1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 LIONEL HARPER, DANIEL SINCLAIR, No. 2:19-cv-00902 WBS DMC HASSAN TURNER, LUIS VAZQUEZ, and 13 PEDRO ABASCAL, individually and on behalf of all others 14 similarly situated and all ORDER RE: DEFENDANT’S MOTION aggrieved employees, TO DISMISS 15 Plaintiffs, 16 v. 17 CHARTER COMMUNICATIONS, LLC, 18 Defendant. 19
20 ----oo0oo---- 21 22 Plaintiffs Lionel Harper, Daniel Sinclair, Hassan 23 Turner, Luis Vazquez, and Pedro Abascal (“plaintiffs”) brought 24 this putative class action against their former employer, Charter 25 Communications, alleging various violations of the California 26 Labor Code. Among other things, plaintiffs allege that Charter 27 misclassified them and other California employees as “outside 28 salespersons,” and consequently failed to pay them overtime 1 wages, failed to provide meal periods or rest breaks (or premium 2 wages in lieu thereof), and provided inaccurate wage statements. 3 (See generally Second Amended Complaint (“SAC”) (Docket No. 4 147).) 5 Charter now moves to dismiss (1) Count Five of 6 plaintiffs’ second amended complaint, alleging unlawful 7 calculation, deduction, and payment of commission wages, to the 8 extent that it is based on alleged violations of Labor Code 9 sections 204 and 2751; (2) Count Nine of the complaint, alleging 10 violation of California’s Unfair Competition Law (“UCL”), Cal. 11 Bus. & Prof. Code §§ 17200 et seq., in its entirety; and 12 (3) Count Ten of the complaint, alleging violation of 13 California’s Private Attorney General Act (“PAGA”), Cal. Lab. 14 Code §§ 2698 et seq., in its entirety. (See Mot. to Dismiss 15 (Docket No. 163).) 16 I. Facts & Procedural History 17 Much of this case’s factual and procedural background 18 is set forth in the court’s accompanying Order addressing 19 plaintiffs’ Motion to Modify the Scheduling Order and for Leave 20 to File a Third Amended Complaint. Accordingly, the court will 21 not repeat it here except where relevant to the instant motion. 22 Plaintiffs worked for Charter in California, either as 23 Account Executives or as Direct Sales Representatives, for 24 varying periods from January 2015 until March 2020. (SAC at 25 ¶¶ 5-9.) Lionel Harper, the initial plaintiff in this action, 26 worked for Charter until March 2018. (Id. at ¶ 5.) 27 On September 14, 2018, after his employment had ended, 28 Harper filed a notice with California’s Labor and Workforce 1 Development Agency (“LWDA”) (the “Notice”), sending a copy to 2 Charter, to notify them of Charter’s alleged violations of the 3 Labor Code. (See SAC, Ex. 2 (“Notice”) at 1.1) In the Notice, 4 Harper identified himself as “a former employee of Charter 5 Communications, LLC,” specified that he sent the letter “on 6 behalf of [himself] and all aggrieved employees,” and noted that 7 he intended to bring a civil PAGA action absent notice from the 8 LWDA that it intended to investigate the alleged violations. 9 (See id. at 1-2.) 10 Following an arbitration through JAMS, and after Harper 11 did not receive notice from the LWDA that it intended to 12 investigate, on May 3, 2019 he filed a complaint against Charter 13 in Shasta County Superior Court (1) alleging the same Labor Code 14 violations, on behalf of himself and all similarly situated 15 individuals; (2) alleging violation of the UCL; and (3) bringing 16 a representative PAGA action seeking civil penalties for the 17 alleged Labor Code violations. (See Docket No. 1-1.) 18 Charter removed the case to this court on May 17, 2019. 19 (See Docket No. 1.) Harper subsequently amended his complaint 20 twice, to add plaintiffs Sinclair, Turner, Vazquez, and Abascal, 21 on December 13, 2019 and June 4, 2021. (See Docket Nos. 45, 22 147.) He also subsequently submitted three amended notices to 23 the LWDA, to reference the other plaintiffs and to add additional 24 detail, on September 9, 2020, June 11, 2021, and July 15, 2021. 25 (SAC, Ex. 1 (Docket No. 147); Opp. to Mot. to Dismiss, Exs. 1 & 26 1 Plaintiffs’ second amended complaint marks this notice 27 as “Exhibit 1,” though it is the second exhibit included in the complaint. For purposes of this order, the court refers to 28 1 22 (Docket No. 170-2).) 2 II. Analysis 3 Federal Rule of Civil Procedure 12(b)(6) allows for 4 dismissal when the plaintiff’s complaint fails to state a claim 5 upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). 6 The inquiry before the court is whether, accepting the 7 allegations in the complaint as true and drawing all reasonable 8 inferences in the plaintiff’s favor, the complaint has stated “a 9 claim to relief that is plausible on its face.” Bell Atl. Corp. 10 v. Twombly, 550 U.S. 544, 570 (2007). 11 “The plausibility standard is not akin to a 12 ‘probability requirement,’ but it asks for more than a sheer 13 possibility that a defendant has acted unlawfully.” Ashcroft v. 14 Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the 15 elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.” Id. Although legal conclusions 17 “can provide the framework of a complaint, they must be supported 18 by factual allegations.” Id. at 679. 