Harper v. Charter Communications, LLC

Opinion

----oo0oo---- LIONEL HARPER, DANIEL SINCLAIR, No. 2:19-cv-00902 WBS DMC HASSAN TURNER, LUIS VAZQUEZ, and PEDRO ABASCAL, individually and on behalf of all others similarly situated and all ORDER RE: DEFENDANT’S MOTION aggrieved employees, TO DISMISS Plaintiffs, v. CHARTER COMMUNICATIONS, LLC, Defendant.

----oo0oo---- Plaintiffs Lionel Harper, Daniel Sinclair, Hassan Turner, Luis Vazquez, and Pedro Abascal (“plaintiffs”) brought this putative class action against their former employer, Charter Communications, alleging various violations of the California Labor Code. Among other things, plaintiffs allege that Charter misclassified them and other California employees as “outside salespersons,” and consequently failed to pay them overtime wages, failed to provide meal periods or rest breaks (or premium wages in lieu thereof), and provided inaccurate wage statements. (See generally Second Amended Complaint (“SAC”) (Docket No. 147).) Charter now moves to dismiss (1) Count Five of plaintiffs’ second amended complaint, alleging unlawful calculation, deduction, and payment of commission wages, to the extent that it is based on alleged violations of Labor Code sections 204 and 2751; (2) Count Nine of the complaint, alleging violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq., in its entirety; and (3) Count Ten of the complaint, alleging violation of California’s Private Attorney General Act (“PAGA”), Cal. Lab. Code §§ 2698 et seq., in its entirety. (See Mot. to Dismiss (Docket No. 163).) I. Facts & Procedural History Much of this case’s factual and procedural background is set forth in the court’s accompanying Order addressing plaintiffs’ Motion to Modify the Scheduling Order and for Leave to File a Third Amended Complaint. Accordingly, the court will not repeat it here except where relevant to the instant motion. Plaintiffs worked for Charter in California, either as Account Executives or as Direct Sales Representatives, for varying periods from January 2015 until March 2020. (SAC at ¶¶ 5-9.) Lionel Harper, the initial plaintiff in this action, worked for Charter until March 2018. (Id. at ¶ 5.) On September 14, 2018, after his employment had ended, Harper filed a notice with California’s Labor and Workforce Development Agency (“LWDA”) (the “Notice”), sending a copy to Charter, to notify them of Charter’s alleged violations of the Labor Code. (See SAC, Ex. 2 (“Notice”) at 1.1) In the Notice, Harper identified himself as “a former employee of Charter Communications, LLC,” specified that he sent the letter “on behalf of [himself] and all aggrieved employees,” and noted that he intended to bring a civil PAGA action absent notice from the LWDA that it intended to investigate the alleged violations. (See id. at 1-2.) Following an arbitration through JAMS, and after Harper did not receive notice from the LWDA that it intended to investigate, on May 3, 2019 he filed a complaint against Charter in Shasta County Superior Court (1) alleging the same Labor Code violations, on behalf of himself and all similarly situated individuals; (2) alleging violation of the UCL; and (3) bringing a representative PAGA action seeking civil penalties for the alleged Labor Code violations. (See Docket No. 1-1.) Charter removed the case to this court on May 17, 2019. (See Docket No. 1.) Harper subsequently amended his complaint twice, to add plaintiffs Sinclair, Turner, Vazquez, and Abascal, on December 13, 2019 and June 4, 2021. (See Docket Nos. 45, 147.) He also subsequently submitted three amended notices to the LWDA, to reference the other plaintiffs and to add additional detail, on September 9, 2020, June 11, 2021, and July 15, 2021. (SAC, Ex. 1 (Docket No. 147); Opp. to Mot. to Dismiss, Exs. 1 & 1 Plaintiffs’ second amended complaint marks this notice as “Exhibit 1,” though it is the second exhibit included in the complaint. For purposes of this order, the court refers to 22 (Docket No. 170-2).) II. Analysis Federal Rule of Civil Procedure 12(b)(6) allows for dismissal when the plaintiff’s complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The inquiry before the court is whether, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff’s favor, the complaint has stated “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Although legal conclusions “can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. A. Counts Five (Commission Payments) and Nine (UCL) In light of the court’s accompanying Order Re: Defendant’s Motions to Compel Arbitration, the court will deny Charter’s motion to dismiss Count Five of the Second Amended Complaint in part and Count Nine in its entirety as moot, without prejudice, as to plaintiffs