Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 103 employer.”498 If the employer does not cure and the LWDA does not pursue the matter itself, then the employee may sue.499 Recently, the Court of Appeal has held that the relation-back doctrine may apply in PAGA cases. In Hutcheson v. Superior Court,500 the trial court granted summary judgment to an employer who argued that a substitute plaintiff was barred from recovering PAGA penalties for alleged violations that occurred before the filing of an amended complaint that substituted him as plaintiff, even though the original complaint brought by the original plaintiff sought the same penalties for the same violations. The Court of Appeal reversed, holding that the relation-back doctrine may apply in PAGA cases: the substitute plaintiff can assert claims going back to the filing of the original complaint if “the amended PAGA complaint … rest[s] on the same general set of facts, involve[s] the same injury, and refer[s] to the same instrumentality as the claims in the original complaint filed by” the original plaintiff.501 C. Scope of the “Civil Penalty” Provisions After the Legislature required an employee to exhaust administrative remedies before seeking penalties under PAGA, the question arose whether this administrative-remedies requirement applied to all statutes covered by PAGA. More specifically, Section 2699.3 sets forth a long list of particular statutes that are purportedly subject to the administrative remedy. Included on this list are several statutes that provided for penalties recoverable by individual employees even before the passage of PAGA (e.g., Labor Code section 203, which provides for waiting time penalties where employers willfully fail to pay terminating employees all wages owed to them). Employers began to argue that no employee could sue to recover penalties under any statute listed in Section 2699.3 without first exhausting administrative remedies. The 2004 decision in Caliber Bodyworks v. Superior Court502 clarified the scope of the requirement to exhaust administrative remedies under PAGA. The Court of Appeal held that the requirement to exhaust administrative remedies applies only to actions seeking to recover a “civil penalty,” as distinguished from actions that could be advanced by individuals to recover “statutory penalties,” such as Labor Code section 203. In short, the Court held that if a plaintiff seeks to recover penalties that were available under a statute and recoverable by an individual before PAGA’s passage, then the employee can still recover such statutory penalties without exhausting administrative remedies under PAGA.503 498 Lab. Code §§ 2699(d), 2699.3(c)(2)(A). 499 Lab. Code § 2699.3(a). If the LWDA does decide to cite the employer for a violation, then a private action by an “aggrieved employee” cannot be brought based on the same violation. Lab. Code § 2699(h). 500 Hutcheson v. Superior Ct., 74 Cal. App. 5th 932 (2022). 501 Id. at 945. 502 Caliber Bodyworks v. Superior Court, 134 Cal. App. 4th 365 (2005). 503 Id. at 377-78. The Court of Appeal reached the same result again in Dunlap v. Superior Court, 142 Cal. App. 4th 330 (2006).
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