Private Attorney General Act

Before filing a PAGA suit, a plaintiff must send a pre-suit notice to the Labor and Workforce Development Agency and the employer describing the facts and theories to support the alleged violation. Lab. Code 2699.3.  This decision holds that while the pre-suit notice must include nonfrivolous allegations that other aggrieved employees exist, it is sufficient for the presuit notice to… Read More

Macy's 2012 employment agreement contained an arbitration clause that waived the right to bring class or collective actions and otherwise demonstrated the two-party nature of the disputes to be arbitrated.  This decision interprets the clause to require arbitration of the employee's individual PAGA claims, but not his non-individual PAGA claims.  The non-individual PAGA claims can't be dismissed, port-Adolph.  Instead, since… Read More

A district court order compelling arbitration of all of plaintiff's claims, including non-individual PAGA claims, and denying, as moot, plaintiff's request for a stay of proceedings on any non-arbitrable claims was a final decision with respect to arbitration and thus a final order appealable under 9 USC 16(a)(3). Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771 and other cases, this decision holds that an arbitration clause saying that the arbitration will proceed under AAA rules is not a sufficiently clear delegation of arbitrability to effectively delegate that issue to the arbitrator if the non-drafting party is an unsophisticated employee of the drafter.  Also, even a clearer delegation… Read More

Even if an employee signed an arbitration agreement with the employer, the employee can avoid arbitrating a PAGA claim by simply not bringing one on her own behalf.  The employee has standing to sue on PAGA claims on behalf of other employees so long as she was an employee and was subjected to at least one of the Labor Code… Read More

Defendant waived the right to compel arbitration of individual PAGA claims by plaintiff and class members.  Even if the defendant got a second chance to compel arbitration when the US Supreme Court decided Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 and 24 class members signed arbitration agreements with defendant in 2022, it waited nearly a year (and… Read More

This decision holds that Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 did not undermine McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 or Blair v. Rent-A-Center, Inc. (9th Cir. 2019) 928 F.3d 819 which held that Rent-A-Center's arbitration clause was unenforceable under McGill.  Viking River Cruises dealt with PAGA suits which are different from public injunctions. Read More

Employment, , 1, 1 Trial courts lack inherent authority to strike PAGA claims on manageability grounds.  Trial courts do not generally possess a broad inherent authority to dismiss claims.  Nor is it appropriate for trial courts to strike PAGA claims by employing class action manageability requirements.  Trial courts may use a vast variety of tools to efficiently manage PAGA claims,… Read More

The trial court correctly denied enforcement of the employer's arbitration agreement.  The arbitration agreement was procedurally unconscionable both because it was an adhesion contract in the employment context and because the way it was presented to the prospective employee for electronic signature made it difficult for her to read before signing.  The agreement was substantively unconscionable in containing a confidentiality… Read More

To obtain a private attorney general fee award, the applicant must show, among other things, that "the necessity and financial burden of private enforcement ... are such as to make the award appropriate."  Private enforcement is a "necessity" unless a public prosecutor or other government agency stands ready to enforce the right.  Here, the trial court abused its discretion in… Read More

Disagreeing with several 2d District opinions, this decision holds that the standard of review of an order granting or denying a private attorney general fee award under CCP 1021.5 is abuse of discretion even when the fee award order follows the Court of Appeal's prior opinion (published or not) in favor of the fee applicant.  Though the Court of Appeal… Read More

This decision affirms an order denying an employer's motion to compel arbitration.  The arbitration provision purported to require arbitration of all disputes, but prohibit any form of representative action.  Following Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, such a clause is unenforceable as to PAGA claims involving Labor Code violations not suffered by the individual plaintiff.  Because the… Read More

This decision reverses a summary judgment in favor of the defendant employer against the plaintiff employee nurse who sued individually and under PAGA for violation of Labor Code sections on rest and meal breaks and payment of all wages due on termination.  The employer failed to meet its burden of proving plaintiff's claims were time barred.  While she may not… Read More

Following both Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 and Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, this decision holds that the plaintiff must arbitrate PAGA claims that arise from Labor Code violations that affected him, but may pursue in court PAGA claims that arise from Labor Code violations affecting only other employees, not himself. Read More

Following its prior decision in Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56 and disagreeing with Turrietta v. Lyft, Inc. (2021) 69 Cal.App.5th 955. this decision explains that a PAGA plaintiff need not show a personal pecuniary interest to have a substantial interest at stake that suffices to support a motion for leave to intervene in an overlapping PAGA… Read More

A prior PAGA suit against the same employer did not have claim preclusive effect as to all potential PAGA suits against the employer, nor could the release in the judicially approved agreement settling the prior suit enforceably release all potential PAGA claims against the employer.  Instead, the prior plaintiff's authority to represent the state in suing under PAGA was governed… Read More

When a plaintiff has brought a PAGA action comprising individual (i.e., violations affecting the plaintiffs) and non-individual (violations affecting only other employees) claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate the non-individual claims on behalf of other employees under PAGA. Read More

The trial court did not abuse its discretion in holding that a plaintiff homeowners association was not entitled to private attorney general fees under the catalyst theory.  To prevail on that theory, the court must find that the plaintiff's lawsuit was a material factor that contributed in a significant way to the defendant's adopting a changed plan or conduct that… Read More

An employer's arbitration agreement contained a carve-out provision stating that claims under PAGA are not arbitrable under this agreement.  This decision holds that the plain language of the carve-out excludes from arbitration all PAGA claims--including those individual PAGA claims that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 are arbitrable (absent the parties' contrary agreement). Hence, the trial… Read More

The trial court did not abuse its discretion in finding that plaintiff's suit was the catalyst that at least in part caused the city to increase its land use plan's allocation of areas for low cost housing to satisfy its regional allocable share of the county's affordable housing needs.  That was true even though it took the Legislature enacting a… Read More