Judge David S. Cunningham, Case BC692644 2022-12-05 Tentative Ruling

Moving Party: Todd McNulty, James Radvany, Bryan Smith, and Gary Spinner (jointly “Individual Defendants”)

It is unnecessary to decide the Individual Defendants’ second motion to quash given that Judge Ann Jones denied their first motion to quash, and the Court of Appeal affirmed.

If the Court considered the merits, the Court would be inclined to grant the second motion to quash because Plaintiff fails to meet his burden under the “alter ego” doctrine.

The third amended complaint (“TAC”) alleges that Defendants failed to provide compliant wage statements.[1] Plaintiff seeks to represent a class of current and former employees.[2]

On 7/18/18, Judge Jones granted the Individual Defendants’ first motion to quash.

On 7/9/20, the Court of Appeal affirmed Judge Jones’s ruling, including her denial of jurisdictional discovery.

On 8/5/21, Judge Jones decided Infinity and S4J’s demurrer to the second amended complaint. Her ruling refers to the Individual Defendants as “since-dismissed[.]” (8/5/21 Ruling Re: Demurrer to Second Amended Complaint, p. 1.)

Plaintiff fails to cite a subsequent order permitting Plaintiff to readd the Individual Defendants.

Nor does Plaintiff cite case law or other authority allowing a dismissed plaintiff to be readded following a successful motion to quash.

On 4/21/22, Plaintiff filed the TAC. It contains two causes of action, one under Labor Code section 226 and one under the Private Attorneys General Act. Both causes of action are asserted against the Individual Defendants.

Assuming arguendo that Plaintiff contends he received permission to readd the Individual Defendants by virtue of the order granting leave to file the TAC, the Court disagrees. The Individual Defendants did not oppose the motion for leave, presumably because they were already dismissed. While Infinity, S4J, and Lyneer did oppose, the Court noted that they did not have standing to oppose on the Individual Defendants’ behalf. Bottom line, the Court granted the motion for leave on other grounds without rendering a decision on whether it was right for Plaintiff to readd the Individual Defendants. It follows that the grant of leave to file the TAC should not be interpreted as permission to readd them; the Court simply declined to address the issue because the Individual Defendants did not file an opposition at that time.

Judge Jones’s ruling and the Court of Appeal’s decision control. The law of the case is that the Court lacks jurisdiction over the Individual Defendants, making the instant motion unnecessary to decide.

Moreover, Plaintiff’s request for this Court to find jurisdiction is, effectively, a disguised, improper, untimely request for reconsideration under Code of Civil Procedure section 1008.

And even if the Court treats the request as a sua sponte request for reconsideration, it is unavailing since Plaintiff relies on new evidence that was not presented to Judge Jones. (See Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 9:327.5a [requiring sua sponte reconsideration to be “‘based on the evidence originally submitted,’ not based on new evidence”], emphasis in original.)

As a matter of guidance, the Court notes that it would be inclined to find Plaintiff’s showing insufficient to meet his burden.

“For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile[.]” (Daimler AG v. Bauman (2014) 571 U.S. 117, 137 (“Daimler”), emphasis added.)

Plaintiff fails to establish general jurisdiction. The evidence shows that the Individual Defendants are domiciled outside California and do not have property or assets in California. (See McNulty Decl., ¶¶3-5; see also Radvany Decl., ¶¶ 3-5; Smith Decl., ¶¶ 3-5; Spinner Decl., ¶¶ 3-5.)

“When determining whether specific jurisdiction exists, courts consider the ‘relationship among the defendant, the forum, and the litigation.’” (Halyard Health, Inc. v. Kimberly-Clark Corp. (2019) 43 Cal.App.5^th 1062, 1070.) “[C]ourts focus on the nature and quality (not the quantity) of defendant’s activity in the forum state.” (Weil & Brown, supra, at ¶ 3:240.) “[S]ingle or occasional acts of the corporate agent in a state” may be adequate as long as the lawsuit relates to the “in-state activity.” (Daimler, supra, 571 U.S. at 127; see also Weil & Brown, supra, at ¶ 3:240.1 [“Provided a ‘substantial connection’ with the forum is created thereby, even a single act may support specific personal jurisdiction over a nonresident.”].)

