation of others he contends he
represents. Yet, on this vague contention along with numerous allegations of information and belief as what he thinks the
companies” statewide practices were or may have been, he seeks to represent all “aggrieved employees” in the State (if not
nationwide) who he surmises didn’t (may not have?) received overtime, similarly situated or not.
Plaintiff’s claim of this failure to pay him overtime appears to be based, looking to the allegations of his administrative claim
and the SAC, on the factual allegation that not all of his hours were being logged in. He does not say if this is because he
purposefully failed to do so or if his employer was intentionally failing to do so, but be that as it may, these claims reflect a
purely local action with no factual basis supplied which even suggests a national or statewide pattern of an employer failing,
much less knowingly failing, to input hours. Even as to a possible local group sharing this issue, there is no factual claim made
in the SAC to attempt to establish such a group, such as that others at his same location have complained of the same problem.
Similarly broad allegations are made in paragraph 40, again, with no facts or particulars supplied as to anything specific that
ever happened to the plaintiff. Everything is stated in totally conclusory terms and in terms of opinions as to what was
potentially going on elsewhere in presumably many other locations based merely on plaintiffs beliefs as to what companywide practices might be.
Finally, plaintiff concludes by saying that he is a properly “aggrieved employee” and aggrieved employee representative
because “one or more of the alleged violations were committed against them.” This statement tells us that of all of the violations
he now complains, he cannot identify, as case law requires (see cases infra) even a single specifically identifiable group with
a particular shared interest in the resolution of a particular legal issue common to the group.
At pages 13 through 15 of the SAC, plaintiff throws in a host of other alleged claims of violations, again, without any facts
supplied whatsoever, culminating in paragraphs 53 and 54 in which he now also asserts, inter alia, that the defendants also
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violated “numerous provisions of both the Labor Code sections regulating hours and days of work (which he does not even
bother to specify) as well as the applicable IWC Wage Order (which is not attached or its content described or the specific
violation noted).” [Material in parentheses added.] What hours or days of work was he asked or required to work and in violation
of what? Plaintiff tells us nothing.
*3 Plaintiff’s administrative California Labor and Workforce Development Agency claim (a prerequisite to filing suit) does
add some details; for example, there he states that he and other aggrieved employees were not paid overtime for hours they
worked (he only at the Irvine facility) for over 8 hours per day, based on the fact, at least in part (it is not clear on what else)
because these additional hours were not reflected on his pay records But he does not expressly state that he did in fact work for
over 8 hours on any given occasion, much less when, or even give an estimation of when and how often this occurred. He also
states that it was due to understaffing at his facility thatPlaintiff was prevented from taking his meal breaks because the
restaurant was too busy-not due to any “waiver form.”
In the claim letter, he tries to give himself statewide standing by alleging various things on highly speculative “information and
belief which requires a whole host of assumptions and jumps from one assumption to another before one can come to the
conclusion plaintiff seeks, to wit, that there is an identifiable group out there that he is suited to represent. First, he alleges on
information and belief, that the defendants’ facilities, he thinks, are understaffed statewide (the first assumption) and that from
that the court should reasonably jump to the conclusion that there is probable cause shown that specifically all of the
defendants’dining rooms are too busy statewide to the same degree as plaintiff’s locale (second jump) and that as a result of
that other employees in other facilities statewide, like plaintiff, cannot or are electing not to take their rest and meal breaks
(third jump).1 He similarly claims that he was too busy to take his allocated rest periods and should be compensated for that.
In short, aside from his own personal situation of allegedly having to do too much work to take his meal and rest breaks or to,
on occasion, leave work on time, essentially all that plaintiff has alleged in support of his effort to obtain statewide standing is
that he has suspicions based on information and belief that there are all sorts of Labor Code violations going on statewide. As
is more fully discussed infra such suspicions on the basis alleged here would not even support an Attorney General investigative
subpoena, much less a civil action by the Attorney General or a proxy.
As is more fully set forth below, suspicions are not enough to empower a plaintiff to bring a PAGA action, yet suspicions
are all that this plaintiff has or has alleged or demonstrated with regard to anything outside his own experience at the
one Irvine facility. Plaintiff has tried to dress his pleading up by saying that all of his “statewide” or “national”
allegations are based on “information and belief,” but in this PAGA area where plaintiffs, unlike the Attorney General,
cannot serve as investigators and use civil lawsuits to investigate much less to do so based on “suspicions,” such
allegations are not enough as is more fully discussed infra.