19 A. Counts Five (Commission Payments) and Nine (UCL) 20 In light of the court’s accompanying Order Re: 21 Defendant’s Motions to Compel Arbitration, the court will deny 22 Charter’s motion to dismiss Count Five of the Second Amended 23 Complaint in part and Count Nine in its entirety as moot, without 24 prejudice, as to plaintiffs Harper, Turner, Vazquez, and Abascal. 25 Further, because the court has stayed resolution of those claims 26 2 Plaintiffs’ opposition to the instant motion likewise 27 labels multiple exhibits as “Exhibit 1.” The court refers to them in the same manner as noted in the previous footnote. 28 1 pending arbitration, (see id.), the court will also deny the same 2 portions of Charter’s motion to dismiss as moot, without 3 prejudice, as to plaintiff Sinclair. Because only the resolution 4 of plaintiff Harper’s PAGA claim has not been stayed, in this 5 order the court will only substantively address Charter’s motion 6 to dismiss Count Ten of the complaint. 7 B. Count Ten (PAGA) 8 Charter seeks to dismiss plaintiff Harper’s PAGA claim 9 in its entirety, contending that because of various alleged 10 deficiencies in Harper’s initial notice to the LWDA, he has 11 failed to satisfy PAGA’s administrative exhaustion requirement. 12 (See Mot. to Dismiss at 12-22 (Docket No. 163).) In particular, 13 Charter argues that the Notice was fatally deficient for purposes 14 of the PAGA claim because the Notice (1) failed to identify the 15 “aggrieved employees” on whose behalf Harper sought to bring a 16 representative PAGA action, (2) failed to set forth sufficient 17 “facts and theories” to provide the LWDA an adequate basis for 18 deciding whether to investigate the alleged violations and to 19 provide Charter an adequate basis for deciding whether and how 20 vigorously to defend itself, and (3) omitted certain theories 21 under which Harper alleges Labor Code violations under his PAGA 22 claim; and because (4) the amended notices Harper subsequently 23 submitted to the LWDA cannot suffice to cure these deficiencies 24 because they were submitted after PAGA’s statute of limitations 25 had run and after this litigation had commenced. (See id.) 26 1. PAGA Background and Requirements 27 PAGA was enacted to remedy systemic underenforcement of 28 worker protections. Williams v. Super. Ct., 3 Cal. 5th 531, 545 1 (2017). To achieve this goal, PAGA allows an employee to bring a 2 civil action against an employer for violations of the Labor 3 Code. See Cal. Lab. Code § 2699(a). 4 “First, however, the employee must give ‘written notice 5 . . . to the [LWDA] and the employer of the specific provisions 6 . . . alleged to have been violated, including the facts and 7 theories to support the alleged violation.’” Alcantar v. Hobart 8 Serv., 800 F.3d 1047, 1056 (9th Cir. 2015) (quoting Cal. Lab. 9 Code § 2699.3(a)(1)); see Arias v. Super. Ct., 46 Cal. 4th 969, 10 981 (2009) (same). Then, if the LWDA notifies the employee and 11 employer within 60 days that it intends to investigate the 12 alleged violation(s), or if no notice is provided within 65 days, 13 the employee may bring suit. Cal. Lab. Code § 2699.3(a)(2)(A). 14 PAGA’s notice requirement was implemented to “allow[ ] 15 the [LWDA] to act first on more serious violations such as wage 16 and hour violations and give employers an opportunity to cure 17 less ‘serious’ violations.” Dunlap v. Super. Ct., 142 Cal. App. 18 4th 330, 338-39 (2d Dist. 2006) (quoting Cal. S. Rules Comm., 19 Off. of S. Floor Analyses, Bill Analysis for SB1809, at 5-6 (Aug. 20 27, 2004)); see also Alcantar, 800 F.3d at 1057 (notice 21 requirement exists “to allow the [LWDA] to intelligently assess 22 the seriousness of the alleged violations” and “permit the 23 employer to determine what policies or practices are being 24 complained of so as to know whether to fold or fight”); Williams, 25 3 Cal. 5th at 545-46 (purpose of LWDA notice requirement “is to 26 afford . . . the LWDA[ ] the opportunity to decide whether to 27 allocate scarce resources to an investigation, a decision better 28 made with knowledge of the allegations an aggrieved employee is 1 making and any basis for those allegations”). 2 To effectuate these goals, courts adjudicating PAGA 3 claims require that plaintiffs serving as PAGA representatives 4 have “compl[ied] with the statute’s notice requirements” before 5 bringing suit. See Alcantar, 800 F.3d at 1056; Brown v. Ralphs 6 Grocery Co., 28 Cal. App. 5th 824, 834-36 (2d Dist. 2018); Khan 7 v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 808-810 (2d Dist. 8 2018). “Considering the remedial nature of legislation meant to 9 protect employees,” however, in evaluating compliance courts 10 “construe PAGA’s provisions broadly, in favor of this 11 protection.” Kim v. Reins Int’l Cal., Inc., 9 Cal. 5th 73, 83 12 (2020). 