* purposeful availment – the defendant made purposeful contacts with the forum;

* relatedness – the litigation arises out of or relates to the defendant’s forum contacts; and

* reasonableness – the forum’s “assertion” of specific jurisdiction “comport[s] with ‘fair play and substantial justice[.]’” (Halyard Health, supra, 43 Cal.App.4^th at 1070.)

Judge Jones and the Court of Appeal previously found that Plaintiff failed to demonstrate specific jurisdiction. (See Michitsch Decl., Exs. A, B.)

In his opposition brief, Plaintiff does not mention specific jurisdiction or address the elements. He makes no effort to show specific California contacts by the Individual Defendants that relate to or arise out of his causes of action. (See, e.g., Opposition, pp. 13-15 [merely discussing the “alter ego” doctrine, arguing that Infinity’s and S4J’s California contacts should be attributed to the Individual Defendants].) His burden is unsatisfied.

Plaintiff contends the Individual Defendants are alter egos of Infinity and S4J.

The parties agree that “personal jurisdiction may attach if the plaintiff proves a foreign defendant is the alter ego of a defendant over which a court has jurisdiction.” (Motion, p. 7; see also Opposition, p. 13; Colt Studio, Inc. v. Badpuppy Enterprise (C.D. Cal. 1999) 75 F.Supp2d 1104 1111 [“If the corporation is the ‘alter ego’ of the individual defendants so as to justify disregard of the corporate entity, then a finding of personal jurisdiction over the corporation will support a finding of personal jurisdiction over the individuals”]; Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 210 [“[W]here a corporation is the alter ego of the stockholders so as to justify disregard of the corporate entity jurisdiction over the corporation will support jurisdiction over the stockholders”]; Weil & Brown, supra, at ¶ 3:212.1 [discussing “alter ego” jurisdiction in the parent-subsidiary context].)

“Ordinarily a corporation is considered a separate legal entity, distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations.” (Curci Investments, LLC v. Baldwin (2017) 14 Cal.App.5^th 214, 220.) “The same is true of a limited liability company (LLC) and its members and managers.” (Ibid.)

“That legal separation may be disregarded by the courts ‘when [a corporation or LLC] is used [by one or more individuals] to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose.’” (Id. at 221.) “In those situations, the corporation's or LLC's actions will be deemed ‘to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners. [Citations.]’” (Ibid.)

“The alter ego doctrine prevents individuals or other corporations from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds.” (Ibid.) “Before the alter ego doctrine will be invoked in California, two conditions generally must be met.” (Ibid.)

“First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist.” (Ibid.) “Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Ibid.)

Plaintiff fails to satisfy his burden because he fails to prove the second element of the “alter ego” doctrine. As the Individual Defendants point out, Plaintiff only mentions the second element in two conclusory sentences at the end of his opposition brief. (See Reply, p. 10; see also Opposition, p. 15 [stating that (1) “[i]t would be inequitable to uphold the separateness of the LLCs and the Individual Defendants when they did not do so themselves[,]” and (2) “inequity will result if the Court does not pierce the corporate veil”].) He does not identify or analyze any specific inequity that he claims would result. This, alone, is reason enough to grant the motion.

Several factors are to be considered in applying the doctrine; among them are: “‘[c]ommingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses; ... the treatment by an individual of the assets of the corporation as his own; ... the failure to obtain authority to issue stock or to subscribe to or issue the same; ... the holding out by an individual that he is personally liable for the debts of the corporation; ... the failure to maintain minutes or adequate corporate records ...; sole ownership of all of the stock in a corporation by one individual or the members of a family; ... the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization; ... the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation; ... the concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities; ... the disregard of legal formalities and the failure to maintain arm's length relationships among related entities; ... the use of the corporate entity to procure labor, services or merchandise for another person or entity; ... the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another; ... the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions; ... and the formation and use of a corporation to transfer to it the existing liability of another person or entity.’ ... [¶] This long list of factors is not exhaustive. The enumerated factors may be considered ‘[a]mong’ others ‘under the particular circumstances of each case.’”

