102 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com Likewise, a LWDA notice that alleges a violation based on one theory of liability is insufficient to allow a plaintiff to pursue in a lawsuit the same violation based on a different theory of liability.492 More recent decisions, however, have permitted plaintiffs to move forward with PAGA claims after having submitted factually sparse LWDA notices. For example, in Rojas-Cifuentes v. Superior Court, the Court of Appeal held that the plaintiff’s LWDA notice was sufficient, even though it was devoid of facts or theories supporting some of the alleged violations (but included some facts and theories for other alleged violations).493 More recently, a federal district court addressed the sufficiency of an LWDA notice with slightly more detailed allegations, finding that the plaintiff exhausted the claims at issue.494 The court concluded that the notice’s allegations put the defendant and the LWDA on notice of the claims and met the “nonfrivolous” standard applicable to civil filings under California law.495 Notices submitted to the LWDA on or after July 1, 2016, are subject to a 65-day waiting period so that the LWDA may notify the employer and the aggrieved employee whether it intends to investigate the alleged violation.496 In connection with alleged violations of certain very limited enumerated Labor Code provisions, the employer has an opportunity to cure the violation within 33 days of the employee’s notice.497 In particular, a 2015 amendment allows employers to cure any wage statement violations pertaining to the requirements for providing “the inclusive dates of the period for which the employee is paid” and “the name and address of the legal entity that is the these two claims, summary judgment is appropriate as to them”); Mitchell v. Corelogic, Inc., 2019 WL 7172978, at *7 (C.D. Cal. Nov. 20, 2019) (granting motion for judgment on the pleadings; “the First Letter contains a “string of legal conclusions” and does not contain any factual allegations or theories to support them. … Indeed, the letter simply states that Defendant has a ‘consistent policy’ of violating California laws regarding overtime, wage statement, and waiting time penalty claims. This is a simple parroting of the statutes and does not contain even minimal factual allegations.”); Lucas v. Michael Kors (USA), Inc., 2018 WL 6177222, at *3 (C.D. Cal. May 23, 2018). 492 Uribe v. Crown Bldg. Maint. Co., 70 Cal. App. 5th 986, 1005 (2021), as modified on denial of reh'g (Oct. 26, 2021) (holding that LWDA notice, which alleged employer failed to reimburse employees for shoes and uniform maintenance, could not support PAGA claim for failure to reimburse for cell phone use because references to cell phone expenses were “omit[ed] entirely” from the notice; “[N]otice regarding ‘shoes’ and ‘uniform’ cannot be stretched to include unreimbursed cell phone use. Uribe’s PAGA notice is devoid of any facts or theories relative to that later claim.”) 493 Rojas-Cifuentes v. Superior Court, 58 Cal. App. 5th 1051 (2020). See also Santos v. El Guapos Tacos, LLC, 72 Cal. App. 5th 363, 366-67 (2021) (plaintiffs’LWDAnotice was adequate when it alleged dates of employment; they were not given “off-duty” breaks, accurate wage statements, or payroll records within 21 days after requesting them in writing; facts detailing why the employer knew of the violations; and “overtime violations based on plaintiffs' pay stubs and wage statements showing ‘an inordinate amount of hours listed as regular hours for a 15-day period.’”); Mays v. Wal-Mart Stores, Inc., 354 F. Supp. 3d 1136, 1148 (C.D. Cal. 2019) (LWDA notice was sufficient because “it identifies at least some facts and theories”); Negrete v. ConAgra Foods, Inc., 2018 WL 8193883, at *4 (C.D. Cal. Dec. 28, 2018) (“the notices provided sufficient information for the LWDA to assess the seriousness of the alleged violations and decide whether to allocate scarce resources to an investigation, and for defendants to determine what policies or practices were being complained of and prepare a meaningful response”). 494 Reyes v. Sky Chefs, Inc., 2021 WL 308611 (N.D. Cal. Feb. 1, 2021). 495 Id. (citing Williams v. Superior Court, 3 Cal. 5th 531 (2017)). 496 Lab. Code § 2699.3(a)(2)(B), (D). For notices submitted with the LWDA prior to July 1, 2016, the LWDA had 33 days to notify the employer and the aggrieved employee that it intends to investigate the alleged violation, in which case a private lawsuit cannot proceed. Lab. Code § 2699.3(a) (2) (B) (2015), amended by Lab. Code § 2699.3(a)(2)(B), (D) (2016). 497 Lab. Code §§ 2699(d), 2699.3(c)(2)(A), 2699.5.
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