13 2. Amendments and Operative Notice 14 Plaintiffs argue that, to the extent the Notice might 15 have insufficiently described the “facts and theories” Harper 16 alleges in his PAGA claim, those inadequacies have been cured by 17 subsequently filed amended LWDA notices. (See Opp. to Mot. to 18 Dismiss at 37-38 (Docket No. 170).) However, as the court 19 explained in its accompanying Order addressing plaintiffs’ Motion 20 for Leave to File a Third Amended Complaint, amended LWDA notices 21 filed after PAGA’s statute of limitations has run and after a 22 civil PAGA action has commenced cannot support that PAGA claim. 23 Accordingly, in evaluating whether PAGA’s notice requirements 24 have been satisfied in order to decide the instant motion, the 25 court will look to the original notice. 26 3. Identification of Aggrieved Employees 27 In moving to dismiss plaintiff Harper’s PAGA claim, 28 Charter first argues that the Notice was inadequate to satisfy 1 PAGA’s prerequisites to suit because it did not specify who the 2 “aggrieved employees” Harper sought to represent were. (Mot. to 3 Dismiss at 8 (Docket No. 163).) 4 Although PAGA’s “facts and theories” provision does not 5 reference employees other than the one who submits a notice to 6 the LWDA and subsequently brings a civil action, see Cal. Lab. 7 Code § 2699.3(a)(1)(A), PAGA defines “aggrieved employee” as “any 8 person who was employed by the alleged violator and against whom 9 one or more of the alleged violations was committed,” id. at 10 § 2699(c). Courts interpreting PAGA’s notice provisions have 11 also read into them a requirement that the other employees whom 12 the primary employee seeks to represent be sufficiently 13 identified. See, e.g., Brown, 28 Cal. App. 5th at 836 n.5; 14 Briggs v. OS Rest. Servs., LLC, LA CV18-08457 JAK (AFMx), 2020 WL 15 6260001, at *8 (C.D. Cal. Aug. 26, 2020). 16 In Brown, the operative LWDA notice identified the 17 plaintiff as an “hourly-paid security guard,” but referred to the 18 employees whom she sought to represent simply as “aggrieved 19 employees.” 28 Cal. App. 5th at 830. In light of the various 20 statutory violations alleged in the notice, however, which was 21 two pages long, the California Court of Appeal was able to “infer 22 . . . that the other ‘aggrieved employees’ [we]re non-exempted, 23 hourly-paid workers employed by defendants and against whom 24 defendants committed the alleged Labor Code Violations.” Id. at 25 830, 836 n.5. On this basis, the court “conclude[d that] the 26 . . . Notice sufficiently identified the other aggrieved 27 employees.” Id. at 836 n.5. 28 By contrast, in Briggs, upon which Charter relies, (see 1 Def.’s Reply at 13 (Docket No. 187)), the notice “fail[ed] to 2 provide any specific factual allegations to support any of 3 Plaintiff[’]s claims under the Labor Code,” including identifying 4 the aggrieved employees the plaintiff sought to represent. 2020 5 WL 6260001, at *8. Instead, it referred only to “other former 6 and current employees.” Id. at *6. The Briggs court compared 7 this situation to that in a prior case, wherein the notice had 8 identified the aggrieved employees as “all other similarly 9 situated current and former non-exempt hourly employees of 10 Sunrise Senior Living Management during the four years preceding 11 the date of this notice,” which the court had deemed adequate, 12 and determined that the Briggs plaintiff’s notice was 13 insufficient. Id. at *8 (citing Shiferaw v. Sunrise Senior 14 Living Mgmt., Inc., 2:13-cv-02171-JAK-PLAx, 2016 WL 6571270, at 15 *19 (C.D. Cal. Mar. 21, 2016)). 16 Here, Harper’s notice is readily distinguishable from 17 the one in Briggs.3 Through his PAGA claim, Harper “seek[s] to 18 recover civil penalties . . . on behalf of the State of 19 California, Plaintiffs, and all outside salespersons and 20 commission-eligible employees in California . . . who were 21 aggrieved . . . during the relevant PAGA period.” (SAC at ¶ 98 22 3 Further, to the extent that the approaches taken by the 23 courts in Briggs and Brown differ, this court will adopt the approach taken in Brown, which appears to be the most relevant 24 decision from a California court of appeal interpreting this requirement. See McSherry v. Block, 880 F.2d 1049, 1052, 1052 25 n.2 (9th Cir. 1989) (state appellate courts’ interpretations of state statutes entitled to deference by federal courts except 26 where in conflict with higher state courts or where the federal 27 court is “convinced that the highest court of the state would decide to construe the statute otherwise”) (quoting West v. Am. 28 1 (Docket No. 147).) This is plainly more specific than the “other 2 former and current employees” referenced in the Briggs notice. 3 Further, although the Notice does not directly define 4 “aggrieved employees” as including “commission-eligible 5 employees,” it nonetheless alleges that “[Charter] recruits and 6 incentivize[s] sales employees like [Harper] by emphasizing their 7 ability to earn commissions” and goes on to allege numerous 8 commission-related violations committed against them. (See 9 Notice at 4 (Docket No. 147).) This language readily lends 10 itself to the inference that “aggrieved employees” here includes 11 employees occupying sales roles who were paid -- or who were 12 eligible to be paid -- commissions. See Brown, 28 Cal. App. 5th 13 at 836 n.5. 