Harper, Turner, Vazquez, and Abascal. Further, because the court has stayed resolution of those claims 2 Plaintiffs’ opposition to the instant motion likewise labels multiple exhibits as “Exhibit 1.” The court refers to them in the same manner as noted in the previous footnote. pending arbitration, (see id.), the court will also deny the same portions of Charter’s motion to dismiss as moot, without prejudice, as to plaintiff Sinclair. Because only the resolution of plaintiff Harper’s PAGA claim has not been stayed, in this order the court will only substantively address Charter’s motion to dismiss Count Ten of the complaint. B. Count Ten (PAGA) Charter seeks to dismiss plaintiff Harper’s PAGA claim in its entirety, contending that because of various alleged deficiencies in Harper’s initial notice to the LWDA, he has failed to satisfy PAGA’s administrative exhaustion requirement. (See Mot. to Dismiss at 12-22 (Docket No. 163).) In particular, Charter argues that the Notice was fatally deficient for purposes of the PAGA claim because the Notice (1) failed to identify the “aggrieved employees” on whose behalf Harper sought to bring a representative PAGA action, (2) failed to set forth sufficient “facts and theories” to provide the LWDA an adequate basis for deciding whether to investigate the alleged violations and to provide Charter an adequate basis for deciding whether and how vigorously to defend itself, and (3) omitted certain theories under which Harper alleges Labor Code violations under his PAGA claim; and because (4) the amended notices Harper subsequently submitted to the LWDA cannot suffice to cure these deficiencies because they were submitted after PAGA’s statute of limitations had run and after this litigation had commenced. (See id.) 1. PAGA Background and Requirements PAGA was enacted to remedy systemic underenforcement of worker protections. Williams v. Super. Ct., 3 Cal. 5th 531, 545 (2017). To achieve this goal, PAGA allows an employee to bring a civil action against an employer for violations of the Labor Code. See Cal. Lab. Code § 2699(a). “First, however, the employee must give ‘written notice . . . to the [LWDA] and the employer of the specific provisions . . . alleged to have been violated, including the facts and theories to support the alleged violation.’” Alcantar v. Hobart Serv., 800 F.3d 1047, 1056 (9th Cir. 2015) (quoting Cal. Lab. Code § 2699.3(a)(1)); see Arias v. Super. Ct., 46 Cal. 4th 969, 981 (2009) (same). Then, if the LWDA notifies the employee and employer within 60 days that it intends to investigate the alleged violation(s), or if no notice is provided within 65 days, the employee may bring suit. Cal. Lab. Code § 2699.3(a)(2)(A). PAGA’s notice requirement was implemented to “allow[ ] the [LWDA] to act first on more serious violations such as wage and hour violations and give employers an opportunity to cure less ‘serious’ violations.” Dunlap v. Super. Ct., 142 Cal. App. 4th 330, 338-39 (2d Dist. 2006) (quoting Cal. S. Rules Comm., Off. of S. Floor Analyses, Bill Analysis for SB1809, at 5-6 (Aug. 27, 2004)); see also Alcantar, 800 F.3d at 1057 (notice requirement exists “to allow the [LWDA] to intelligently assess the seriousness of the alleged violations” and “permit the employer to determine what policies or practices are being complained of so as to know whether to fold or fight”); Williams, 3 Cal. 5th at 545-46 (purpose of LWDA notice requirement “is to afford . . . the LWDA[ ] the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations”). To effectuate these goals, courts adjudicating PAGA claims require that plaintiffs serving as PAGA representatives have “compl[ied] with the statute’s notice requirements” before bringing suit. See Alcantar, 800 F.3d at 1056; Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 834-36 (2d Dist. 2018); Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 808-810 (2d Dist. 2018). “Considering the remedial nature of legislation meant to protect employees,” however, in evaluating compliance courts “construe PAGA’s provisions broadly, in favor of this protection.” Kim v. Reins Int’l Cal., Inc., 9 Cal. 5th 73, 83 (2020). 2. Amendments and Operative Notice Plaintiffs argue that, to the extent the Notice might have insufficiently described the “facts and theories” Harper alleges in his PAGA claim, those inadequacies have been cured by subsequently filed amended LWDA notices. (See Opp. to Mot. to Dismiss at 37-38 (Docket No. 170).) However, as the court explained in its accompanying Order addressing plaintiffs’ Motion for Leave to File a Third Amended Complaint, amended LWDA notices filed after PAGA’s statute of limitations has run and after a civil PAGA action has commenced cannot support that PAGA claim. Accordingly, in evaluating whether PAGA’s notice requirements have been satisfied in order to decide the instant motion, the court will look to the original notice. 