154 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com 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). 424 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). 425 Lab. Code § 2699(f)(2)(B). 426 Lab. Code § 2699(i). 427 Lab. Code § 2699(g)(1). 428 Lab. Code § 2699(g)(2). 429 Lab. Code § 2699(h). 430 Lab Code § 2699(f)(2)(A)(ii). 431 Lab. Code § 98.6(a). 432 Lab. Code § 2699(c)(1). 433 Id. 434 Lab. Code § 2699(p). 435 Lab. Code § 2699(g)–(i). 436 Lab. Code § 2699.3(c)(2). 437 Lab. Code § 2699(e)(1). 438 Lab. Code § 2699(v). 439 Lab. Code §§ 2699(l), 2699.3(a)(2)(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)). 440 Lab. Code § 2699.3(a)(2)(A). 441 Id. 442 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, 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, 3 Cal. 5th at 545-46 (“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.”). 443 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 claim referred 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).See also Ibarra v. Chuy & Sons Labor, Inc., 102 Cal. App. 5th 874 (2024) (concluding PAGA notice sufficiently alleged Labor Code violations against four named defendants and sufficiently identified the aggrieved employees under Labor Code section 2699.3(a)(1)(A); “Significantly, the statute does not specify that ‘aggrieved employees’ be defined in a particular way.”). 444 Rojas-Cifuentes v. Superior Ct., 58 Cal. App. 5th 1051, 1059-61 (2020). 445 Caliber Bodyworks, Inc. v. Superior Ct., 134 Cal. App. 4th 365 (2005). disapproved on other grounds in ZB, N.A. v. Superior Ct., 8 Cal. 5th 175, 195-96 (2019). See also Dunlap v. Superior Ct. (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). 446 Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1200 (2008).See also Hutcheson v. Superior Ct., 74 Cal. App. 5th 932 (2022) (reversing summary judgment that barred substitute plaintiff from recovering PAGA penalties for alleged penalties that occurred before filing of amended complaint; holding that the relation-back doctrine may apply in PAGA cases: the substitute plaintiff can assert claims
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