14 Likewise, although the Notice does not include 15 plaintiffs’ allegation that many of the claimed violations were 16 due to Charter’s alleged misclassification of them as outside 17 salespersons, as Charter observes, (see Mot. to Dismiss at 1, 16 18 (Docket No. 163)), it repeatedly refers to “nonexempt employees 19 like [Harper].” (E.g., Notice at 3 (Docket No. 147).) The 20 complaint’s basic contention as to this group of employees is 21 that they, like the named plaintiffs, were “misclassified as 22 exempt,” i.e., exempt from Labor Code requirements the violation 23 of which the complaint alleges. (See SAC at ¶¶ 13-15 (Docket No. 24 147).) Although somewhat less strong than the inference 25 regarding commission-eligible employees, a similar inference may 26 also be drawn from the Notice as to employees referenced in the 27 complaint who were allegedly misclassified. Accordingly, the 28 court concludes that the Notice adequately identifies the 1 “aggrieved employees.” 2 In its reply, Charter also argues that, because the 3 portion of the Notice alleging violation of Labor Code sections 4 226, 432, and 1198.5 does not specify that employees other than 5 Harper experienced such violations, the Notice failed to advise 6 the LWDA that he sought to challenge these violations on a 7 representative basis, precluding him from doing so here. (See 8 Def.’s Reply at 12 (Docket No. 187).) In support of this 9 argument, Charter relies on Khan v. Dunn-Edwards Corp., 19 Cal. 10 App. 5th 804 (2d Dist. 2018). There, the California Court of 11 Appeal held that because the plaintiff’s notice specified that it 12 only advised the LWDA of his own claims against his employer, 13 making no reference whatsoever to any other current or former 14 employees, it failed to indicate that he sought to bring a 15 representative action, which is the only type of action that may 16 be brought under PAGA. See id. at 809-10, 810 n.1. 17 Charter argues that under Khan, Harper may not 18 challenge alleged violations of sections 226, 432, or 1198.5 19 because the relevant portion of the Notice did not reference 20 other employees. However, the Notice here is quite different 21 than the one in Khan. Whereas in Khan, the plaintiff made clear 22 that his notice did not challenge any violations on behalf of 23 other employees, see id. at 807 (observing that the notice stated 24 that it “shall constitute written notice . . . of my claims 25 against my former employer,” and that the plaintiff “admitted 26 that his notice . . . ‘does not reference any other current or 27 former employee besides [him]’”), here the Notice states at its 28 outset, “[O]n behalf of Employee and all aggrieved employees, 1 this letter gives written notice to the [LWDA] and to [Charter] 2 of serious and ongoing violations of the California Labor Code,” 3 (Notice at 1 (Docket No. 147)). 4 Accordingly, the Notice makes clear that Harper sought 5 to challenge the violations alleged therein on a representative 6 basis, notwithstanding the fact that one portion of the Notice 7 does not specify this. Indeed, in Khan, the court examined two 8 prior cases, one in which a plaintiff’s notice “referred to 9 ‘employees’ and employees’ ‘wage statements,’” and another in 10 which the notice “advised the agency that counsel represented 11 [the plaintiff] ‘in a potential class action,’” and observed that 12 those notices had “sufficiently suggested claims on multiple 13 employees.” See Khan, 19 Cal. App. 5th at 809-10 (quoting York 14 v. Starbucks Corp., CV-08-07919 GAF (PJWx), 2012 WL 10890355, at 15 *4 (C.D. Cal. Nov. 1, 2012); Gonzalez v. Millard Mall Servs., 16 Inc., 09-cv-2076-AJB(WVG), 2012 WL 3629056, at *3 (S.D. Cal. Aug. 17 21, 2012)). 18 Here, because the Notice’s references to other 19 employees are even more prevalent, it sufficiently suggested that 20 Harper sought to pursue a representative claim as to all alleged 21 Labor Code violations, including sections 226, 432, and 1198.5. 22 See Mays v. Wal-Mart Stores, Inc., 354 F. Supp. 3d 1136, 1148-49 23 (C.D. Cal. 2019) (despite fact that notice’s allegations of one 24 violation only referenced plaintiff, fact that notice’s opening 25 language stated intent to represent “all impacted employees” 26 “sufficiently suggested claims on behalf of aggrieved employees” 27 for purposes of that violation, distinguishing Khan). 28 4. Sufficiency of Facts and Theories in Notice 1 In its motion, Charter also argues that the Notice does 2 not set forth sufficient “facts and theories,” as the term is 3 used in the PAGA statute, to have adequately informed the LWDA or 4 Charter of the alleged violations. (See Mot. to Dismiss at 16-21 5 (Docket No. 163).) Specifically, it argues that the Notice is 6 inadequate because it fails to reference plaintiffs’ allegation 7 that they were misclassified. (See id. at 16.) It also contends 8 that many of the Notice’s allegations merely recite the 9 requirements of the relevant Labor Code provisions and assert 10 that Charter did not comply with them, and argues that 11 consequently, the Notice does not satisfy PAGA’s administrative 12 exhaustion requirement, requiring dismissal of Harper’s PAGA 13 claim. (See id. at 16-21.) 