*4 Everything stated in the administrative claim attached as Exhibit 1 to the SAC relates to occurrences at the Irvine location
where the plaintiff worked and to the fact that he worked “off the clock” because that facility’s eating area was too busy and
understaffed. Nevertheless, by throwing in a bunch of on “information and belief allegations about how the defendants have
a corporate structure with standard handbooks etc, he tries to bootstrap this purely local singular experience into a statewide
action with standing in this plaintiff to now purport to represent all hourly employees, regardless of their job description or
where they work in the State or at what function, as “aggrieved employees”
In short, this case is much like the case of Williams v. Superior Court (2015) 236 Cal. App.4th 1151 now set to be reviewed by
the California Supreme Court in that in both cases the Complaint appears to be insufficient on its face to adequately state a
representative cause of action. The difference is that in Williams the adequacy of the complaint on its face was never addressed
and the case “jumped ahead” into the discovery phase with the only issue or appeal, accordingly, being the proper scope of
discovery (even though the complaint clearly failed to give adequate factual support for “representative” claims in the first
instance as a result of which, although not stated as the grounds, only limited discovery was ultimately allowed) whereas this
court is now addressing whether or not such potentially insufficient Complaints should be permitted to get past the pleading
stage where such deficiencies are clear on the face of the document in keeping with Krause v. Trinity Management Services,
Inc. (2000) 23 Cal.4th 116, more fully discussed infra, in which our Supreme Court stated that if “the action is not one brought
by a cokmpetent plaintiff for the benefit of injured parties, the court may decline to entertain the action as a representative
one.” [Emphasis added.]
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II. THE SCOPE OF THE DISCUSSION
The only issue technically before the court is whether or not it is going to set a hearing under CCP 436 and/or 438 with regard
to the plaintiff’s SAC, but in order to properly decide that issue and to give notice to the parties of what might be under
consideration in connection with any such motion, this court is of the view that a comprehensive discussion and determination
with regard to all outstanding PAGA questions ought to be undertaken because the resolution of every PAGA issue is related
to or ought to be related to how all other issues under PAGA are to be resolved. The court says “outstanding” PAGA questions
because it has become abundantly clear that as plaintiffs increase their reliance on these Labor Code sections, numerous
“PAGA” actions are being filed with different issues being posed in different courts (both state and federal) with conflicting
results on particular issues and with no case of which this court is aware addressing all of the potential issues so that the
resolution of one issue might not later end up being inconsistent with other aspects of the statute not addressed in that action.
This is indirectly what has happened in the Williams case where “discovery rights” were the subject even though the Complaint
itself was, in this court’s view, insufficient on its face to state a representative cause of action. Other cases discuss only the
sufficiency of notice to the employer or the content of the administrative claim, all without an attempt at a totally integrated
ruling addressing how each pleading and/content requirement should relate to each other. Undoubtably this is because the
parties are not raising the issues, causing the court’s to address only what has been raised, but this court has chosen to undertake
a broader discussion than the single issue before the court may require.
*5 In connection with this ruling, the court hereby incorporates by reference the content of the defendant’s briefs to the extent
their content is not in conflict with other aspects of this discussion, the court seeing no purpose in citing all of the same cases
and making the same arguments as are to be found therein.
III. THE STATUTES
What has been commonly referred to as a PAGA action is an action brought by one or more named plaintiffs pursuant to Labor
Code sections 2698, et. seq. Labor Code section 2699 provides in pertinent part as follows:
“…any provision of law, any providsion of this code that provides for a civil penalty to be assessed and
collected by the Labor and Workforce Development Agency or any of its departments…for a violation of
this code, may, as an alternative, be recovered through a civil action brought by fan aggrieved employee
on behalf of himself or herself and other current or former employees pursuant to the procedures specified
in Section 2699.3”
Section 2699.3 in turn provides that:
“(a) A civil action by an aggrieved employee pursuant to subdivision (a) or (f) of section 2699…shall commence only after the
following requirements have been met.
(1) The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce
Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts
and theories to support the alleged violation.”
This latter section then goes on to provide that if this Agency notifies the interested parties that it does not intend to proceed
with any enforcement action, then the “aggrieved employee/representative” may commence a civil action.
The following issues arise in attempting to apply and utilize these code sections.
First-what are the purposes of this legislation and how should the statutes be interpreted in light of their history and purpose
and their relationship to other related statutes?
Second-what is the meaning of and what is embraced by the concept of “ acting as a private attorney general”?
Third-what rights and powers can a plaintiff exercise while acting as a “private attorney general” in the context of a civil
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lawsuit, a) as an individual plaintiff, and, b) as a “representative.”
Fourth-what are the pleading requirements or what should they be in an action under these statutes including whether it should
be required that a copy of the “prerequisite- to-filing” notice to the Agency required by section 2699.3 be attached to the
Complaint and whether the plaintiff must plead and demonstrate (to avoid a judgment on the pleadings or a demurrer) by that
attachment (or, if not required to be attached, by a detailed pleading of facts as to what had been sent to the Agency, etc.) to
demonstrate that he or she did in fact give notice as required by code of the “specific code provisions” allegedly violated, plus
the “facts and theories” necessary to support the alleged violation, and, in that vein, that what the plaintiff did present to the
agency was in compliance with those code requirements ?
Fifth-what must be pled to establish “standing” and/or that the plaintiff can properly proceed in a “representative capacity?”
These issues will be addressed below although not necessarily in this order or framework.
IV. THE PURPOSE OF THE LEGISLATION
*6 Counsel in this case have assisted the court by researching the legislative history of the statutes and sections noted above.
