©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 125 While ordering the production of employee contact information in response to interrogatories, Williams acknowledged that when a party seeks information through other discovery devices, such as demands for inspection and copying, good cause must be shown before production may be compelled.490 Williams also recognized that a PAGA plaintiff must demonstrate “trial manageability,” such that a PAGA claim should be dismissed if there are too many individualized issues to allow the action to be manageably tried. Despite Williams, there is an appellate split as to whether PAGA claims are subject to a motion to strike on manageability grounds.491 Because of this split, the California Supreme Court granted review of this issue: “Do trial courts have inherent authority to ensure that claims under the [PAGA] will be manageable at trial, and to strike or narrow such claims if they cannot be managed?”492 Suing for Wage Order violations. Courts have permitted aggrieved employees to pursue PAGA claims not only for violations of provisions appearing expressly within the Labor Code, but also for violations of provisions appearing only in the Wage Orders. These courts have concluded that Labor Code section 1198 incorporates the Wage Order provisions by reference.493 Accordingly, PAGA claims may assert violations of applicable Wage Orders, including violations of “suitable seating” requirements (see § 7.11). The Wage Orders include regulations on various other working conditions as well, including suitable workplace temperature. Recovering wages as civil penalties. Although the California Supreme Court characterized a PAGA “action to recover civil penalties [as] fundamentally a law enforcement action designed to protect the public and not to benefit private parties,”494 some California decisions permitted PAGA plaintiffs to seek “underpaid wages,” under Labor Code section 558, as part of the civil penalty.495 These decisions benefitted plaintiffs’ lawyers by saying that they did not have to choose between (1) pursuing lucrative claims for unpaid wages while running the risk that defendants would (a) remove the action to federal court and (b) enforce arbitration agreements with class-action waivers and (2) pursuing only civil penalties, in a PAGA action that would resist both removal and attempts to enforce arbitration agreements. 496 The California decisions permitted plaintiffs’ lawyers to combine the best of both options by bringing a PAGA action to seek unpaid wages under section 558, which authorizes the Labor Commissioner (and inferentially a PAGA plaintiff) to recover civil penalties and unpaid wages. The California Supreme Court brought this plaintiffs’ gravy train to a halt in 2019, holding that employees can use PAGA only to recover civil penalties, not to recover unpaid wages.497 The case arose when a bank employee, who had signed an arbitration agreement with a class-action waiver, avoided the waiver by suing only under PAGA, alleging failures to provide overtime and minimum wages, meal and rest periods, timely wages, adequate wage statements, and expense reimbursements. She argued that section 558 entitled her to seek not only civil penalties for each underpaid employee for each pay period, but also the amount of underpaid wages. This ploy worked with the Court of Appeal, which held that a PAGA plaintiff invoking section 558 could both avoid arbitration and recover unpaid wages, as a form of civil penalties recoverable through PAGA.498 The California Supreme Court agreed to review the case to decide whether the FAA preempts a state rule that would keep an arbitration agreement from applying to a PAGA claim for unpaid wages, but then decided to address a “more fundamental question”: whether a PAGA plaintiff can obtain unpaid wages under section 558.499 The California Supreme Court concluded that the unpaid wages recoverable under section 558 are not civil penalties and thus are not recoverable in a PAGA action: only the Labor Commissioner can recover unpaid wages under section 558. Thus, a plaintiff who sues only under PAGA can recover only civil penalties, and not unpaid wages.500
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