3. Identification of Aggrieved Employees In moving to dismiss plaintiff Harper’s PAGA claim, Charter first argues that the Notice was inadequate to satisfy PAGA’s prerequisites to suit because it did not specify who the “aggrieved employees” Harper sought to represent were. (Mot. to Dismiss at 8 (Docket No. 163).) Although PAGA’s “facts and theories” provision does not reference employees other than the one who submits a notice to the LWDA and subsequently brings a civil action, see Cal. Lab. Code § 2699.3(a)(1)(A), PAGA defines “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed,” id. at § 2699(c). Courts interpreting PAGA’s notice provisions have also read into them a requirement that the other employees whom the primary employee seeks to represent be sufficiently identified. See, e.g., Brown, 28 Cal. App. 5th at 836 n.5; Briggs v. OS Rest. Servs., LLC, LA CV18-08457 JAK (AFMx), 2020 WL 6260001, at *8 (C.D. Cal. Aug. 26, 2020). In Brown, the operative LWDA notice identified the plaintiff as an “hourly-paid security guard,” but referred to the employees whom she sought to represent simply as “aggrieved employees.” 28 Cal. App. 5th at 830. In light of the various statutory violations alleged in the notice, however, which was two pages long, the California Court of Appeal was able to “infer . . . that the other ‘aggrieved employees’ [we]re non-exempted, hourly-paid workers employed by defendants and against whom defendants committed the alleged Labor Code Violations.” Id. at 830, 836 n.5. On this basis, the court “conclude[d that] the . . . Notice sufficiently identified the other aggrieved employees.” Id. at 836 n.5. By contrast, in Briggs, upon which Charter relies, (see Def.’s Reply at 13 (Docket No. 187)), the notice “fail[ed] to provide any specific factual allegations to support any of Plaintiff[’]s claims under the Labor Code,” including identifying the aggrieved employees the plaintiff sought to represent. 2020 WL 6260001, at *8. Instead, it referred only to “other former and current employees.” Id. at *6. The Briggs court compared this situation to that in a prior case, wherein the notice had identified the aggrieved employees as “all other similarly situated current and former non-exempt hourly employees of Sunrise Senior Living Management during the four years preceding the date of this notice,” which the court had deemed adequate, and determined that the Briggs plaintiff’s notice was insufficient. Id. at *8 (citing Shiferaw v. Sunrise Senior Living Mgmt., Inc., 2:13-cv-02171-JAK-PLAx, 2016 WL 6571270, at *19 (C.D. Cal. Mar. 21, 2016)). Here, Harper’s notice is readily distinguishable from the one in Briggs.3 Through his PAGA claim, Harper “seek[s] to recover civil penalties . . . on behalf of the State of California, Plaintiffs, and all outside salespersons and commission-eligible employees in California . . . who were aggrieved . . . during the relevant PAGA period.” (SAC at ¶ 98 3 Further, to the extent that the approaches taken by the courts in Briggs and Brown differ, this court will adopt the approach taken in Brown, which appears to be the most relevant decision from a California court of appeal interpreting this requirement. See McSherry v. Block, 880 F.2d 1049, 1052, 1052 n.2 (9th Cir. 1989) (state appellate courts’ interpretations of state statutes entitled to deference by federal courts except where in conflict with higher state courts or where the federal court is “convinced that the highest court of the state would decide to construe the statute otherwise”) (quoting West v. Am. (Docket No. 147).) This is plainly more specific than the “other former and current employees” referenced in the Briggs notice. Further, although the Notice does not directly define “aggrieved employees” as including “commission-eligible employees,” it nonetheless alleges that “[Charter] recruits and incentivize[s] sales employees like [Harper] by emphasizing their ability to earn commissions” and goes on to allege numerous commission-related violations committed against them. (See Notice at 4 (Docket No. 147).) This language readily lends itself to the inference that “aggrieved employees” here includes employees occupying sales roles who were paid -- or who were eligible to be paid -- commissions. See Brown, 28 Cal. App. 5th at 836 n.5. Likewise, although the Notice does not include plaintiffs’ allegation that many of the claimed violations were due to Charter’s alleged misclassification of them as outside salespersons, as Charter observes, (see Mot. to Dismiss at 1, 16 (Docket