The bottom line of their efforts has simply been to present tevidence that when the Private Attorney General Act of 2004 (Labor
Code sections 2698, et. seq.) was first passed authorizing private citizen employees to file civil suits “in the shoes of the
Attorney General its purpose was to provide an alternative to actions by labor departments and/or by the Attorney General to
enforce employee rights, the thought being that this “private attorney general” approach would serve to bypass the financial
constraints and limitations of time and labor which might otherwise impede the enforcement of these rights by government
agencies. By providing that employees could bring representative actions and that they could recover attorney fees, the bringing
of such actions was made more attractive and potentially more productive.
However, within a very few months, a potential for abuse was recognized, and legislators sought to prevent a wholesale use of
this section to support “shakedown” actions designed to force employers to a bargaining table even where there really was no
basis for any claim that anyone other than a single complaining employee’s rights were potentially being violated.2 On this
score it was stated among other things that numerous filings since the 2004 act had been passed had raised a spectre of a
potential abuse of the statute essentially to “extort” employer defendants by overly broad claims and filings. Accordingly, the
previously existing legislation was amended to add notice requirements and, most importantly, the requirement of setting forth
statement of facts, statutes and theories. It is in the light of this legislative purpose to allow increased enforcement of employee
rights while avoiding exaggerated and potentially frivolous burdensome litigation that courts need to interpret any ambiguities
in the Act.
V. WHAT DOES IT MEAN TO BE A “PROXY” FOR THE ATTORNEY GENERAL?
“Proxy” is one of the terms used in the cases discussing the legislative history of these Labor Code sections. That history
reflects, as both parties have submitted in their papers, that the purpose of the passing of the Private Attorney General Act was
to enable private citizen employees to act as a “proxy” for the Attorney General to assist in the enforcement of employee rights.
See Arias. v. Superior Court, infra. Accordingly, in response to inquiries in this case (some raised by the court) as to why and
how this plaintiff should be able to act in a representative capacity to sue on behalf of all of the “nonexempt employees” of the
defendant company throughout the State of California, the plaintiff’s response has been, as it is in so many other PAGA cases,
that because the PAGA plaintiff is acting in the “shoes of the Attorney General,” or as a “proxy” he or she has the right
to act utilizing the powers of that office and need plead nothing more than that he or she is proceeding as a representative
of an entire allegedly “aggrieved” group, however large and/or amorphously defined, with no further factual basis
alleged to define the group or to show any true “representative” capacity.
*7 The problem is that just what “Attorney General” role or power is being delegated by Labor Code sections 2698 and 2699.3
has not been addressed. In this court’s view, it needs to be because plainitffs seem to be of the view, as is the plaintiff in the
present case, that all they need to do is to be acting for the State and they have the right to allege and pursue any possible or
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potential violations of the Labor Code that they choose statewide, even if, as reflected in this filing, ithey cannot even identify
what they are and to use their Complaint and lawsuits to investigate such matters. This court disagrees.
The Attorney General has two sets of powers, One is to investigate possible violations of law, including but not limited to
violations of the Labor Code and the other is to then take enforcement action if there is probable cause to believe, after such
an investigation has been conducted, that such a violation has occurred. Such enforcement actions include the filing of suit, a
filing of criminal charges, the imposition of fines, etc. These powers are derived from Government Code section 11180 as is
more fully discussed infra, In the investigatory area, the Attorney General has broad powers to investigate the possibility that
a violation has occurred although those powers are not unlimited. In the enforcement area, the AG’s office is more consgtrained
in what it can do and to whom.
Unfortunately, PAGA plaintiffs seem to be filing suits in the belief or expectation that they can use such suits to investigate
possible violations as opposed to having facts sufficient to establish probable cause that any such violations have occurred as
to the “group” they claim to represent.
This thesis is erroneous. In this court’s view, no Attorney General investigative powers created and vested in administrative
agencies by Government Code section 11180 et. seq, have been delegated to private citizens by PAGA. The only “right that
has been conferred by the Act is to stand in the Attorney General’s “shoes” with regard to the filing of a civil suit and as such
to be limited to all the constraints that the Attorney General as well as any other civil litigant would face as a plaintiff in such
a suit.
Government Code section 11180 authorizes the head of each government department to make investigations and prosecute
actions concerning ‘All matters relating to…subjects under the jurisdiction of the department’ and subdivision (e) of section
11181 provides that in connection with such investigations and actions the department may issue ‘subpoenas for the attendance
of witnesses and the production of papers, books, accounts, documents and testimony in any inquiry, investigation, hearing or
proceeding pertinent or material thereto….”’Brovelli v. Superior Court (1961) 56 Cal.2d 524, 527. As this language makes
clear, the Attorney General along with various other department heads and administrative agencies has a range of powers which
this court has generally referred to as investigatory versus enforcement powers , i.e., the ability to investigate and then prosecute
actions.