Plaintiff asserts that Infinity and S4J each do business as Lyneer and “are operationally and functionally one and the same.” (Opposition, p. 7, emphasis deleted.) He claims some Lyneer offices around the country have both Infinity and S4J accounts, and McNulty and Spinner signed all but one of the sample lease agreements for California Lyneer offices that were produced in discovery. (See ibid.)

His showing fails. The fact that McNulty and Spinner signed the sample lease agreements reveals nothing about Radvany and Smith. More importantly, Plaintiff concedes that it is unknown whether the California Lyneer offices – as opposed to out-of-state offices – have both Infinity and S4J accounts. (See ibid.) He also fails to demonstrate that the California offices, if they have both accounts, fail to separate them. (See Reply, pp. 6-7.)

Next, Plaintiff claims Infinity and S4J “were grossly undercapitalized.” (Opposition, p. 7, emphasis deleted.) He contends Infinity and S4J’s combined total capitalization – allegedly $2.3 million – could not cover operating expenses and the guaranteed payments to the Individual Defendants and other members of the LLCs. (See id. at pp. 7-9.)

The Court disagrees. Apparently, Plaintiff’s alleged amount is the initial capitalization amount and fails to account for the companies’ revenues during the relevant time period. (See Reply, pp. 2-3, 7.) Plaintiff fails to establish that the revenues were insufficient to pay the companies’ costs, salaries, etc.

Plaintiff argues that, in 2015, the Individual Defendants personally guaranteed a $35 million line of credit to fund Infinity and S4J’s operations. (See Opposition, pp. 9-10.)

The Court disagrees. The Individual Defendants represent that the bank required personal guarantees because the companies were new. (See, e.g., Reply, p. 4.) “[W]hen a new business is formed, its start-up assets must come from somewhere; they do not materialize from nothing. It is not out of the ordinary for the owner of the new venture to contribute its own funds or property, or obligate itself (directly or as a guarantor) for loans from third parties, for these purposes.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4^th 523, 546.) “That is the essence of an investment, the consideration for which is the ownership interest (such as stock) that the contributor/owner receives in return.” (Ibid.) The Individual Defendants’ involvement “in the initial financing . . . was not conduct outside the normal expectations” vis-à-vis the “alter ego” doctrine. (Ibid.)

Plaintiff contends three of the Individual Defendants – McNulty, Radvany, and Smith – commingled funds with Infinity. (See Opposition, pp. 4-5.)[3]

[T]he only “evidence” presented is Infinity’s return of a portion of capital contributions made, with the last partial return as to McNulty in May 2014, Radvany in Nov. 2014, and Smith in Dec. 2015 (i.e., all 2+ years before this lawsuit’s filing). [Citations.]

Further, Plaintiff (who bears the burden of proof) fails to demonstrate how a partial capital contribution return constitutes a commingling of funds. He provided no evidence these individuals paid personal debts or obligations directly from their capital contribution accounts or any other Infinity account. Moreover, at no time did they draw down their capital contribution accounts to a negative (e.g., using Infinity’s money generated from business operations), further undermining Plaintiff’s contention funds were “commingled.” [Citation.]

Plaintiff unduly tries to equate partial capital contribution returns (and nothing more) to a non-existent “slush” fund that was withdrawn from without regard despite this not occurring and the amounts returned being recorded in each member’s capital contribution account. He also presented no evidence of monies earned by Infinity being directly deposited into personal accounts. [Citation.]

The Court agrees with the Individual Defendants. This factor tends to go against Plaintiff. (See ibid.)

Plaintiff argues that Infinity and S4J disregarded corporate formalities by not keeping corporate minutes. (See Opposition, pp. 5, 6.)