No. 163)), it repeatedly refers to “nonexempt employees like [Harper].” (E.g., Notice at 3 (Docket No. 147).) The complaint’s basic contention as to this group of employees is that they, like the named plaintiffs, were “misclassified as exempt,” i.e., exempt from Labor Code requirements the violation of which the complaint alleges. (See SAC at ¶¶ 13-15 (Docket No. 147).) Although somewhat less strong than the inference regarding commission-eligible employees, a similar inference may also be drawn from the Notice as to employees referenced in the complaint who were allegedly misclassified. Accordingly, the court concludes that the Notice adequately identifies the “aggrieved employees.” In its reply, Charter also argues that, because the portion of the Notice alleging violation of Labor Code sections 226, 432, and 1198.5 does not specify that employees other than Harper experienced such violations, the Notice failed to advise the LWDA that he sought to challenge these violations on a representative basis, precluding him from doing so here. (See Def.’s Reply at 12 (Docket No. 187).) In support of this argument, Charter relies on Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804 (2d Dist. 2018). There, the California Court of Appeal held that because the plaintiff’s notice specified that it only advised the LWDA of his own claims against his employer, making no reference whatsoever to any other current or former employees, it failed to indicate that he sought to bring a representative action, which is the only type of action that may be brought under PAGA. See id. at 809-10, 810 n.1. Charter argues that under Khan, Harper may not challenge alleged violations of sections 226, 432, or 1198.5 because the relevant portion of the Notice did not reference other employees. However, the Notice here is quite different than the one in Khan. Whereas in Khan, the plaintiff made clear that his notice did not challenge any violations on behalf of other employees, see id. at 807 (observing that the notice stated that it “shall constitute written notice . . . of my claims against my former employer,” and that the plaintiff “admitted that his notice . . . ‘does not reference any other current or former employee besides [him]’”), here the Notice states at its outset, “[O]n behalf of Employee and all aggrieved employees, this letter gives written notice to the [LWDA] and to [Charter] of serious and ongoing violations of the California Labor Code,” (Notice at 1 (Docket No. 147)). Accordingly, the Notice makes clear that Harper sought to challenge the violations alleged therein on a representative basis, notwithstanding the fact that one portion of the Notice does not specify this. Indeed, in Khan, the court examined two prior cases, one in which a plaintiff’s notice “referred to ‘employees’ and employees’ ‘wage statements,’” and another in which the notice “advised the agency that counsel represented [the plaintiff] ‘in a potential class action,’” and observed that those notices had “sufficiently suggested claims on multiple employees.” See Khan, 19 Cal. App. 5th at 809-10 (quoting York v. Starbucks Corp., CV-08-07919 GAF (PJWx), 2012 WL 10890355, at *4 (C.D. Cal. Nov. 1, 2012); Gonzalez v. Millard Mall Servs., Inc., 09-cv-2076-AJB(WVG), 2012 WL 3629056, at *3 (S.D. Cal. Aug. 21, 2012)). Here, because the Notice’s references to other employees are even more prevalent, it sufficiently suggested that Harper sought to pursue a representative claim as to all alleged Labor Code violations, including sections 226, 432, and 1198.5. See Mays v. Wal-Mart Stores, Inc., 354 F. Supp. 3d 1136, 1148-49 (C.D. Cal. 2019) (despite fact that notice’s allegations of one violation only referenced plaintiff, fact that notice’s opening language stated intent to represent “all impacted employees” “sufficiently suggested claims on behalf of aggrieved employees” for purposes of that violation, distinguishing Khan). 4. Sufficiency of Facts and Theories in Notice In its motion, Charter also argues that the Notice does not set forth sufficient “facts and theories,” as the term is used in the PAGA statute, to have adequately informed the LWDA or Charter of the alleged violations. (See Mot. to Dismiss at 16-21 (Docket No. 163).) Specifically, it argues that the Notice is inadequate because it fails to reference plaintiffs’ allegation that they were misclassified. (See id. at 16.) It also contends that many of the Notice’s allegations merely recite the requirements of the relevant Labor Code provisions and assert that Charter did not comply with them, and argues that consequently, the Notice does not satisfy PAGA’s administrative exhaustion requirement, requiring dismissal of Harper’s PAGA claim. (See