Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 105 Finally, even if it is theoretically possible to obtain an award of civil penalties on top of statutory penalties for the same violation, courts may exercise discretion not to award double penalties pursuant to Labor Code section 2699(e)(2), which allows a court not to award a penalty where doing so would be “unjust, arbitrary and oppressive, or confiscatory.” For example, in Carrington v. Starbucks,510 out of a total of $70 million in potential penalties, the trial court awarded only $150,000 in light of the employer’s “good faith attempts” to comply with meal break obligations and the fact that the violations were minimal. D. Pursuing PAGA Claims Collectively Without Class Certification PAGA provides very little procedural guidance as to how an “aggrieved employee” is to seek penalties on behalf of other aggrieved parties. Given that the statute does not require that the other “aggrieved parties” consent to a suit being brought on their behalf, a dispute arose whether a plaintiff seeking to sue under PAGA on behalf of aggrieved parties who did not join the action as parties would need to satisfy the requirements for class certification under Code of Civil Procedure section 382. The California Supreme Court answered no in Arias v. Superior Court, holding there is no requirement that a plaintiff seeking to sue on behalf of other aggrieved employees under PAGA must first obtain class certification.511 Rather, the PAGA plaintiff stands in the shoes of the State of California and may seek to recover penalties in essentially the same manner as the LWDA, which may pursue penalties against an employer on behalf of employees who do not expressly consent to the LWDA’s efforts.512 If an employee can establish that a violation affects a group of aggrieved employees, then he may prove his case, recover the penalties, and the result of the case will be res judicata (i.e., precluding litigation of the claim) as to the Labor Commissioner and the “aggrieved employees” on whose behalf the action was brought.513 Arias also 510 Carrington v. Starbucks, 30 Cal. App. 5th 504, 529 (2018). 511 Arias v. Superior Court, 46 Cal. 4th 969, 985 (2009).; see also Henderson v. JP Morgan Chase Bank, 2013 WL 12126772, at *5-6 (C.D. Cal. July 10, 2013) (affirming reasoning in Arias and denying motion to strike PAGA claims even though class certification was denied with respect to the same claims). 512 Furthermore, the Court of Appeal held that the PAGA plaintiff need only have suffered one type of PAGA violation, and may sue on behalf of all “aggrieved employees” who experienced all types of violations, including those the plaintiff never was subject to. Huff v. Securitas Security Services, Inc., 23 Cal. App. 5th 745 (2018). However, at least one federal district court has held that a PAGA plaintiff could not sue on behalf of other aggrieved employees because she could not provide evidence of Labor Code violations against anyone other than herself. Davidson v. O’Reilly Auto Enterprises, LLC, 2018 WL 3359681, at *3 (C.D. Cal. June 5, 2018) (“[B]ecause Davidson cannot bring a PAGA claim as a single aggrieved employee, and because she cannot show evidence of Labor Code violations against ‘aggrieved employees’ other than herself, Davidson cannot prevail on her PAGA claim as a matter of law.”). 513 Arias, 46 Cal. 4th at 985-86. The California Supreme Court, the Ninth Circuit, and federal district courts have all held that PAGA actions are not subject to class action requirements. Id. at 975 (“We hold that an employee who, on behalf of himself and other employees, sues an employer under the unfair competition law [] for Labor Code violations must satisfy class action requirements, but that those requirements need not be met when an employee's representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004”); Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122 (9th Cir. 2014) (“we conclude that PAGA actions are also not sufficiently similar to Rule 23 class actions”); Magadia v. Wal-Mart Assocs., Inc., 319 F. Supp. 3d 1180, 1187 (N.D. Cal. 2018) (“Because the plaintiff is standing in the shoes of a government agency instead of a class, nearly ‘every court to reach the issue in this district, ha[s] found that representative PAGA claims need not be certified under Rule 23 to proceed.’”).
RkJQdWJsaXNoZXIy OTkwMTQ4