14 For support, Charter cites Alcantar, 800 F.3d 1047. 15 There, the plaintiff’s notice, in its entirety, read as follows: 16 Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a 17 former employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). 18 Plaintiff contends that Defendant (1) failed to pay wages for all time worked; (2) failed 19 to pay overtime wages for overtime worked; (3) failed to include the extra compensation 20 required by California Labor Code section 1194 in the regular rate of pay when 21 computing overtime compensation, thereby failing to pay Plaintiff and those who 22 earned additional compensation for all overtime wages due; (4) failed to provide 23 accurate wage statements to employees as required by California Labor Code section 24 226; (5) failed to provide reimbursement for work related expenses as required by Labor 25 Code § 2802; and, (6) failed to provide off- duty meal periods and to pay compensation 26 for work without off-duty meal periods to its California employees in violation of 27 California Labor Code sections 226.7 and 512, and applicable Industrial Welfare 28 Commission orders. Said conduct, in 1 addition to the forgoing, violated each Labor Code section as set forth in 2 California Labor Code section 2699.5. 3 Id. at 1057 (alterations in original). As the Ninth Circuit 4 observed, “The only facts or theories that could be read into 5 this letter are those implied by the claimed violations of 6 specific sections of the California Labor Code—that [defendant] 7 failed to pay wages for time worked, failed to pay overtime wages 8 for overtime worked, failed to include the extra compensation 9 required by § 1194 in the regular rate of pay when computing 10 overtime compensation, and so on.” See id. Accordingly, it held 11 that the notice -- “a string of legal conclusions with no factual 12 allegations or theories of liability to support them” -- was 13 “insufficient to allow the [LWDA] to intelligently assess the 14 seriousness of the alleged violations.” See id. 15 Since Alcantar, the California Supreme Court has also 16 spoken to the degree of detail that an LWDA notice must include. 17 In Williams, it stated that “[n]othing in . . . section 2699.3, 18 subdivision (a)(1)(A), indicates the ‘facts and theories’ 19 provided in support of ‘alleged’ violations must satisfy a 20 particular threshold of weightiness, beyond the requirements of 21 nonfrivolousness generally applicable to any civil filing.” 22 Williams, 3 Cal. 5th at 545. 23 In Brown, the California Court of Appeal interpreted 24 these decisions in the course of evaluating the sufficiency of an 25 LWDA notice. It observed that, under Alcantar’s reasoning, “the 26 notice provision requires something more than bare allegations of 27 a Labor Code violation.” Brown, 28 Cal. App. 5th at 836 (citing 28 Alcantar, 800 F.3d at 1057). However, it nonetheless took a 1 somewhat permissive approach. For example, where the notice, in 2 alleging that the defendant failed to maintain accurate or 3 complete wage statements under Labor Code section 226, alleged a 4 “failure to include the [employer’s] name and address” on those 5 statements, the court held that “[t]his minimal fact supports the 6 alleged violation, making the . . . Notice adequate.” See id. at 7 838. Nevertheless, the court deemed the notice deficient as to 8 other claims, where, for example, the plaintiff simply alleged 9 that “she and other aggrieved employees ‘did not take all meal 10 and rest periods and were not properly compensated for missed 11 meal and rest periods’ in violation of [Labor Code] sections 12 226.7 and 512.” See id. at 837. 13 Brown thus most clearly illustrates the standard to be 14 applied in evaluating the sufficiency of an LWDA notice: Where an 15 allegation in an LWDA notice simply recites Labor Code 16 requirements and asserts that the defendant failed to adhere to 17 them, those allegations are typically insufficient to support a 18 PAGA claim as to those violations. See id. at 836-38; Alcantar, 19 800 F.3d at 1057; Briggs, 2020 WL 6260001, at *7; Mays, 354 F. 20 Supp. 3d at 1147. On the other hand, where an allegation 21 includes even “minimal fact[s]” beyond that, it is generally 22 sufficient to support an associated PAGA claim. See Brown, 28 23 Cal. App. 5th at 838; Bowen v. Target Corp., EDCV 16-2587 JGB 24 (MRWx), 2020 WL 1931278, at *4-5 (C.D. Cal. Jan. 24, 2020) 25 (notice need not “lay out an intricate factual basis for [an 26 employee’s] claims” or include “extensive specificity,” but 27 rather is sufficient if it “does more than merely recite a 28 ‘string of legal conclusions’”) (quoting Alcantar, 800 F.3d at 1 1056); Mays, 354 F. Supp. 3d at 1147 (notice “‘is sufficient’ . . 