id. at 16-21.) For support, Charter cites Alcantar, 800 F.3d 1047. There, the plaintiff’s notice, in its entirety, read as follows: Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the extra compensation required by California Labor Code section 1194 in the regular rate of pay when computing overtime compensation, thereby failing to pay Plaintiff and those who earned additional compensation for all overtime wages due; (4) failed to provide accurate wage statements to employees as required by California Labor Code section 226; (5) failed to provide reimbursement for work related expenses as required by Labor Code § 2802; and, (6) failed to provide off- duty meal periods and to pay compensation for work without off-duty meal periods to its California employees in violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section as set forth in California Labor Code section 2699.5. Id. at 1057 (alterations in original). As the Ninth Circuit observed, “The only facts or theories that could be read into this letter are those implied by the claimed violations of specific sections of the California Labor Code—that [defendant] failed to pay wages for time worked, failed to pay overtime wages for overtime worked, failed to include the extra compensation required by § 1194 in the regular rate of pay when computing overtime compensation, and so on.” See id. Accordingly, it held that the notice -- “a string of legal conclusions with no factual allegations or theories of liability to support them” -- was “insufficient to allow the [LWDA] to intelligently assess the seriousness of the alleged violations.” See id. Since Alcantar, the California Supreme Court has also spoken to the degree of detail that an LWDA notice must include. In Williams, it stated that “[n]othing in . . . section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and theories’ provided in support of ‘alleged’ violations must satisfy a particular threshold of weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing.” Williams, 3 Cal. 5th at 545. In Brown, the California Court of Appeal interpreted these decisions in the course of evaluating the sufficiency of an LWDA notice. It observed that, under Alcantar’s reasoning, “the notice provision requires something more than bare allegations of a Labor Code violation.” Brown, 28 Cal. App. 5th at 836 (citing Alcantar, 800 F.3d at 1057). However, it nonetheless took a somewhat permissive approach. For example, where the notice, in alleging that the defendant failed to maintain accurate or complete wage statements under Labor Code section 226, alleged a “failure to include the [employer’s] name and address” on those statements, the court held that “[t]his minimal fact supports the alleged violation, making the . . . Notice adequate.” See id. at 838. Nevertheless, the court deemed the notice deficient as to other claims, where, for example, the plaintiff simply alleged that “she and other aggrieved employees ‘did not take all meal and rest periods and were not properly compensated for missed meal and rest periods’ in violation of [Labor Code] sections 226.7 and 512.” See id. at 837. Brown thus most clearly illustrates the standard to be applied in evaluating the sufficiency of an LWDA notice: Where an allegation in an LWDA notice simply recites Labor Code requirements and asserts that the defendant failed to adhere to them, those allegations are typically insufficient to support a PAGA claim as to those violations. See id. at 836-38; Alcantar, 800 F.3d at 1057; Briggs, 2020 WL 6260001, at *7; Mays, 354 F. Supp. 3d at 1147. On the other hand, where an allegation includes even “minimal fact[s]” beyond that, it is generally sufficient to support an associated PAGA claim. See Brown, 28 Cal. App. 5th at 838; Bowen v. Target Corp., EDCV 16-2587 JGB (MRWx), 2020 WL 1931278, at *4-5 (C.D. Cal. Jan. 24, 2020) (notice need not “lay out an intricate factual basis for [an employee’s] claims” or include “extensive specificity,” but rather is sufficient if it “does more than merely recite a ‘string of legal conclusions’”) (quoting Alcantar, 800 F.3d at 1056); Mays, 354 F. Supp. 3d at 1147 (notice “‘is sufficient’ . . . if ‘it contains some basic facts about the violations’”) (quoting Green v. Bank of Am., N.A., 634 F. App’x 188, 190 (9th Cir. 2015)); see also Kim, 9 Cal. 5th at 83 (courts are to “construe PAGA’s provisions broadly, in favor of [employee] protection”). Further, this court agrees with Judge Birotte in the Central District of California that, where a complaint puts forward multiple theories of recovery under a single section of the Labor Code, the notice need not describe each and every one, see Mays, 354 F. Supp. 3d at 1148, so long as it adequately