Private Attorney General Act

Post-Morgan v. Sundance, prejudice to the plaintiff is no longer a factor to be considered in determining whether a defendant waived arbitration by litigating a dispute in court.  The burden of proving waiver is no longer heavy either.  The plaintiff need only show (1) the defendant's knowledge of an existing right to compel arbitration and (2) intentional acts inconsistent with… Read More

Under special legislation, Alameda County established a separate county-wide health district.  This decision holds that the district is subject to suit under some provisions of the Labor Code and IWC wage orders (meal and rest breaks and accurate wage statements) because nothing in the enabling legislation expressly exempts the district; there are no other positive indicia of legislative intent to… Read More

Disagreeing with Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595, this decision holds that an arbitrator's award finding that the employer did not violate the Labor Code as the employee alleged in his individual wage and hour claims operates as collateral estoppel, barring the employee's PAGA claims based on the same alleged violations, for lack of standing. )… Read More

This decision holds that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 overrules the cases that followed Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 in holding that pre-dispute arbitration clauses were unenforceable to compel arbitration of the individual PAGA claim(s) of the plaintiff employee.  Viking River held that the individual plaintiff acts in part… Read More

This decision holds that an arbitration agreement in an employment contract was unconscionable and therefore unenforceable because (1) it did not explain and separately provide for waiver of the employee's right to sue in court to enforce his individual PAGA claim (as opposed to the non-waivable right to sue under PAGA for the benefit of other employees), and (2) in… Read More

An employer's arbitration clause was unconscionable and couldn't be saved by severance.  It required the employee to pay costs he would not incur in a court suit--a $250 filing fee and cost of a postponement if he requested one, neither of which could be shifted to the employer if the employee prevailed.  The clause also provided for an appeal to… Read More

Neither claim nor issue preclusion applies when the prior judgment was obtained against a person acting in a different capacity than the capacity in which he brings the second suit, at least so long as the second suit is also brought on a different right.  Here, the court applies that principle to hold that an arbitration award and judgment against… Read More

Usually, any agreement to waive the employee's right to sue under PAGA is unenforceable.  But there is an exception for collective bargaining agreements that cover construction workers, provide for wages, hours and working conditions, set forth a grievance and arbitration remedy for Labor Code violations, allow the arbitrator to award all remedies authorized by the Labor Code and clearly waive… Read More

The trial court did not abuse its discretion in denying private attorney general fees to Malibu homeowners who successfully challenged a proposed special assessment to protect a beach and nearby homes from erosion.  The trial court correctly estimated the homeowners' potential benefit from the suit as the amount of assessments they sought to avoid over the 20-year period of the… Read More

A PAGA claim is not the same cause of action as an employee's individual claim for damages for an employer's violation of wage and hour laws.  Also, the parties to the two suits are different.  Though the same employee brings both, the real party in interest in the PAGA suit is the State of California.  Accordingly, an employee may bring… Read More

Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated.  This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More

In this PAGA suit, the original plaintiff died while the suit was pending.  This decision holds that the trial court correctly denied a different employee's motion to intervene in the action in place of the deceased plaintiff because the would-be plaintiff was not an employee at the time the original plaintiff sent her complaint to the DLSE and therefore would… Read More

A PAGA suit is not a class action and need not satisfy Rule 23 requirements, including the requirement of manageability.  In light of PAGA's structure and purpose, imposing a manageability requirement in PAGA cases akin to that imposed under Rule 23(b)(3) would not constitute a reasonable response to a specific problem and would contradict California law by running afoul of… Read More

This decision rejects plaintiff's argument that the PAGA statute violates the state constitution's separation of powers clause because it supposedly allows private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.  The contention is barred by Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 which held that “PAGA… Read More

Another employee of the same defendant employer is not entitled to intervene as of right in a PAGA suit brought by a different employee of that employer in order to challenge the settlement to which the latter employee and the employer have agreed.  To intervene as of right under FRCivP 24(a)(2), a party must show (among other things) that his… Read More

The FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 and progeny) insofar as it precludes waiver of the employee's… Read More

The common law rule of exclusive concurrent jurisdiction applies to PAGA suits.  Nothing in the PAGA statutes clearly or unequivocally evince an intent to abrogate that well-established rule in PAGA suits.  Absence of an express first-filed suit requirement in the statute is insufficient to show such an intent.  Invoking the exclusive concurrent jurisdiction rule, the trial court properly stayed this… Read More

Plaintiff employee's initial complaint sought individual and class relief for Labor Code violations as well as PAGA claims for statutory penalties for the same violations.  After defendant employer moved to compel arbitration, plaintiff amended the complaint to delete the individual and class claims, leaving only the PAGA claims.  This decision holds that the amendment was effective to avoid arbitration.  Under… Read More

PAGA suits are not arbitrable. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 was not overruled by Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 or Kindred Nursing Centers Ltd. Partnership v. Clark (2017) 137 S.Ct. 1421, neither of which involved the issue that Iskanian addressed. Read More

The trial court did not abuse its discretion in finding that neither party prevailed or was entitled to an attorney fee award under the Davis-Stirling Act (Civ. Code 5975(e)) or the private attorney general statute (CCP 1021.5) in this suit by a condo owner against the condo association.  Although plaintiff obtained a preliminary injunction and prevailed in forcing the condo… Read More