148 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 405 The named plaintiffs, debtors of the defendant, were suing for surreptitious telephone monitoring but discovered that they themselves were never monitored; only others were. CashCall, Inc., 159 Cal. App. 4th at 279. 406 Id. at 292-93. For discussion of how California favors the interests of class actions, as represented by plaintiffs’ lawyers, over the privacy interests of employees, see § 4.10. 407 Lab. Code § 2699(i). 408 Lab. Code § 2699.3(a)(2)(A); Hargrove v. Legacy Healthcare, Inc., 80 Cal. App. 5th 782, 792 (2022), review denied (Oct. 12, 2022) (“[A] PAGA action is subject to a one-year statute of limitations.”) (quoting Hutcheson v. Superior Ct., 74 Cal. App. 5th 932, 939 (2022)). 409 Lab. Code § 2699.3(a)(2)(A). 410 This has since changed with the U.S. Supreme Court’s June 15, 2022, ruling in Viking River Cruises v. Moriana, 142 S. Ct. 1906, 1924 (2022), wherein the Court held that employers are entitled to enforce arbitration agreements insofar as they mandate arbitration of a plaintiff’s individual PAGA claim. The California Supreme Court upheld the enforcement of arbitrating individual PAGA claims in Adolph v. Uber Techs., Inc., 14 Cal. 5th 1104 (2023). 411 State of California Department of Industrial Resources, Private Attorneys General Action (PAGA) Case Search, https://cadir.my.salesforcesites.com/PagaSearch (last visited March 22, 2024). 412 Id. 413 Crestwood Behavioral Health, Inc. v. Superior Ct., 60 Cal. App. 5th 1069, 1076 (2021). 414 Lab. Code §§ 2698-2699.8. 415 PAGA establishes civil penalties for all Labor Code provisions “except those for which a civil penalty is specifically provided.” Lab. Code § 2699(f). 416 An “aggrieved employee” is one whom the alleged violator employed and against whom an alleged violation was committed. Lab. Code § 2699(c). 417 As originally enacted, PAGA split the money collected three ways: 50% to the California General Fund, 25% to the LWDA, and 25% to the aggrieved workers. As amended, PAGA now sends the State’s 75% portion to the LWDA for labor law enforcement and education. Lab. Code § 2699(i). Section 2699 does not affect exclusive remedies for workers’ compensation injuries. Lab. Code § 2699(k). 418 Lab. Code § 2699(g)(1). 419 Lab. Code § 2699(h). 420 Arias v. Superior Ct., 46 Cal. 4th 969, 986 (2009) (quoting People v. Pac. Land Rsch. Co., 20 Cal. 3d 10, 17 (1977)). 421 Lab. Code § 2699(f)(2). 422 Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1209 (2008). Citing Amaral, a federal district court stated: “California law is clear that a subsequent violation level applies only to violations after the employer is on notice that its continued conduct is unlawful. Until notified that it is violating a Labor Code provision (whether or not the commissioner or court chooses to impose penalties), the employer cannot be presumed to be aware that its continuing underpayment of employees is a violation subject to penalties.” Steenhuyse v. UBS Fin. Servs., Inc., 317 F. Supp. 3d 1062, 1067-68 (N.D. Cal. 2018) (citations and internal quotation marks omitted). 423 However, the Ninth Circuit held that until an employer is “notified by the Labor Commissioner or any court that it was subject to the California Labor Code[,]” then employers cannot be “subject to heightened penalties for any labor code violation that occurred prior to that point.” Bernstein v. Virgin Am., Inc., 3 F.4th 1127, 1144 (9th Cir. 2021). 424 Lab. Code § 98.6(a). 425 Lab. Code §§ 2699(h), 2699.3(a)(1)(A); Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 835 (2018) (pre-filing notice and exhaustion requirement is critical to PAGA actions, because “[p]roper notice under section 2699.3 is a ‘condition’ of a PAGA lawsuit”) (quoting Williams v. Superior Ct., 3 Cal. 5th 531, 545 (2017)). 426 Lab. Code § 2699.3(a)(2)(A). 427 Id. 428 Lab. Code §§ 2699(d), 2699.3(c)(2)(A). 429 Lab. Code § 2699.3(a)(1)(A); Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 59 (2019) (“Before bringing a PAGA action, an aggrieved employee must give the LWDA written notice of the facts and theories supporting the Labor Code Violations.”); Williams v. Superior Ct., 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.”); Culley v. Lincare Inc., 236 F. Supp. 3d 1184, 1193 (E.D. Cal. 2017) (“[N]otice to the LWDA ‘requires an exceedingly detailed level of specificity.’”) (citation omitted). See, e.g., Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 837 (2018) (holding the “[n]otice was a string of legal conclusions that parroted the allegedly violated Labor Code provisions” and “did not state facts and theories supporting the alleged violations not implied by reference to the Labor Code”); Wyland v. Berry Petroleum Co., LLC, 2019 WL 5079562, at *3 (E.D. Cal. Oct. 10, 2019) (dismissing plaintiff’s rest break under PAGA because plaintiff “merely mimicked the statutes allegedly violated and f[e]ll short of PAGA’s requirement that the aggrieved employee provide the LWDA with specific facts and theories supporting the plaintiff’s allegations”); Sinohui v. CEC Ent., Inc., 2016 WL 3406383, at *4 (C.D. Cal. June 14, 2016) (dismissing plaintiff’s PAGA claim with prejudice because the “letter provides nothing more than a ‘string of legal conclusions with no factual allegations or theories of liability to support them.’”); Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 WL 5680310, at *4 (C.D. Cal. Sept. 25, 2015) (“The exceedingly detailed 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,
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