102 Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) Seyfarth Shaw LLP | www.seyfarth.com the plaintiff had not adequately exhausted her administrative remedies, except as to the wage statement claim.502 The Ninth Circuit has taken a similar stance, holding that “a string of legal conclusions with no factual allegations or theories of liability to support them” is insufficient to provide proper notice to either the LWDA or to the employer.503 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.504 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).505 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.506 The court concluded that the notice’s allegations put the 502 Id. at 829. Brown also found that the plaintiff could not amend her PAGA notice because the limitations period had expired, and neither equitable tolling nor the relation back doctrine applied. Id. at 841. 503 Alcantar v. Hobart Service, 800 F.3d 1047, 1057 (9th Cir. 2015). Some district courts have also followed the reasoning of Alcantar, holding that simply parroting the statute and asserting legal conclusions is insufficient to provide the requisite notice to exhaust administrative remedies for PAGA. See, e.g., Briggs v. OS Rest. Servs., LLC, 2020 WL 6260001, at *7 (C.D. Cal. Aug. 26, 2020) (“The PAGA Notice contains no facts specific to any of Defendants' alleged Labor Code violations, and does not present any information about Defendants' allegedly unlawful employment policies and practices. … Plaintiffs PAGA Notice does not specifically define the scope of the aggrieved employees or allege what unreimbursed expenses Defendants' current and former employees incurred. Indeed, as discussed above, the PAGA Notice fails to provide any specific factual allegations to support any of Plaintiffs claims under the Labor Code.”); De Paz v. Wells Fargo Bank, N.A., 2019 WL 8752051, at *12 (C.D. Cal. Dec. 10, 2019) (summary judgment granted; “as for her claims for improper recordkeeping and failure to pay timely wages, Plaintiff merely asserts insufficient legal conclusions. In her letter's final two sections, Plaintiff recites the statutory elements of her claims and includes only a sentence at the end parroting those elements. … Because the Court concludes that Plaintiff did not exhaust her administrative remedies as to 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). 504 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.”) 505 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’ LWDA notice 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”). 506 Reyes v. Sky Chefs, Inc., 2021 WL 308611 (N.D. Cal. Feb. 1, 2021).
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