The companies’ operating agreements require minutes to be taken at meetings (see Jusuf Decl., Ex. 5, p. INF_JXD_0007, Ex. 12, p. S4J_JXD_0011), but Plaintiff fails to show which, if any, of the Individual Defendants ordered minutes to not be kept. Who was at the meetings? Who made the decision? Plaintiff’s evidence fails to say. As to this factor, the record is too vague and flimsy to meet Plaintiff’s burden.

The Court also agrees with the Individual Defendants that, on balance, this factor is outweighed by other corporate formalities that Infinity and S4J seemingly did follow. (See Reply, pp. 5, 9.)

Plaintiff claims Infinity and S4J dissipated their assets to “judgment proof” themselves from liability. (Opposition, p. 12, emphasis deleted.) He states that “there could be ‘zero money’ left in Infinity” and “less than $10,000 in cash” in S4J. (Ibid.) He argues that “[s]uch ‘diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors’ is further proof that Infinity and [S4J] are alter egos of these Individual Defendants.” (Ibid.)

The argument is conclusory. Other than deposition testimony regarding the amounts of money that might be left, Plaintiff fails to cite evidence demonstrating actual diversions to the Individual Defendants or directed by the Individual Defendants. (See ibid.)

In the alternative, Plaintiff asks the Court to grant a discovery continuance. (See id. at p. 15.)

The request is denied. “[A] continuance may be denied if there is no showing that discovery would likely produce evidence of additional ‘contacts.’” (Weil & Brown, supra, at ¶ 3:380.) Plaintiff fails to identify such discovery (see Opposition, p. 15) and should not receive, in effect, a third bite at the apple.

[1] “Defendants” include Staff4Jobs, LLC (“S4J”), Infinity Staffing Solutions, LLC (“Infinity”), Lyneer Staffing Solutions, LLC (“Lyneer”), and the Individual Defendants.

[2] Plaintiff filed the case with Yolanda Johnson, but she was dismissed by stipulation and order on 8/4/22.

[3] Plaintiff cites zero evidence indicating that the Individual Defendants commingled funds with S4J. (See Reply, pp. 4-5.)

S4J’s demurrer is sustained with leave to amend as to the second cause of
action, and the motion to strike is moot.

The third amended complaint (“TAC”) alleges that Defendants failed to
provide compliant wage statements.[1] Plaintiff seeks to represent a class of
current and former employees.[2]

On 11/4/22, the Court heard S4J’s demurrer and motion to strike regarding
the first cause of action under Labor Code section 226 and the second cause of
action under the Private Attorneys General Act (“PAGA”). The Court sustained the demurrer as to the
first cause of action with leave to amend and continued the hearing for
supplemental briefing as to the second cause of action.

Here, the Court considers the supplemental briefs. The issue concerns Plaintiff’s use of the
“relation back” doctrine.

On 2/2/18, Plaintiff filed the original
complaint. It asserted one cause of
action under Labor Code section 226 against all Defendants.

On 5/18/18, Plaintiff filed the first amended
complaint (“FAC”). It retained the
section 226 cause of action, added a PAGA cause of action based on the section
226 violations, and added causes of action for breach of contract, negligent
misrepresentation, and professional negligence.
Notably, it did not assert the section 226 and PAGA causes of action
against S4J.

On 9/4/18, Plaintiff filed the second amended
complaint (“SAC”). It asserted the same
five causes of action that the FAC asserted, and, like the FAC, the section
226 and PAGA causes of action were not asserted against S4J.

On 8/5/21, following an appeal, Judge Ann
Jones decided a demurrer to the SAC. She
overruled in part and sustained in part.

On 4/21/22, Plaintiff filed the TAC. It contains two causes of action, one under
section 226 and one under PAGA. Both
causes of action are asserted against S4J.

Plaintiff filed a
pre-suit PAGA notice on 2/2/18. (See
TAC, ¶ 63 and Ex. A, p. 1; see also id. at ¶¶ 65-66 [alleging that (1) civil
penalties are recoverable under PAGA because Defendants violated Labor Code
section 226(a)(8), and (2) Defendants “caused a total of 178,329 incompliant
wage statements to be furnished to a total of 15,172 current and former
employees during the period from [2/2/17] to [3/1/18]”].)