2 . if ‘it contains some basic facts about the violations’”) 3 (quoting Green v. Bank of Am., N.A., 634 F. App’x 188, 190 (9th 4 Cir. 2015)); see also Kim, 9 Cal. 5th at 83 (courts are to 5 “construe PAGA’s provisions broadly, in favor of [employee] 6 protection”). 7 Further, this court agrees with Judge Birotte in the 8 Central District of California that, where a complaint puts 9 forward multiple theories of recovery under a single section of 10 the Labor Code, the notice need not describe each and every one, 11 see Mays, 354 F. Supp. 3d at 1148, so long as it adequately 12 advises the LWDA of the scope of the alleged violations under 13 that section, see Williams, 3 Cal. 5th at 545-46. 14 a. Misclassification Allegations 15 At the outset, Charter argues that because plaintiffs’ 16 overarching basis for their allegations is that Charter 17 misclassified them as exempt -- which Charter terms their 18 “central, indispensable theory” -- the Notice, in light of PAGA’s 19 “facts and theories” requirement, cannot support Harper’s PAGA 20 claim as to any alleged violation because it omits this detail. 21 (See Mot. to Dismiss at 16 (emphasis omitted) (Docket No. 163).)4 22 As precedent makes clear, however, this argument is unavailing. 23 Although aggrieved employees are required to at least 24 include some “minimal detail[s]” in LWDA notices beyond the 25 requirements of Labor Code provisions an employer has allegedly 26 violated, they are not required to comprehensively explain the 27 4 Plaintiffs do not dispute that the Notice omits this 28 1 basis of the alleged violations. See Brown, 28 Cal. App. 5th at 2 836-38; Bowen, 2020 WL 1931278, at *5. Nor are they required to 3 explain how a broader practice by an employer resulted, in turn, 4 in the individual alleged violations, so long as they provide 5 some details about those violations. See Bowen, 2020 WL 1931278, 6 at *4-5 (rejecting argument that plaintiff’s failure to 7 “specifically identify the theory of her on-premises rest period 8 claim” rendered her notice insufficient because the notice 9 nonetheless advised the LWDA of “some of the facts and theories 10 in her on-premises rest period claims . . . , including all 11 violated provisions of the Labor Code”). Accordingly, so long as 12 Harper’s notice satisfies these standards, it is sufficient even 13 absent specific reference to misclassification.5 14
15 5 Charter contends that, “as other courts have held,” Harper was “required” to include reference to misclassification 16 in the Notice. (See Def.’s Reply at 13-14 (Docket No. 187).) However, the decisions Charter cites in support of this 17 contention have not, in fact, so held. Sinohui, the only one 18 that dismissed a PAGA claim, did so specifically because the notice “assert[ed] no facts to support the alleged violations,” 19 which failed to distinguish it from the notice in Alcantar. See Sinohui v. CED Ent., Inc., EDCV 14-2516-JLS (KKx), 2016 WL 20 3406383, at *3-4 (C.D. Cal. June 14, 2016). In fact, because of this deficiency, the court expressly declined to reach arguments 21 the defendant had made about misclassification. See id. at *4. 22 Conde, which upheld a PAGA claim where the notice included the plaintiff’s allegation that she had been 23 misclassified, did so because this allegation represented one of the few details of any kind the notice included beyond listing 24 statutory requirements, distinguishing it from Alcantar; although Conde found this detail sufficient, nowhere did it indicate that 25 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 26 plaintiff likewise alleged misclassification in her notice, the 27 court observed that this was one of many details it included, and concluded that together these were sufficient; again, the court 28 1 b. Labor Code Allegations 2 Charter also argues that most of the specific Labor 3 Code violations alleged in the Notice do not set forth “facts and 4 theories” sufficient to support the corresponding claims in 5 Harper’s PAGA action, but rather simply list the relevant Labor 6 Code requirements and assert that Charter violated them. (See 7 Mot. to Dismiss at 16-21 (Docket No. 163).) 8 i. Minimum and Overtime Wage Violations 9 The Notice’s first set of allegations, alleging failure 10 to properly calculate and pay minimum and overtime wages in 11 violation of Labor Code sections 510, 1182.12, and 1197, 12 summarizes those sections’ requirements: Employers must pay 13 employees at least the applicable minimum wage for all hours 14 worked, with specified overtime rates for hours worked beyond 15 eight hours in a day, forty hours in a week, and so on. (See 16 Notice at 2 (Docket No. 147).) It then states, in part: 17 “Defendant regularly required employees during training to work a 18 full day and then complete homework after the work day ended. 19 The training and homework combined required employees to work 20 more than 8 hours in a day, but Defendant did not keep track of 21