As part of its investigatory powers, as is discussed in Brovelli, (see also, Donovan v. Lone Steeer (1984) 464 U.S. 408; United
States v. Morton Salt (1950) 338 U.S. 632, Craib v, Bulmash (1989) 49 Cal.3d 475), an agency (under section 11181) has broad
subpoena powers to aid in its investigations described in United States v. Morton Salt (1950 ) 338 U.S. 632, cited by the Brovelli
court at 529 as follows: “[T]he power to make administrative inquiry is not derived from a juducial function but is more
analogous to the power of a grand jury, which does not depend on a case or controversy in order to get evidence but can
investigate ‘merely on suspicion that the law is being violated or even just because it wants assurance that it is not” ’.See also,
Younger v. Jensen (1980) 26 Cal.3d 397 where the Attorney General was investigating “possible violations of law.”
*8 Nevertheless, this investigatory power is not without limitations. In some cases it is addressed as involving Fourth
Amendment issues and rights to be free of “unreasonable searches and seizures,” in others, such as Brovelli, courts decline to
address it as such (Id); but all courts which have addressed the issue have concluded that the agency must be able to show that
“the inquiry be one which the agency demanding production is authorized to make, that the demand be not too indefinite, and
that the information sought be reasonably relevant.” Op cit. As to this last restriction, issues such as overbreadth, etc. have been
encompassed and addressed. See, McPhal v. United States of America (1960) 364 U.S. 372, 380. Documents to be produced
may be adequate but not “excessive.” Craib v. Bulmash (1989) 49 Calo.3d 475, 483. In addition, overall, the use of
administrative subpoenas is also subject to court review, id, and in the end, a generalized “reasonableness” test is utilized
generally balancing the intrusion and cost with the need.
In keeping with such limitations, it is hard to imagine a situation even in a purely investigatory scenario in which a
complaint to the Department of Labor or to the Attorney General through the labor statutes by a single teller in Bank of America
that her pay checks for the last 4 months were “short” would be found to be a sufficient or reasonable basis, with nothing more,
to subpoena all of the Bank of America payroll and related records for every teller now or in the past employed by it everywhere
in the State, or, even beyond that, for every hourly- paid employee, ignoring the expense and hardship this would pose to the
company with virtually no justification.
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Yet, despite this and despite the legislature’s avowed concern to prevent abuses of employers and frivolous exaggerated suits
without factual support, this “teller scenario” is essentially what is being played out in one PAGA action after another, with the
investigation contemplated not to be accomplished by the use of a broad investigatory subpoena but by an attempt to substitute
the “discovery” process of a civil suit to conduct the investigation— the theory being that once the “magical” allegation is
made in the Complaint of a representative role then, in the “shoes” of the Attorney General PAGA plaintiffs ought to be allowed
to proceed based only on their limited factual submission of “one teller” to use their civil suit to try and find and support a
“possible” case on behalf of many others.
This problem with this is, first, that the private attorney general power and role assigned to private parties under PAGA is,
again, not an investigative power or role of investigator; and, second, even if such parties were delegated to be investigators
acting in the Attorney General’s “investigative shoes,” since even the Attorney General, him- or herself could not conduct
investigations of such a broad scope on such a limited showing of relevance or materiality as is typical in such overbroad PAGA
cases, a PAGA plaintiff also cannot do so.
It is, accordingly, no defense to a defendant’s attacks on a plaintiff’s “representative claims” for a plaintiff to simply rely on
the “mantra” of,” “we stand in the shoes of” or “we are the ‘proxies’of the Attorney General.”
These distinctions and limitations are important in assessing the role of a private plaintiff in a PAGA action. While the
Attorney General can investigate suspicions and “possible violations of law,” clearly a private individual cannot. There
is also a significant difference between what the Attorney General can do in terms of “discovery” through its administrative
subpoenas when it is engaged in the investigative process using its investigative powers, and what it can do as a party participant
in a lawsuit.
It is clear that the legislature did not intend to create or repose any such investigatory powers in private parties under Labor
Code sections 2698, et. seq. The section is explicit in its limitation to the ability to act for the Attorney General to file a civil
action, i.e., to take an enforcement step as to an existing violation. There is no invitation whatsoever in this code section or
any empowerment contained in its language which might vest in any private party a power to investigate and search for
“possible violations.” A private litigant under this Code section is constrained to file a Complaint only under the usual
restrictions and limitations which apply to every litigant (including the Attorney General were it to file a lawsuit) with regard
to the filing of a Complaint. Accordingly, all of the allegations a PAGA plaintiff asserts, including his or her “representative
claims” must be based on a probable cause existing before he or she files a lawsuit.. Acaro v. Silva & Silva Enterprises Corp.
(1999) 77 Cal. App.4th 152; Puryear v. Golden Bear Ins. Co. (1998) 66 Cal. App.4th 1188.