However, he did not
assert the PAGA cause of action against S4J until April 2022 in the TAC.

(11/4/22 Ruling Re: Demurrer and Motion to Strike, pp. 3, 5,
emphasis in original.)

Multiple paragraphs of Plaintiff’s
pre-suit notice name and discuss S4J in connection with the alleged violations
of Labor Code section 226(a)(8). (See
TAC, Ex. A, pp. 1-3.) It refers to S4J
as a “Defendant.” (Ibid.) These facts tend to support applying the
“relation back” doctrine.

Nevertheless, S4J
contends the doctrine is inapplicable because the PAGA claim and the Labor Code
claim in the original complaint involve different injuries. (See Demurrer, pp. 12-15 [arguing that the
PAGA claim belongs to the state and concerns injuries to the state, not
individuals]; see also Reply, pp. 7-9 [same].)

Prior to PAGA’s
enactment, “only the state could sue for civil penalties.” (Kim v. Reins International California,
Inc. (2020) 9 Cal.5^th 73, 80.)
“To facilitate broader enforcement, the Legislature enacted PAGA,
authorizing ‘aggrieved employees’ to pursue civil penalties on the state’s
behalf.” (Id. at 81.) “Of the civil penalties recovered, 75 percent
goes to the [LWDA], leaving the remaining 25 percent for the ‘aggrieved
employees.’” (Ibid.)

“A PAGA claim is
legally and conceptually different from an employee’s own suit for damages and
statutory penalties.” (Ibid.) “An employee suing under PAGA ‘does so as the
proxy or agent of the state’s labor law enforcement agencies.’” (Ibid., emphasis in original.) “Every PAGA claim is ‘a dispute between an
employer and the state.’” (Ibid.,
emphasis in original.)

“Moreover, the civil
penalties a PAGA plaintiff may recover on the state’s behalf are distinct from
the statutory damages or penalties that may be available to employees suing for
individual violations.” (Ibid.) “Relief under PAGA is designed primarily to
benefit the general public, not the party bringing the action.” (Ibid.)
“‘A PAGA representative action is therefore a type of qui tam action,’
conforming to all ‘traditional criteria, except that a portion of the penalty
goes not only to the citizen bringing the suit but to all employees affected by
the Labor Code violation.’” (Ibid.) “The ‘government entity on whose behalf the
plaintiff files suit is always the real party in interest.’” (Ibid.)

“Only an aggrieved
employee has PAGA standing. (Ibid.,
emphasis in original.) “An ‘aggrieved
employee’ is defined as ‘any person who was employed by the alleged violator and
against whom one or more of the alleged violations was committed.’” (Ibid., emphasis added.) He or she is authorized to file a
representative claim “on behalf of himself or herself and other current and
former [aggrieved] employees[.]” (Cal.
Labor Code § 2699, subd. (g)(1).)

These rules appear
to go against S4J’s position. Yes, a
PAGA action is technically brought on behalf of the state, but the plaintiff
must be an aggrieved employee – i.e., an employee harmed by the underlying
Labor Code violation. And a portion of
the recovered penalties must go to the plaintiff and the other aggrieved
employees. It seems clear that the
state, the plaintiff, and the other aggrieved employees are all injured parties
under the statute, and the underlying Labor Code violation is the cause of the
injuries. In terms of the “relation
back” doctrine, the result, likely, is that Plaintiff’s PAGA claim is based on
the same facts, injuries, and instrumentality that the original complaint’s
Labor Code claim is based on.

But another issue
needs to be addressed. The original
complaint asserted the Labor Code cause of action against S4J. (See Complaint, ¶¶ 1, 25-30.) Plaintiff knew S4J’s identity (and the
facts?) when he filed the pre-suit notice and added the PAGA cause of action in
the FAC. (See TAC, Ex. A, pp. 1-3.)
Why did he wait until filing the TAC to name S4J in the PAGA claim? Should his apparent knowledge and delay bar
his use of the “relation back” doctrine?
The Court finds that the hearing should be continued for supplemental
briefing (five-page briefs) to answer these questions.