advises the LWDA of the scope of the alleged violations under that section, see Williams, 3 Cal. 5th at 545-46. a. Misclassification Allegations At the outset, Charter argues that because plaintiffs’ overarching basis for their allegations is that Charter misclassified them as exempt -- which Charter terms their “central, indispensable theory” -- the Notice, in light of PAGA’s “facts and theories” requirement, cannot support Harper’s PAGA claim as to any alleged violation because it omits this detail. (See Mot. to Dismiss at 16 (emphasis omitted) (Docket No. 163).)4 As precedent makes clear, however, this argument is unavailing. Although aggrieved employees are required to at least include some “minimal detail[s]” in LWDA notices beyond the requirements of Labor Code provisions an employer has allegedly violated, they are not required to comprehensively explain the 4 Plaintiffs do not dispute that the Notice omits this basis of the alleged violations. See Brown, 28 Cal. App. 5th at 836-38; Bowen, 2020 WL 1931278, at *5. Nor are they required to explain how a broader practice by an employer resulted, in turn, in the individual alleged violations, so long as they provide some details about those violations. See Bowen, 2020 WL 1931278, at *4-5 (rejecting argument that plaintiff’s failure to “specifically identify the theory of her on-premises rest period claim” rendered her notice insufficient because the notice nonetheless advised the LWDA of “some of the facts and theories in her on-premises rest period claims . . . , including all violated provisions of the Labor Code”). Accordingly, so long as Harper’s notice satisfies these standards, it is sufficient even absent specific reference to misclassification.5

5 Charter contends that, “as other courts have held,” Harper was “required” to include reference to misclassification in the Notice. (See Def.’s Reply at 13-14 (Docket No. 187).) However, the decisions Charter cites in support of this contention have not, in fact, so held. Sinohui, the only one that dismissed a PAGA claim, did so specifically because the notice “assert[ed] no facts to support the alleged violations,” which failed to distinguish it from the notice in Alcantar. See Sinohui v. CED Ent., Inc., EDCV 14-2516-JLS (KKx), 2016 WL 3406383, at *3-4 (C.D. Cal. June 14, 2016). In fact, because of this deficiency, the court expressly declined to reach arguments the defendant had made about misclassification. See id. at *4. Conde, which upheld a PAGA claim where the notice included the plaintiff’s allegation that she had been misclassified, did so because this allegation represented one of the few details of any kind the notice included beyond listing statutory requirements, distinguishing it from Alcantar; although Conde found this detail sufficient, nowhere did it indicate that it was necessary. See Conde v. Open Door Mktg., LLC, 223 F. Supp. 3d 949, 971-72 (N.D. Cal. 2017). In Stevens, where the plaintiff likewise alleged misclassification in her notice, the court observed that this was one of many details it included, and concluded that together these were sufficient; again, the court b. Labor Code Allegations Charter also argues that most of the specific Labor Code violations alleged in the Notice do not set forth “facts and theories” sufficient to support the corresponding claims in Harper’s PAGA action, but rather simply list the relevant Labor Code requirements and assert that Charter violated them. (See Mot. to Dismiss at 16-21 (Docket No. 163).) i. Minimum and Overtime Wage Violations The Notice’s first set of allegations, alleging failure to properly calculate and pay minimum and overtime wages in violation of Labor Code sections 510, 1182.12, and 1197, summarizes those sections’ requirements: Employers must pay employees at least the applicable minimum wage for all hours worked, with specified overtime rates for hours worked beyond eight hours in a day, forty hours in a week, and so on. (See Notice at 2 (Docket No. 147).) It then states, in part: “Defendant regularly required employees during training to work a full day and then complete homework after the work day ended. The training and homework combined required employees to work more than 8 hours in a day, but Defendant did not keep track of