*9 Accordingly, it is simply not sufficient, despite the language in the code about having the ability to file as a “representative,
“ for a plaintiff to file a civil PAGA suit with an eye to using that suit as a basis for a “fishing expedition” seeking to use the
discovery processes incident to the civil suit filing to look for “possible violations” and to investigate the “possibility” of
wrongdoing. In California Press Pub. Co. V. Welling (1946) 327 U.S.186 the court commented on these distinctions between
administrative investigative actions and subpoenas and the civil judicial process saying: “The very purpose of the
[administrative] subpoena and of the order, as of the authorized investigation, is to discover and procure; evidence, not
to prove a pending charge or complaint, but upon which to make one, if in the Administrator’s judgment, the facts thus
discovered should justify doing so.” Id at 201 [Emphasis and material in brackets added.] First comes the factual basis and
then comes the lawsuit. See also, op cit ftnots 27 and 28.
If the court is correct in this regard, even though an employee is invited to file an action on his or her own behalf and also as a
representative, the intent is that the plaintiff, like any other plaintiff, already have facts which support the plaintiff’s own claim
as well as his or her claim that he or she is in fact suing as a representative of others similarly, situated such as conversations
with others similarly situated and working for the same employer, or having worked at several locations of the employer where
the same violative pay policies were being implemented, or handbook or printed policy statements with respect to the practice
in question, etc. It is not and was not the legislative intent in passing the code section in issue that an action be filed and then
used as a vehicle as a “proxy” for the Attorney General to become an investigator into possible violations or to put a burden on
a defendant to establish that the speculative acts in issue have not been occurring. This interpretation is in complete accord with
long-existing case law governing “representative lawsuits,” not to be confused with class actions, even though both class and
representative actions are governed by CCP section 382. Even in entirely different contexts, when one purports to file suit in a
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representative capacity, he or she is and always has been required to plead an ascertainable class and “ a well defined community
interest” with the employee as to the “issues of law and fact affecting the parties.”
Even though our California Supreme Court held in Arias v. Superior Court (2009) 46 Cal.4th 969 that a plaintiff need not meet
the procedural reedquirements of a class action (such as giving notice to members of a class) and need not file the case
as a class action in order to bring suit under PAGA it at no time held or even suggested that such plaintiffs need not meet the
historical requirements and prerequisites of a proper representative action.
To the contrary, in that decision the court reaffirmed that a representative action exists separate and apart from a class action
and has its own requirements. At page 977 ftnt. 2 the court stated: “In a “representative action,” the plaintiff seeks recover on
behalf of other persons. There are two types of representativererpresentative actions: those that are brought as class 3 actions
and those that are not.”4
*10 So stating, it reaffirmed its prior decision in Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 in which it
asserted that if it can be shown in a representative case ( there it was an action brought by a former tenant on behalf of himself
and other existing and former tenants against a landlord that required a specific unlawful lease provision and related unlawful
payments from all of its tenants) “that the action is not one brought by a competent plaintiff for the benefit of injured parties,
the court may decline to entertain the action as a representative suit.” [Emphasis added.]
In Market Lofts Community Association v. 9th Street Market Lofts (2014) 222 Cal. App.4th 924, 931, decided after the Arias
case, our Second District Court of Appeal elaborated on the particular requirements for a “representative action,” holding that
certain fundamental showings still must be made before a “representative action” can proceed.:
“The two requirements that must be satisfied for a representative action are an ascertainable class and a
well-defined community of interest in the questions of law and fact involved affecting the parties to be
represented.”
Also, Raven’s Cove Townhomes, Inc. V. Knuppe Development Company (1981)114 Cal. App.3d 783.
The question then is, if the plaintiff is not in a position to or fails to allege facts that demonstrate that the acts complained of
are taking place in other work locations of the employer or in connection with employees 5 who are not employed in the same
or similar job as the plaintiff or still others who are but in remote locations, can he or she be allowed to proceed past the
Complaint stage based on just such a generalized unsupported) “representative” pleading, planning to later use the civil
discovery process to try and develop a basis, lacking at the time of filing, to support such a “representative” status? The answer
is or should be “no.”
A plaintiff in a PAGA action must plead facts sufficient, if true, to establish that there are or were employees, who, like him or
herself, constituted an identifiable group and he or she must do so in good faith and with probable cause for the allegations.
These general requirements of representative actions are further clarified by the court in Weaver v. Pasadena (1948) 32 Cal.2d
833 which sets forth the historical standards of such actions under CCP 382 existing before class actions were even established
under that section. In that case, it was held that a proposed plaintiff could not purport to represent all those who stood in line
for a stadium event only to have ticket sales precipitously closed because even if it was established that it was wrongful to close
the ticket window, the action was still “fact driven” with too many invididual case- by- case person- by -person factual issues
and variants involved for any group- right of recovery to be established.
This decision was in accord with the earlier appellate court decision in Fallon v. Superior Court (1939) 33 Cal. App.2d 48, 50
where that court summed up and stated the key element in “representative actions,” (based on the doctrine of “virtual
representation”) as follows:
“Section 382 of the Code of Civi Procedure permits an action to be brought by one or more partiesd on behalf o others when
the parties are numerous. This is a statutory provision based upon the common law theory of convenience to the parties when
one or more fairly represents the rights of others similarly situated who could be designated in the controversy.” [Emphasis
added.]
