150 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com level of specificity for Section 2699.3(a)(1) is not satisfied here” because plaintiff “mimicked the statute violated, and therefore, the claims will be dismissed”); Alcantar v. Hobart Serv., 800 F.3d 1047, 1057 (9th Cir. 2015) (notice letter lacking “factual allegations or theories of liability” is insufficient to support PAGA claims); Archila v. KFC U.S. Props., Inc., 420 Fed. Appx. 667, 669 (9th Cir. 2011) (letter that “merely lists” Labor Code provisions lacks sufficient “facts and theories”); Ovieda v. Sodexo Operations, LLC, No. CV 12-1750-GHK SSX, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013) (“To constitute adequate notice under § 2699.3(a), the notice must allege at least some ‘facts and theories’ specific to the plaintiff’s principal claims; merely listing the statutes allegedly violated or reciting the statutory requirements is insufficient.”); Williams v. Superior Court, 3 Cal. 5th 531, 545–46 (2017) (“The evident purpose of the notice requirement is to afford the relevant state agency, the Labor and Workforce Development Agency, 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.”). 448 Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 809 (2018) (affirming summary judgment against PAGA plaintiff because his LWDA letter giving notice of his claimreferred only to himself and he had dismissed his individual claim; he could not sue on behalf of other aggrieved employees, because they were not mentioned in the LWDA notice). 449 Rojas-Cifuentes v. Superior Court, 58 Cal. App. 5th 1051, 1059-61 (2020). 450 Caliber Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365 (2005). disapproved on other grounds in ZB, N.A. v. Superior Court, 8 Cal. 5th 175, 195–96 (2019). See also Dunlap v. Superior Court (Bank of Am.), 142 Cal. App. 4th 330, 340 (2006) (statutory penalties recoverable by employee before adoption of Private Attorneys General Act are not subject to its requirement to exhaust administrative remedies). 451 Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1200 (2008). 452 Moniz v. Adecco USA, Inc., 72 Cal. App. 5th 56, 80 (2021) (“As a condition of suit under PAGA, the aggrieved employee must provide notice to the employer and the [LWDA] of the specific provisions [of the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.”) (internal quotations and citations omitted); Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 835 (2018) ( “Proper notice under section 2699.3 is a ‘condition’ of a PAGA lawsuit.”) (quoting Williams v. Superior Court, 3 Cal. 5th 531, 545 (2017)). 453 Lab. Code § 2699(e)(2). 454 DiPirro v. Bondo Corp., 153 Cal. App. 4th 150, 182 (2007), as modified (Aug. 8, 2007) (“[T]he statute has delegated the assessment of civil penalties in accordance with a highly discretionary calculation that takes into account multiple factors.”). See, e.g., Kaanaana v. Barrett Bus. Servs., Inc., 29 Cal. App. 5th 778, 788 (2018), review granted and aff’d on other grounds, 11 Cal. 5th 158 (2021) (noting that the trial court “exercised its discretion to reduce the [PAGA] penalties to 13 percent of the full amount [requested, because] [o]n average, plaintiffs were deprived of 13 percent of the 30-minute meal period”); Magadia v. Wal-Mart Assocs., Inc., 384 F. Supp. 3d 1058, 1100-01, 1104 (N.D. Cal. 2019) (reducing PAGA penalty of $131 million to $48 million for wage-statement violations involving details on bonus payments, because statutory and PAGA penalties for the same violation should not be disproportionate and because the underlying violation involved reporting an employee benefit—a bonus payment; and reducing PAGA penalty of $29 million to $5.8 million because of uncertainty in the law allowing employer to dispute liability in good faith), rev’d in part, vacated in part, 999 F.3d 668 (9th Cir. 2021) (reversing judgment and award of damages on wage statements claims against