Stevens v. Datascan Field Servs. LLC, 2:15-cv-00839-TLN-AC, 2016 WL 627362, at *4 (E.D. Cal. Feb. 17, 2016). Finally, Patel and Casida only discussed misclassification in the context of class actions, and neither discussed PAGA’s notice requirements, making them inapposite. See Patel v. Nike Retail Servs., Inc., 14-cv-04781-RS, 2016 WL 1241777, at *1, 4 (N.D. Cal. Mar. 29, 2016); Casida v. Sears Holdings Corp., 1:11-cv-01052 AWI JLT, 2012 WL 3260423, at *8 (E.D. Cal. Aug. 8, 2012), report and recommendation adopted, 2012 WL 3763621 (E.D. Cal. Aug. 29, 2012). Further, all of these cases predated Brown and Williams, meaning they could not or pay employees all wages for the time worked over 8 hours in a day or 40 hours in a week during training.” (Id. at 3.) It also alleges that Charter likewise failed to track hours worked outside of training weeks and consequently failed to pay employees overtime wages. (See id.) By specifying that these alleged violations occurred both during and after training periods, and that, during training periods, they were the result of Charter requiring employees to complete homework after a full day of work, the Notice does more than repeat the statutory requirements and allege violation thereof, thereby clearing the “minimal facts” threshold. See Brown, 28 Cal. App. 5th at 838. It is therefore sufficient to support Harper’s PAGA claim as to Charter’s alleged violations of Labor Code sections 510, 1182.12, and 1197. ii. Meal and Rest Break Violations In its next set of allegations, alleging failure to provide uninterrupted meal and rest breaks or pay premium wages in lieu thereof in violation of Labor Code sections 226.7 and 512(a), the Notice proceeds in a similar fashion. After summarizing the statutory requirements, it alleges, in part, that Charter “does not require or allow [Harper] and other nonexempt employees to clock-out and clock-in for each meal period and accurately record the existence and length of each meal period taken.” (Notice at 3 (Docket No. 147).) In doing so, it provides detail beyond that which is “implied by the claimed violations of specific sections of the California Labor Code,” Alcantar, 800 F.3d at 1057 -- in part because these sections make no mention of clocking in or out for meal breaks, see Cal. Lab. Code §§ 226.7, 512(a) -- and therefore is sufficient to support the PAGA claim as to these alleged violations. iii. Commission Wage Violations Next, the Notice alleges unlawful deductions of commission wages in violation of Labor Code sections 221, 223, 224, and 2751. (See Notice at 4 (Docket No. 147).) After listing the statutory requirements, the Notice goes on to allege, in part, that Charter “recruits and incentivize[s] sales employees like [Harper] by emphasizing their ability to earn commissions,” “fails to pay all amounts owed” under its allegedly “unlawful and unfair compensation terms,” and consequently “has not paid [Harper] and similarly situated employees all of the commission wages they are owed.” (Id.) Because the Notice provides additional context beyond that implied by the statutory requirements, it gave the LWDA adequate notice under PAGA, notwithstanding its failure to specify how the commission compensation terms were allegedly unlawful and unfair, as Charter argues it was required to do. (See Mot. to Dismiss at 18 (Docket No. 163).) Charter argues that the commission-related allegations are further deficient in that they do not include various specific violations of section 2751 that plaintiffs allege in the Second Amended Complaint, such as Charter’s alleged failure to give employees a fully signed copy of commission agreements or to clearly state in those agreements when commissions would be calculated, earned, and paid. (See id. at 18-19.) As noted above, however, Harper was not required to describe each and every alleged violation of a particular Labor Code section that he would ultimately include in the operative complaint, so long as the allegations were sufficient to apprise the LWDA of the scope of the violations. See Mays, 354 F. Supp. 3d at 1148; Williams, 3 Cal. 5th at 545-46. In addition to the already-noted details, this portion of the Notice also advised the LWDA that Charter allegedly “fails to perform all of its obligations under the [compensation] terms” and “relied on methods for the computation and payment of commissions that are not set forth in [those] terms.” (Notice at 4 (Docket No. 147).) While these allegations lack the detail included in some of the other commission-related allegations, together they adequately conveyed the scope of the alleged violations to the LWDA. Accordingly, this set of allegations is sufficient to support Harper’s PAGA claim as to the alleged violations of sections 221, 223, 224, and 2751. iv. Wage Statement Violations The Notice also alleges failure to maintain accurate records and wage statements in violation of Labor Code sections 226 and 1174(d). (See id. at 6.) After summarizing the statutory requirements, the Notice alleges in part that Charter “failed to keep accurate records reflecting [Harper]’s and other employees’ hours worked and when meal periods occurred” and