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*11 That is the key factor now missing in many PAGA actions. There are no facts alleged which show or tend to show that all
those that the PAGA plaintiff seeks to represent are at all similarly situated in terms of their factual situations, their job
specifications, locations, local management, etc. The readily identifiable specific group of tenants represented in the Kraus
action were each subject to the inclusion of the same language in their leases by the same landlord that subjected each of them
to the same illegal charges. Their factual circumstances in all material respects were the same and the violatioin in issue was
readily identifiable and specific to each of them. That is not the case with the usual PAGA case.
In this court’s opinion, the “similarly situated” standard is the easiest and most workable “shorthand” for evaluating the
sufficiency of PAGA “representative” pleadings, with due deference to the other required characteristics historically required
of representative actions, and, looking to this case law and the concept of “similarly situated,” it seems tentatively the case that
plaintiff in this case has failed to meet “representative” pleading standards.
Vi. WHAT MUST BE PLED
Generally speaking, a court’s job is to attempt to ascertain the proper principles of law and then to apply them looking to
precedent, legislative history case law and other similar sources for guidance when the applicable law is unclear. However,
with regard to the following language from Labor Code section 2699.3 in this court’s view, the bottom line is that there is no
clear outside source for guidance. There is no precedent; and it is up to the courts themselves to fashion the law and standards
that are to apply in terms of pleading requirements for PAGA plaintiffs, guided only by common sense, analogous reasoning ,
general case law such as that governing representative actions as discussed above, and the language of section 2699.3.
Section 2699.3 (1) states that in the employee’s administrative claim the employed must allege, “the specific provisions of this
code alleged to have been violated, including the facts and theories to support the alleged violation.”6 It also states that “the
aggrieved employee …shall give written notice by certified mail to the Labor and Workforce Development Agency and the
employer of the specific provisions of this code, etc.” Apparently there has been case law developing over what must be
included in the notice to the employer. To this court, that is or should not be an issue. On its face, this Code section as this court
reads it clearly states and stands for the proposition that the same notice is to be given to the Labor and Workforce Development
Agency and the employer which means a notice with an identical content. The language of this section does not contemplate
any disparity in content. It speaks of only one notice “to be sent” to both the agency and the employer, Were it to be an issue,
this court would further be of the view that the notice required is to go out to both contemplated recipients on or about the same
time.
As to the content of the administrative claim (and notice), this Code section provides for three elements to be satisfied. The
first is that there must be a statement of the Code sections in issue. The second calls for a statement of the facts; and the third
requires a statement of the employee’s “theories” which presumably means a statement tying in the alleged facts to the statutes
and explaining why, on those facts, a violation of the statutes in issue should be found.
*12 How then should these claim requirements correlate to what the plaintiff should be required to provide in his or her civil
complaint? This court is of the view that all three of these same elements must appear.
We can start off with the general pleading proposition that when one is pleading a right to recovery based upon a violation of
a statute, the statute in issue must be specifically identified and is, generally speaking, to be set forth in the caption of the cause
of action which is based on that statutory violation, followed by a setting forth in the following paragraphs exactly what these
claim forms call for, the facts supporting the claim of the statutory violation plus the theory of relief. In PAGA cases since a
particular act, such as a failure to pay overtime, might constitute a violation of more than one statute, several statutes might be
alleged in the caption but with the facts stated below sufficient to support those claimed violations.
As to what facts must be alleged, in some areas of the law, a pleading in the “language of the statute” is found to be sufficient,
in others, such as fraud, a pleading must set forth “facts with particularity,” meaning considerably more is required than just
reciting the language of the civil code defining a fraud, and in still other types of actions, other degrees of particularity are
required; for example, in pleading a breach of a written contract, the contract must be attached or the material language set
forth virtually verbatim.
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In the PAGA area, this court finds that the claim filed with the Labor and Workforce Development Agency copied to the
employer are prerequisites to suit. Therefore, the fact of the filing of the claim as well as the serving of the claim on the
employer and the date must be alleged and a copy of the claim attached demonstrating the date of filing and serving. Since
these actions are by law a prerequisite to filing suit, he court also finds that courts ought to require, and this court does require,
that the“claim” document be attached to the plaintiff’s Complaint.
