Judge Jill Feeney, Case Number: BC475210, Date: 2023-08-17 Tentative Ruling

This is an action for unpaid overtime, unpaid minimum wages, non-compliant wage statements, wages not timely paid upon termination, failure to provide seating, PAGA, and violation of Bus. & Prof. Code, section 17200 arising from disputes over Plaintiffs’ employment with O’Reilly Automotive Stores, Inc.

In September 2016, O’Reilly filed a motion to bifurcate trial as to the issue of whether Plaintiff was an “aggrieved employee” with standing to bring a PAGA claim. Plaintiff requested that his individual suitable seating claim be dismissed with prejudice. After the Court entered judgment in favor of O’Reilly on all claims, Plaintiff appealed. The Court of Appeal reversed, ruling that Plaintiff’s voluntary dismissal of his individual seating claim did not address the merits of whether he was aggrieved on that issue under PAGA.

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.)

An appellate decision published during an action’s pendency may be a change of law under section 1008, subdivision (c), and requires a trial court to reconsider its earlier ruling if the decision materially changed the law. (Valdez v. Himmelfarb (2006) 144 Cal.App.4th 1261, 1276.)

The first issue is whether the decision in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 constitutes new law upon which Plaintiff may move for reconsideration. Plaintiff alleges that Adolph held that a PAGA plaintiff retains standing to pursue non-individual claim even if the plaintiff’s own claims are barred by the statute of limitations. Plaintiff argues that under Adolph, there is no basis to split a unified PAGA action specifically to determine PAGA standing because there is no requirement that a plaintiff must prove his individual claims before proceeding to prove PAGA violations committed against other employees. Plaintiff alleges that allegations that a plaintiff is an aggrieved employee are sufficient to show a plaintiff has standing to bring a representative PAGA action.

Aggrieved employees may continue with a PAGA action even if their individual claims are time barred. (Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 929.) Aggrieved employees may also proceed with a PAGA action even if they settled their individual claims. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 84.) Whether a PAGA representative is an aggrieved employee is not determined by the employee’s injury, but by the fact that an employer committed a Labor Code violation against the employee. (Id.) Even when a violation results in no injury and an employee’s individual claims for Labor Code violations against an employer are dismissed, the employee remains an aggrieved employee for the purposes of a PAGA action because the employer committed a Labor Code violation against the employee. (Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, 681.)

A PAGA action may not be split into two claims based on the remedies sought because an individual employee bringing a PAGA claim is vindicating only one particular injury to the public. (Zakaryan v. The Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659, 672 (disapproved of on other grounds by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) In PAGA-only cases where there is no individual claim, an employer may not force an employee to split a PAGA claim into “individual” and “representative” components, with each being litigated in a different forum. (Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 421.)

Consistent with prior case law on the matter, the court in Adolph v. Uber Technologies ruled that even if a court compels a PAGA representative to arbitrate his individual claims, the representative is not enjoined from pursuing the PAGA claim because the arbitrated individual claims remain part of the same lawsuit as the representative claims remaining in court and the representative remains an “aggrieved employee” who may continue the PAGA claims. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104.)

Here, the Court’s April 14, 2021 order bifurcated the issue of whether Plaintiff is an aggrieved employee from Plaintiff’s PAGA representative claim. Plaintiff argues that Adolph changed the law with respect to the requirement that a PAGA representative suffer a labor code violation because allegations of a violation are sufficient to confer standing to proceed with the PAGA action. However, Adolph did not eliminate the statutory requirement that a PAGA representative must be an aggrieved employee. Rather, Adolph considered whether arbitration of a PAGA representative’s individual claims precluded the representative from bringing a PAGA claim in civil court. The Plaintiff in Adolph made allegations in his complaint that his employer committed labor code violations against him, thus allowing him to bring the action in civil court in the first place. This decision is consistent with previous case law and did not change that a PAGA representative must be an aggrieved employee against whom an employer committed a labor code violation. Adolph did not touch on whether a trial court could bifurcate the issue of whether a plaintiff is an aggrieved employee from a representative PAGA claim and therefore is not new law which would justify reconsideration.

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any party thereof in the case . . .”¿ (CCP § 598.)¿

Here, the Court’s April 14, 2021 order bifurcating the issue of whether Plaintiff is an aggrieved employee for the purposes of the PAGA representative claim does not split the PAGA action based on the remedies sought. The order also does not force the individual and representative components of the PAGA claim to be litigated in separate forums. The Court is not imposing additional requirements not found in the statute because Labor Code, section 2699 (c) requires that a PAGA representative be an aggrieved employee. Rather, the court is properly bifurcating an issue within the PAGA claim to be adjudicated first for the sake of judicial efficiency in handling this litigation.