Plaintiff contends he did not
name S4J as a Defendant in the FAC and SAC because he “was unaware of the facts
regarding the interplays among the various LLCs, until those facts were
revealed at the deposition of S4J” on 11/17/21.
(Plaintiff’s Supp. Brief, p. 1.)
He asserts that, “in filing the FAC and the SAC, [he] was under the
impression that S4J was set up to be an outsourced sales department of Infinity
in a similar fashion that Ciera Staffing was set up to be an outsourced payroll
department of Infinity.” (Id. at p. 2.)[3] He claims he was under the wrong impression
because:

* “the ‘Lyneer
Staffing Solutions’ office in Bakersfield, where Plaintiff went to obtain
temporary employment, was indisputably operated by Infinity” (ibid.); and

* “counsel for
S4J and Infinity represented to Plaintiff’s counsel that the name ‘Lyneer’ was
referring to S4J, that S4J was not the employer of the temporary employees, but
conceded that Ciera Staffing was merely an ‘employer of record’ of those
employees” (id. at pp. 2-3).

The Court disagrees. Plaintiff fails to cite evidence showing that
he held such an impression prior to November 2021 (see ibid.), and some of his
evidence appears to disprove his assertion.
For example, the letter from defense counsel to Plaintiff’s counsel is
dated 12/22/16. (See Jusuf Supp. Decl.,
Ex. 5.) Despite the letter’s
representations, Plaintiff named S4J as a separate Defendant in the 2/2/18 original complaint, which tends to
demonstrate that he did not believe the representations. (See Complaint, ¶¶ 1, 25-30.)[4] S4J’s showing further demonstrates his lack of
belief. (See S4J’s Supp. Reply, pp.
2-4.) Bottom line, Plaintiff was not
ignorant; he knew S4J’s identity when he filed the original complaint, he knew
enough details to allege the underlying section 226 cause of action against S4J
at that time, he called S4J a “Defendant” in the pre-suit PAGA notice, and even
the FAC and the SAC contain allegations about S4J’s involvement. It follows that his delay was unjustified,
and the demurrer should be sustained.
(See, e.g., Okoro v. City of Oakland (2006) 142 Cal.App.4^th
306, 313 [instructing that the “relation back” doctrine “can be defeated if the
[Doe] defendant shows that the plaintiff ‘was dilatory in amending his
complaint’”]; see also, e.g., Organizacion Comunidad De Alviso v. City of
San Jose (2021) 60 Cal.App.5^th 783, 795 [finding the doctrine
inapplicable where the plaintiff had constructive notice of the Doe defendant’s
identity].)[5]

The Court grants leave to amend. PAGA’s limitations period is one year. (See Banke & Segal, Cal. Prac. Guide:
Civ. Proc. Before Trial Stat. of Limitations (The Rutter Group 2022) ¶
1:54.10.) The purported liability period
is 2/2/17 to 3/1/18, more than one year before Plaintiff filed the TAC. (See TAC, ¶ 66.) The Court is willing to give Plaintiff a
chance to attempt to allege violations within the limitations period.

[1]
“Defendants” include S4J, Infinity Staffing Solutions, LLC (“Infinity”), Lyneer
Staffing Solutions, LLC (“Lyneer”), and “Individual Defendants” Todd McNulty, James Radvany, Gary Spinner,
and Bryan Smith.

[2]
Plaintiff filed the case with Yolanda Johnson, but she was dismissed by
stipulation and order on 8/4/22.

[3] Ciera
Staffing’s full name is Ciera Staffing, LLC.

[4] The
lease for the Bakersfield office is dated 4/1/15. It sets a two-year lease period that ended
before Plaintiff filed the original complaint against S4J. (See Jusuf Supp. Decl., Ex. 4.)

[5] In
terms of delay, the situation here is worse than a Doe amendment. To reiterate, Plaintiff had actual notice of
S4J throughout the litigation, he named and discussed S4J in multiple
documents, including the original complaint and the pre-suit PAGA notice, and
he alleged the section 226 cause of action against S4J – the basis for the PAGA
claim – at the outset.