Courts are overloaded with litigation, and, in this court’s view, if a party cannot show that they have complied with the
prerequisites for the filing of their lawsuit, it needs to be obvious “up front.” There is no point in having time and procedural
and discovery costs brought into play if the plaintiff simply cannot show facts demonstrating that at the very least he has
complied with these prerequistes and can properly come to court to assert a cause of action. This court finds that the use of
conclusory language such as that “plaintiff has complied with all of the requirements of Labor Code section 2699.3” is not
enough. The burden on the plaintiff to attach the document in question is de minimis whereas the burden on the defendant to
show the absence of a claim or the inadequacy or lack of timeliness of an administrative claim by making a summary judgment
motion and attaching the defense copy of the claim-- perhaps even after the plaintiff has subjected the defense to costly
discovery during the interim between the filing and the motion because of the over 75-day delay incident to such motions-- can
be substantial. The burden placed on the court by requiring the second scenario is also uncalled for. Common sense dictates
that the “administrative claim” needs to be attached to the Complaint, and allegations included in the Complaint as to the
certified mailing of that claim to the employer (or a copy of the proof of mailing attached). 78
*13 As to content of both this claim and the Complaint itself, this court finds that a pleading that simply recites “in the language
of the statute” that, for example, the “defendant was not paid his proper wages in violation of x statute” is not enough. On its
face, Labor Code section 2699.3 requires the pleading of the specific provisions of the code that apply. If such an allegation
was all that is required, the framers could have stopped here. But they did not. This code provision specifically goes on to
require two other elements, “facts” and theories. Since it is is never presumed that any language in a statute is superfluous, it
must be the intent of this statute as derived from the requirements on its face that such a pleading of “ultimate facts, “ i.e.,
conclusory allegations in the language of the statute is not enough Therefore, this requirement to separately plead facts and
again to separately plead theories means that specific facts must be pled. The question then is, how detailed must such an
evidentiary factual pleading be?
It is never required that a plaintiff plead every single evidentiary fact in support of his or her complaint, but this court finds that
a PAGA Complaint must be “pled with particularity,” much like a fraud Complaint. There must be sufficient facts pled to
demonstrate the employee-plaintff’s own situation, for example, who the plaintiff’s employer was, what the employee’s
employment was, what he or she was employed to do, what was his or her position, whether he or she had an hourly employee
or was another type of employee, where he or she was employed, along with the terms of the employment, the time period
when the matters complained of allegedly occurred --“on or about” x date or y date or from “on or about x date to y date, “ on
a “daily basis,” a “regular basis,” “from time to time,” during “x period” (if no specific dates are available), etc.
The plaintiff must also plead what the facts were surrounding the labor violation of which he or she complains, for example, in
this case, once all of the extraneous material is set aside, it appears that the plaintiff- we are not told on how many occasions
or with what frequency-- claims that he had too much work to do as a dishwasher and/or server in a food establishment and
because of that “on his own” he chose not to take some meal breaks and rest breaks and did not “clock out” when he was
entitled to (we do not know how often any of this occurred or, even approximately, how often ) and believes the employer
should be held liable. In this court’s view, this pleading still contains insufficient detail, but it is a detail that can be overlooked
in light of the larger problems posed.
The employee must also allege facts in support of his “representative” claims, as noted above, that show that he is a proper
“representative” for a particular identifiable group of others SIMILARLY SITUATED with the same interest in the legal issue
involved-which, under the case law noted above does not mean a group with highly particularized factual issues and
circumstances which would interfere with them being categorized as a proper class or group for a representative action.
In this case, that might mean pleading allegations of exchanges of information with other dishwashers and/or servers in his
Irvine location who were also missing or choosing not to take their meal and rest breaks because of a too heavy workload, etc.
As noted above, this does not mean that all actions can only be local actions limited to the same workplace as the plaintiff, but
if a plaintiff seeks to expand that scope, he or she must have facts, not just suspicions, because plaintiffs in these actions are
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not empowered to perform an investigatory role. Plaintiff must have probable cause, which means the ability to produce
facts, not just generalized beliefs which have led to suspicions as to other group members and their “identity” of situation and
of issues, in order to be allowed to proceed as a group representative.
Finally, once such facts are set forth as required by the Labor Code, a PAGA plaintiff must allege his or her theory of relief.
For example, in our case, the theory appears to be that an employer is liable under some labor code section if they provide so
much work that an employee determines that they cannot do their job in their designated working hours and at the same time
avail themselves of their rights to rest breaks and meals.
*14 For all of these reasons, this court’s tentative view is that the SAC does not provide what a representative pleading requires.
This “tentative ruling” is intended to give the parties the substance of what is to be discussed and considered at the hearing and
the issues and case law that plaintiff will need to address. It expresses tentative views. If they do not change, the court will still
consider a leave to further amend if the plaintiff has more facts to allege or if the court has not understood the gravamen of his
action.
V. DISCOVERY ISSUES
The recent case of Williams v. Superior Court (2015) 236 Cal. App.4th 1151 out of our Second District Court of Appeal
addresses discovery issues in a PAGA action and holds that a trial court may allow only limited discovery initially to allow a
plaintiff to “investigate” and look for facts supportive of their local employment violations subject to coming back to court to
seek more discovery — if the plaintiff successfully develops facts supporting more discovery. This court agrees with Williams
but is concerned that the court ended up entertaining the possibility of allowing discovery at some later date to allow the plaintiff
to try and find a basis for his claims of statewide representative capacity on a Complaint that failed to allege sufficient facts to
support a representative claim in the first place.