defendant); Bernstein v. Virgin Am., Inc., 365 F. Supp. 3d 980, 992 (N.D. Cal. 2019) (reducing PAGA penalties by 25 percent from $33.3 million to $24.98 million, in light of $45 million in damages, defendant’s ability to pay, and uncertainty of liability given lack of precedent and nonfrivolous preemption arguments); Aguirre v. Genesis Logistics, 2013 WL 10936035, at *2–3 (C.D. Cal. Dec. 30, 2013) (reducing PAGA penalties from $1.8 million to $500,000 for a wage-statement violation where the potential statutory penalties, under section 226(e), were only $500,000); Fleming v. Covidien, Inc., 2011 WL 7563047, at *4 (C.D. Cal. Aug. 12, 2011) (reducing PAGA penalties for wage statement violations from $2,800,000 to $500,000, because “the aggrieved employees suffered no injury” as a result of the violations, the defendants “were not aware” their wage statements violated the law, and the defendants “took prompt steps to correct all violations once notified”); Carrington v. Starbucks Corp., 30 Cal. App. 5th 504, 517, 529 (2018) (affirming reduction of potential penalty of $50 per employee per pay period to just $5 because the violation—providing meal periods just slightly after the five-hour mark—was “greatly minimal” and the employer had attempted “full compliance” with “good faith attempts”; imposing maximum penalty would be unjust, arbitrary, and oppressive); Thurman v. Bayshore Transit Mgmt., Inc., 203 Cal. App. 4th 1112, 1135–36 (2012) (affirming reduction of PAGA penalties by 30 percent, as awarding full penalties would have been “unjust” because “the evidence showed … defendants took their obligations … seriously and attempted to comply with the law,” and that the defendants’ financial condition “rendered them unable to pay penalties from ongoing revenues”), disapproved of on separate grounds by ZB, N.A. v. Superior Court, 8 Cal. 5th 175, 448 P.3d 239 (2019). Cf. Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1214 (2008) (affirming trial court’s refusal to reduce PAGA penalties where employer “was on notice that [a wage ordinance] applied to its operations but made no attempt to comply” and the employer’s conduct “could be characterized as gross negligence or reckless disregard”). 455 Lab. Code § 2699(l)(2). 456 Id. 457 Singh v. Roadrunner Intermodal Servs., LLC, 2019 WL 316814, at *6 (E.D. Cal. Jan. 24, 2019) (holding that “the settlement amount related to plaintiffs’ PAGA claims is fair, reasonable, and adequate,” even though the settlement amount ($100,000) is less than 1% of the maximum value of PAGA penalties ($14,244,000)); Haralson v. U.S. Aviation Servs. Corp., 2020 WL 12309507, at *6 (N.D. Cal. Sept. 3, 2020) (approving motion for preliminary approval even though “[t]he proposed [s]ettlement’s PAGA recovery of $75,000 [wa]s just 1 percent of th[e] recalculated amount.”); Jennings v. Open Door Mktg., LLC, 2018 WL 4773057, at *9 (N.D. Cal. Oct. 3, 2018) (approving 0.6 percent PAGA allocation where “[p]laintiffs [have] submitted the settlement agreement to the LWDA, and the LWDA has not objected to the settlement”); Chu v. Wells Fargo Invs., LLC, 2011 WL 672645, at *1, 3 (N.D. Cal. Feb. 16, 2011) (approving PAGA settlement payment of $7,500 to LWDA, 0.1% of $6.9 million settlement); Gong-Chun v. Aetna, Inc., 2012 WL 2872788, at *4 (E.D. Cal. July 12, 2012) (approving PAGA settlement payment of $15,000 to LWDA, 2.1% of settlement). And in Nordstrom Commission Cases, 186 Cal. App. 4th 576, 589 (2010), where there was a basis to dispute that any penalty was owed, the Court of Appeal affirmed a class-wide settlement that apportioned zero dollars to PAGA claims. 458 O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1135 (N.D. Cal. 2016) (rejecting proposed class settlement that, in allocating $1 million to PAGA penalties, would give a 99.9% discount off PAGA recovery while giving only a 90% discount off non-PAGA recovery).
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