that some wage statements “also failed to record the time worked, wages due, and inclusive dates of the applicable pay periods.” (Id.) Unlike with the previous sets of allegations, Charter does not appear to challenge the sufficiency of these allegations to support related violations alleged in Harper’s PAGA claim, but rather contends that they omit wage statement-related allegations included in the Second Amended Complaint, such that the PAGA claim must be dismissed as to those allegations. (See Mot. to Dismiss at 19-20 (Docket No. 163).) As discussed, however, Harper was not required to describe every alleged violation of each statute in the Notice. Because it appears that all of the allegations in the Second Amended Complaint that Charter here challenges arise under section 226 of the Labor Code, and because the Notice includes adequate information to apprise the LWDA of the broad scope of the violations Harper alleges under that section, the Notice is sufficient to support his PAGA claim as to those allegations. Charter also notes that some of the Second Amended Complaint’s wage statement-related allegations pertain to alleged violations that occurred more than one year before the Notice was filed. (See id. at 20.) It argues that because PAGA’s statute of limitations is one year, this provides a separate basis for dismissal of Harper’s PAGA claim to the extent that it alleges wage statement violations that occurred outside of the statutory period. (See id.) The court agrees. However, although PAGA has a one- year statute of limitations, it provides that the statute is tolled during the pendency of the LWDA notice, i.e., up to 65 days. See Cal. Lab. Code §§ 2699.3(a)(2),(d); Hill v. Genuine Parts Co., 1:18-CV-1550 AWI SAB, 2019 WL 935976, at *2 (E.D. Cal. Feb. 26, 2019). Here, because 65 days passed after Harper submitted the Notice on September 14, 2018, and the LWDA did not respond, (see SAC at ¶ 3 (Docket No. 147)), the statute of limitations was tolled for that period. Accordingly, in his PAGA claim, Harper may not challenge wage statement violations that are alleged to have occurred prior to July 11, 2017, and the court will grant Charter’s motion on that limited basis. v. Timely Payment Violations Lastly, the Notice alleges failure to timely pay wages during employment and upon termination, or to pay penalty wages for late payment of wages upon termination, in violation of Labor Code sections 201, 202, 203, and 204. (See Notice at 5 (Docket No. 147).)6 In addition to summarizing the statutory requirements, the Notice alleges, in part, that because of other previously mentioned alleged violations, such as failure to record all hours worked or pay all commission wages owed, “when [Charter] paid [Harper] and other former employees’ final paychecks, they were all miscalculated and too small,” and Charter “fail[ed] to pay all wages earned . . . at least twice monthly.” (Id.) Charter argues that these allegations are simply derivative of the alleged overtime, minimum wage, commission, and meal and rest break violations, and that because those alleged violations were insufficient, these must be as well. (See Mot. to Dismiss at 20-21 (Docket No. 163).) However, because the court has already determined that the other allegations were 6 The Notice also alleges failure to timely provide a copy of personnel records upon request in violation of Labor Code sections 226, 432, and 1198.5. (See Notice at 6-7 (Docket No. 147).) However, because Charter has not challenged the sufficiency of the Notice as to those alleged violations, (see Mot. to Dismiss (Docket No. 163)), the court will not address ene EEE I III EEN EE IEEE IRE GUIS INGE OSU INGEE IIR ESOS mE

sufficient to support Harper’s PAGA claim as to those alleged violations, Charter’s argument here must be rejected. IT IS THEREFORE ORDERED that Charter’s Motion to Dismiss Count Five of plaintiffs’ Second Amended Complaint in part and Count Nine of plaintiffs’ Second Amended Complaint in its entirety be, and the same hereby is, DENIED without prejudice to the motion being renewed in the event that the stay ordered in the accompanying Order Re: Defendant’s Motions to Compel Arbitration is lifted; IT IS FURTHER ORDERED that Charter’s Motion to Dismiss Count Ten of plaintiffs’ Second Amended Complaint, insofar as it is based on alleged violations of Labor Code Sections 226 and 1174(d) that occurred prior to July 11, 2017, be, and the same hereby is, GRANTED; AND IT IS FURTHER ORDERED that in all other respects Charter’s Motion to Dismiss Count Ten of plaintiffs’ Second Amended Complaint be, and the same hereby is, DENIED. Dated: October 12, 2021 / td . ak. 2 WILLIAMB.SHUBB □ UNITED STATES DISTRICT JUDGE 24