To the extent that the decision might be read to suggest that the cart (discovery) can go before the horse (an adequate
representative Complaint) such that one might ultimately be allowed to use discovery tools and options in order to try and
identify a group to represent simply by alleging that they are a representative of a group which has been subject to labor
violations (as opposed to having courts and opposing parties simply cut off PAGA suits at the pleading stage where the plaintiff
is unable to allege facts in the Complaint showing a proper representative capacity) it is troubling.
Unfortunately, the case is all about and only about discovery, and not about the need to first have a Complaint sufficient on its
face to state a cause of action before any discovery should ensue, probably because the parties never raised the issue.
Appartently, the sufficiency of the plaintiff’s pleading of a “representative claim” was never addressed before plaintiff’s ability
to proceed to discovery in this area was allowed to go forward even though from the court’s decision it appears that it was
indirectly deemed to be insufficiently supported because had it been adequately based on the facts needed, there would have
been no justification to deny the requested discovery.
The case before this court presents a “pre-Williams” scenario, in which, before discovery issues are even raised, the SAC itself
is to be tested, the sufficiency of that SAC and of plaintff’s ability to be a representative being a “prerequisite” to seeking
discovery of any kind. The setting of a hearing for this purpose “on the court’s own motion” is in keeping with the Supreme
Court’s indication that the court itself can decline to entertain an improper representative action as well as the balancing court’s
must apply in this area to insure that employee interests will be legitimately protected while at the same time saving the courts
and employer litigants from the burden of unsupported overly broad litigation,
CONCLUSION
The hearing referenced herein is set for October 30, 2015 at 9:30 a.m. Since the SAC now asserts only a PAGA claim, the court
will be considering striking the entire complaint or dismissing it for failing to state a cause of action or striking extraneous
allegations and allowing leave to amend to allege a proper represented group and/or making other orders consistent with the
above discussion. Any papers in support of or in opposition to the motion are to be filed by 10 days before the hearing date,
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any responses can be filed and served 3 days before, but no filings are required since the court will take judicial notice of all
that has been previously filed by both parties on the issues and the parties may augment only to the extent desired.
Footnotes
1
He does not claim or state at any point that he was directed by any other employee of the defendants not to take his breaks or meals.
He just states that he was “forced to do so” because the eating area was so busy. In order to try and envision a statewide group based
on this, we are to speculate as to how other employees statewide may be reacting to “overwork,” i.e., by choosing to take or not take
breaks, to speculate on whether or not other eating areas statewide are equally busy or not (which cannot be presumed) and with the
actual employer violation in this area now appearing to be that they allegedly kept the Irvine restaurant “too busy” for their staff
to handle. A purely local issue, and possibly not even a violation of any Labor Code.
2
Similar concerns and problems arose with regard to the “disability acts” where parties could also file representative actions and
where, as is the case with regard to this “Private Attorney General” litigation, attorney fees were provided for successful plaintiffs.
It is also interesting to note, as discussed by our Supreme Court in footnote 16 of the Kraus v. Trinity Management Services, Inc.
case (supra at 133) that the United States Congress declined to provide for a similar private individual right of action to assist in
enforcing the Federal Trade Commission Act, 15 U.S.C. section 45 et. seq., because of the same concern, that, “the statute might
become a source of vexatious litigation. Expertise was called for…to avoid using the statute as a vehicle for trivial or frivolous
claims….There was also a need to develop a central and coherent body of prcedent, construing and applying the statute in a wide
range of factual contests ….Congress also foresaw that private enforcement actions could impose unwarranted burdens on
defendants….The consequences would burden not only the defendants selected but also the judicial system.”
3
It is interesting that this decision makes reference to a “court” declining to entertain an action as opposed to a party making a motion
for relief which would seem to suggest support, albeit indirect support, for a court under CCP 436/438 to set its own motion to act
on what appear to be either inadequate or frivolous “representative” suits.
4
It is unfortunate that the court in Arias went on to discuss what must be pled in connection with a class action and why those
requirements were not being imposed in PAGA cases but did not act to set forth what the PAGA plaintiff had to present in the course
of his or her “representative action.”
5
In PAGA Complaints, frequently the group which the plaintiff seeks to represent is described only as “all nonexempt employees,”
meaning regardless of job, location, identical or different management, etc. and often “statewide.”
6
It is interesting to note that when a claim is made of a labor code violation under Labor Code section 98 which is being pursued by
the agency, even if the absence is not necessarily fatal to their claim, employees are asked to fill ou on lengthy forms very specific
“evidentiary” facts such as what pay they were promised, when they were given a check that was not in that amount and similar
detailed facts in support of their claims.
7
Some courts may require the attachment of FEHA claims, also a prerequisite to certain types of lawsuits, and attachments of claims
filed with government agencies pursuant to the Torts Claims Act while others may not. In this court’s view, such claims should
always be required to be attached since again, either their lack of filing or a content inconsistent with or inadequate to support the
Complaint may be early on dispositive of an action brought without an adquate basis.
8
The attaching of the claim is also necessary to enable the opposing party, and the court if it comes to it, to see if the claims made to
the administrative body are the same as those presented in the Complaint, particularly as such matters may relate to issues of
exhaustion of administrative remedies.
End of Document
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