22 Stevens v. Datascan Field Servs. LLC, 2:15-cv-00839-TLN-AC, 2016 WL 627362, at *4 (E.D. Cal. Feb. 17, 2016). 23 Finally, Patel and Casida only discussed misclassification in the context of class actions, and neither 24 discussed PAGA’s notice requirements, making them inapposite. See Patel v. Nike Retail Servs., Inc., 14-cv-04781-RS, 2016 WL 25 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 26 (E.D. Cal. Aug. 8, 2012), report and recommendation adopted, 2012 27 WL 3763621 (E.D. Cal. Aug. 29, 2012). Further, all of these cases predated Brown and Williams, meaning they could not 28 1 or pay employees all wages for the time worked over 8 hours in a 2 day or 40 hours in a week during training.” (Id. at 3.) It also 3 alleges that Charter likewise failed to track hours worked 4 outside of training weeks and consequently failed to pay 5 employees overtime wages. (See id.) 6 By specifying that these alleged violations occurred 7 both during and after training periods, and that, during training 8 periods, they were the result of Charter requiring employees to 9 complete homework after a full day of work, the Notice does more 10 than repeat the statutory requirements and allege violation 11 thereof, thereby clearing the “minimal facts” threshold. See 12 Brown, 28 Cal. App. 5th at 838. It is therefore sufficient to 13 support Harper’s PAGA claim as to Charter’s alleged violations of 14 Labor Code sections 510, 1182.12, and 1197. 15 ii. Meal and Rest Break Violations 16 In its next set of allegations, alleging failure to 17 provide uninterrupted meal and rest breaks or pay premium wages 18 in lieu thereof in violation of Labor Code sections 226.7 and 19 512(a), the Notice proceeds in a similar fashion. After 20 summarizing the statutory requirements, it alleges, in part, that 21 Charter “does not require or allow [Harper] and other nonexempt 22 employees to clock-out and clock-in for each meal period and 23 accurately record the existence and length of each meal period 24 taken.” (Notice at 3 (Docket No. 147).) In doing so, it 25 provides detail beyond that which is “implied by the claimed 26 violations of specific sections of the California Labor Code,” 27 Alcantar, 800 F.3d at 1057 -- in part because these sections make 28 no mention of clocking in or out for meal breaks, see Cal. Lab. 1 Code §§ 226.7, 512(a) -- and therefore is sufficient to support 2 the PAGA claim as to these alleged violations. 3 iii. Commission Wage Violations 4 Next, the Notice alleges unlawful deductions of 5 commission wages in violation of Labor Code sections 221, 223, 6 224, and 2751. (See Notice at 4 (Docket No. 147).) After 7 listing the statutory requirements, the Notice goes on to allege, 8 in part, that Charter “recruits and incentivize[s] sales 9 employees like [Harper] by emphasizing their ability to earn 10 commissions,” “fails to pay all amounts owed” under its allegedly 11 “unlawful and unfair compensation terms,” and consequently “has 12 not paid [Harper] and similarly situated employees all of the 13 commission wages they are owed.” (Id.) Because the Notice 14 provides additional context beyond that implied by the statutory 15 requirements, it gave the LWDA adequate notice under PAGA, 16 notwithstanding its failure to specify how the commission 17 compensation terms were allegedly unlawful and unfair, as Charter 18 argues it was required to do. (See Mot. to Dismiss at 18 (Docket 19 No. 163).) 20 Charter argues that the commission-related allegations 21 are further deficient in that they do not include various 22 specific violations of section 2751 that plaintiffs allege in the 23 Second Amended Complaint, such as Charter’s alleged failure to 24 give employees a fully signed copy of commission agreements or to 25 clearly state in those agreements when commissions would be 26 calculated, earned, and paid. (See id. at 18-19.) As noted 27 above, however, Harper was not required to describe each and 28 every alleged violation of a particular Labor Code section that 1 he would ultimately include in the operative complaint, so long 2 as the allegations were sufficient to apprise the LWDA of the 3 scope of the violations. See Mays, 354 F. Supp. 3d at 1148; 4 Williams, 3 Cal. 5th at 545-46. 5 In addition to the already-noted details, this portion 6 of the Notice also advised the LWDA that Charter allegedly “fails 7 to perform all of its obligations under the [compensation] terms” 8 and “relied on methods for the computation and payment of 9 commissions that are not set forth in [those] terms.” (Notice at 10 4 (Docket No. 147).) While these allegations lack the detail 11 included in some of the other commission-related allegations, 12 together they adequately conveyed the scope of the alleged 13 violations to the LWDA. Accordingly, this set of allegations is 14 sufficient to support Harper’s PAGA claim as to the alleged 15 violations of sections 221, 223, 224, and 2751. 16 iv. Wage Statement Violations 17 The Notice also alleges failure to maintain accurate 18 records and wage statements in violation of Labor Code sections 19 226 and 1174(d). (See id. at 6.) After summarizing the 20 statutory requirements, the Notice alleges in part that Charter 21 “failed to keep accurate records reflecting [Harper]’s and other 22 employees’ hours worked and when meal periods occurred” and that 23 some wage statements “also failed to record the time worked, 24 wages due, and inclusive dates of the applicable pay periods.” 