100 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com B. Requirement to Exhaust Administrative Remedies Before a PAGA plaintiff can sue, they must provide written notice to the employer and the LWDA of the particular Labor Code violation(s) for possible investigation. The notice must contain “the specific provisions of [the Labor Code] alleged to have been violated, including the facts and theories to support the alleged violation.”480 To allow the PAGA plaintiff to bring a claim on behalf of other employees, the notice need not refer to “other employees;” however, it cannot use words such as “my” that would suggest the claim applies solely to the plaintiff.481 Failure to comply with this notice requirement within one year of the violation bars the suit.482 This administrative exhaustion requirement is not a mere formality. Simply parroting legal conclusions in a notice, without providing sufficient factual allegations or theories of liability, does not satisfy the administrative remedy requirement, because it fails to provide the LWDA a meaningful opportunity to assess alleged violations for possible enforcement action or provide adequate notice to employers.483 480 Lab. Code §§ 2699(a), 2699(g)(1), and 2699.3. 481 Compare Santos v. El Guapos Tacos, LLC, 72 Cal. App. 5th 363, 372 (2021) (“We do not see how a general reference to ‘a group of others’ or to ‘other aggrieved employees’ is necessary to inform the LWDA or the employer of the representative nature of a PAGA claim. While we appreciate that uniquely individual claims would not satisfy the statute, a prefiling notice is not necessarily deficient merely because a plaintiff fails to state that she is bringing her PAGA claim on behalf of herself and others.”), with Khan v. Dunn-Edwards Corp., 19 Cal. App. 5th 804, 809 (2018) (“Because his notice expressly applied only to him, it failed to give the Labor and Workforce Development Agency an adequate opportunity to decide whether to allocate resources to investigate [the plaintiff’s] representative action.” Accordingly, the plaintiff “failed to give fair notice of the individuals involved, he failed to comply with the administrative requirement, and the trial court properly granted summary judgment.”). In Khan, the plaintiff’s notice was deficient for purposes of bringing claims on behalf of other employees because it repeatedly used the word “my,” suggesting that the asserted claims were limited to just the plaintiff and not other employees. See Khan, 19 Cal. App. 5th at 807. 482 Moreno v. Autozone, Inc., 2007 WL 1650942, at *4-10 (N.D. Cal. June 5, 2007) (employee who filed lawsuit within one year, but failed to exhaust administrative remedies until more than one year after leaving employment was time-barred from asserting PAGA claims). However, the Court of Appeal recently held that an employee whose own individual claim is time-barred may still pursue a representative claim under PAGA on behalf of other allegedly aggrieved employees. Johnson v. Maxim Healthcare Services, Inc., 66 Cal. App. 5th 924, 929 (2021) (“the main issue posed by the parties on appeal is whether an employee, whose individual claim is time-barred, may still pursue a representative claim under PAGA. Under Kim [v. Reins], 9 Cal. 5th 73, we conclude the answer is yes”; “Johnson alleged she is employed by Maxim and that she personally suffered at least one Labor Code violation on which the PAGA claim is based. … The fact that Johnson's individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip Johnson of her standing to pursue PAGA remedies. … In this sense, we find the fact that Johnson's claim is time-barred places her in a similar situation as a plaintiff who settles her individual claims or dismisses her individual claims to pursue a stand-alone PAGA claim.”). Employers may argue that Johnson is limited to the fact that the plaintiff alleged the violations continued into the applicable limitations period. See id. at 932 (“Johnson has standing to bring the subject PAGA claim. Additionally, she alleged in the operative complaint that Maxim had violated section 432.5 during the applicable statute of limitations, subjecting the company to penalties under PAGA. As such, … Johnson has stated a valid cause of action under PAGA against Maxim.”) There are several trial court-level decisions that have declined to follow Johnson and distinguished its holding. However, binding case law on this distinction remains undeveloped. 483 Alcantar v. Hobart Service, 800 F.3d 1047, 1057 (9th Cir. 2015) (affirming summary judgment on PAGA claim where plaintiff’s notice to LWDA contained only legal conclusions); Archila v. KFC U.S. Properties, Inc., 420 Fed. App’x 667, 669 (9th. Cir. 2011) (letter that “merely lists several California Labor Code provisions” that the plaintiff alleged the defendant violated was insufficient); Gunn v. Family Dollar Stores, Inc., 2016 WL 7030363, at *4 (S.D. Cal. Dec. 2, 2016) (“Factual details implied by the labor code violations are not sufficient to meet PAGA's notice requirement [and] Plaintiff was required to state the ‘facts and theories’ supporting his alleged violations.”); Soto v. Castlerock Farming & Transp., Inc., 2012 WL 1292519, at *7-8 (E.D. Cal. Apr. 16, 2012) (holding PAGA letter to be inadequate to exhaust administrative remedies because it failed to provide “an exceedingly detailed level of specificity” as to the facts and theories to support
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