106 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com stated that while PAGA actions need not be brought as class actions, they can be — though this is now up for debate.514 Arias raised many questions. For example, if a plaintiff were to pursue a meal period class action as well as a derivative PAGA action for penalties, and a trial court denied certification of the case on the ground that individualized issues predominate as to whether different employees experienced meal period violations, could the case proceed nonetheless on a representative basis? Presumably, this would require that the plaintiff individually prove each employee’s claim to meal period violations, but if that could be done in a manageable manner, the court likely would have certified a class. If it required each aggrieved employee individually to prove a violation, would each of possibly hundreds of such employees be required to appear and testify? And if they failed to do so, would that provide a basis for the court to rule against them on the merits? The most sensible reading of Arias is not that it endorsed the notion that every action for Labor Code civil penalties can proceed collectively without class certification, but rather that it is not always necessary to use class action procedures. In cases where the violation can be proven through records or some other collective mechanism (e.g., a minimum wage violation that could be proven by reference to payroll records), an employee could prove it on behalf of a group of aggrieved employees without the need to obtain class certification. However, where individualized issues predominate, courts may dismiss PAGA claims, or substantially reduce their scope on grounds of manageability.515 E. Whether PAGA Claims Can Be Stricken As Unmanageable Although class certification requirements do not apply to PAGA actions, employers have sought to strike PAGA claims on the basis that the predominance of individualized issues would make trial “unmanageable.” The manageability argument is based on courts’ inherent authority to control litigation pending before them.516 514 Arias, 46 Cal. 4th at 981 n.5 (“Actions under the Labor Code Private Attorneys General Act of 2004 may be brought as class actions.”). However, the Ninth Circuit recently held that PAGA actions cannot be maintained as class actions. Canela, 971 F.3d at 854 (“[T]he question is whether a PAGA cause of action could have ever, as a matter of law and without any need for discovery into the facts, been filed as a class action. On the face of the Complaint, we hold that it could not have been.”). The Ninth Circuit described Arias’ language as dicta and added that the California Supreme Court’s decision in Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020) “emphasized that a PAGA cause of action cannot be a class action.” Canela, 971 F.3d at 855. Yet, the Ninth Circuit’s description of Reins is unpersuasive, because Reins does not expressly hold that PAGA claims cannot be maintained as class actions. 515 See Valadez v. CSX Intermodal Terminals, Inc., 298 F. Supp. 3d 1254 (N.D. Cal. Mar. 27, 2018) (holding that whether drivers were misclassified as independent contractors required too many individualized issues so as to render the drivers’ representative PAGA claims unmanageable); Brown v. American Airlines, 2015 WL 6735217 (C.D. Cal. Oct. 5, 2015) (refusing to strike PAGA allegations on ground that PAGA representative actions must meet Rule 23 standards, but holding that some PAGA claims were unmanageable and therefore could not proceed on representative basis). 516 Bauguess v. Paine, 22 Cal. 3d 626, 635 (1978); Western Steel & Ship Repair, Inc. v. RMI, Inc., 176 Cal. App. 3d 1108, 1116-1117 (1986) (describing the “inherent power of the superior court—and of courts generally—to control litigation before it, to prevent abuse of its process, and to create a remedy for a wrong even in the absence of specific statutory remedies”); Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1376 (1992) (discussing the inherent authority of California courts, both statutory and non-statutory). A Court’s inherent power entitles it to exercise reasonable control over litigation proceedings to ensure orderly administration of justice. Hays v. Superior Court in and for Los Angeles County, 16 Cal. 2d
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