25 (Id.) 26 Unlike with the previous sets of allegations, Charter 27 does not appear to challenge the sufficiency of these allegations 28 to support related violations alleged in Harper’s PAGA claim, but 1 rather contends that they omit wage statement-related allegations 2 included in the Second Amended Complaint, such that the PAGA 3 claim must be dismissed as to those allegations. (See Mot. to 4 Dismiss at 19-20 (Docket No. 163).) As discussed, however, 5 Harper was not required to describe every alleged violation of 6 each statute in the Notice. Because it appears that all of the 7 allegations in the Second Amended Complaint that Charter here 8 challenges arise under section 226 of the Labor Code, and because 9 the Notice includes adequate information to apprise the LWDA of 10 the broad scope of the violations Harper alleges under that 11 section, the Notice is sufficient to support his PAGA claim as to 12 those allegations. 13 Charter also notes that some of the Second Amended 14 Complaint’s wage statement-related allegations pertain to alleged 15 violations that occurred more than one year before the Notice was 16 filed. (See id. at 20.) It argues that because PAGA’s statute 17 of limitations is one year, this provides a separate basis for 18 dismissal of Harper’s PAGA claim to the extent that it alleges 19 wage statement violations that occurred outside of the statutory 20 period. (See id.) 21 The court agrees. However, although PAGA has a one- 22 year statute of limitations, it provides that the statute is 23 tolled during the pendency of the LWDA notice, i.e., up to 65 24 days. See Cal. Lab. Code §§ 2699.3(a)(2),(d); Hill v. Genuine 25 Parts Co., 1:18-CV-1550 AWI SAB, 2019 WL 935976, at *2 (E.D. Cal. 26 Feb. 26, 2019). Here, because 65 days passed after Harper 27 submitted the Notice on September 14, 2018, and the LWDA did not 28 respond, (see SAC at ¶ 3 (Docket No. 147)), the statute of 1 limitations was tolled for that period. Accordingly, in his PAGA 2 claim, Harper may not challenge wage statement violations that 3 are alleged to have occurred prior to July 11, 2017, and the 4 court will grant Charter’s motion on that limited basis. 5 v. Timely Payment Violations 6 Lastly, the Notice alleges failure to timely pay wages 7 during employment and upon termination, or to pay penalty wages 8 for late payment of wages upon termination, in violation of Labor 9 Code sections 201, 202, 203, and 204. (See Notice at 5 (Docket 10 No. 147).)6 In addition to summarizing the statutory 11 requirements, the Notice alleges, in part, that because of other 12 previously mentioned alleged violations, such as failure to 13 record all hours worked or pay all commission wages owed, “when 14 [Charter] paid [Harper] and other former employees’ final 15 paychecks, they were all miscalculated and too small,” and 16 Charter “fail[ed] to pay all wages earned . . . at least twice 17 monthly.” (Id.) 18 Charter argues that these allegations are simply 19 derivative of the alleged overtime, minimum wage, commission, and 20 meal and rest break violations, and that because those alleged 21 violations were insufficient, these must be as well. (See Mot. 22 to Dismiss at 20-21 (Docket No. 163).) However, because the 23 court has already determined that the other allegations were 24 6 The Notice also alleges failure to timely provide a 25 copy of personnel records upon request in violation of Labor Code sections 226, 432, and 1198.5. (See Notice at 6-7 (Docket No. 26 147).) However, because Charter has not challenged the 27 sufficiency of the Notice as to those alleged violations, (see Mot. to Dismiss (Docket No. 163)), the court will not address 28 ene EEE I III EEN EE IEEE IRE GUIS INGE OSU INGEE IIR ESOS mE
1 sufficient to support Harper’s PAGA claim as to those alleged 2 violations, Charter’s argument here must be rejected. 3 IT IS THEREFORE ORDERED that Charter’s Motion to 4 Dismiss Count Five of plaintiffs’ Second Amended Complaint in 5 | part and Count Nine of plaintiffs’ Second Amended Complaint in 6 its entirety be, and the same hereby is, DENIED without prejudice 7 to the motion being renewed in the event that the stay ordered in 8 the accompanying Order Re: Defendant’s Motions to Compel 9 | Arbitration is lifted; 10 IT IS FURTHER ORDERED that Charter’s Motion to Dismiss 11 Count Ten of plaintiffs’ Second Amended Complaint, insofar as it 12 is based on alleged violations of Labor Code Sections 226 and 13 1174(d) that occurred prior to July 11, 2017, be, and the same 14 hereby is, GRANTED; 15 AND IT IS FURTHER ORDERED that in all other respects 16 | Charter’s Motion to Dismiss Count Ten of plaintiffs’ Second 17 Amended Complaint be, and the same hereby is, DENIED. 18 | Dated: October 12, 2021 / td . ak. 2 19 WILLIAMB.SHUBB □ 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 24