Judge: William D. Claster, Case: 21-01197517, Date: 2022-09-09 Tentative Ruling

Plaintiff Johnny Galan's Notice of Motion and Unopposed Motion for Preliminary Approval of Class Action and PAGA Settlement  ROA #36

Plaintiff’s motion for preliminary approval of class action settlement is CONTINUED to October 21, 2022 at 9:00 a.m. in Department CX104 to permit the parties to respond to the following items of concern.  Any supplemental briefing shall be filed on or before October 12, 2022.  If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well.  In addition, Plaintiffs must provide proof of service of any revised settlement agreement and supporting papers on the LWDA.

1. Plaintiff’s amended PAGA letter was filed with the LWDA on July 18, 2022, the same day Plaintiff submitted his operative FAC for filing.  Labor Code § 2699.3(a)(2)(A) requires a PAGA plaintiff to wait 65 days after submitting a letter to the LWDA before a complaint may be filed.  Does Plaintiff’s failure to follow this exhaustion requirement have any effect on the scope of the PAGA claim to be released?

2. Labor Code § 2699.3(a)(2)(A) also gives the LWDA 60 days after filing of a PAGA letter to decide whether it will investigate a reported violation.  As of the hearing date, only 53 days will have passed from Plaintiff’s amended PAGA letter.  Can the Court approve a PAGA settlement based on the amended letter when the time for the LWDA to respond has yet to run?

3. Under Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, a PAGA letter must “state facts and theories supporting the alleged violations” to exhaust administrative remedies.  (Id., at p. 837.)  “[A] string of legal conclusions that parrot[s] the allegedly violated Labor Code provisions” will not suffice.  (Ibid.)  Please identify where Plaintiff’s amended PAGA letter states facts and theories to support the newly alleged sick leave, seating, and vacation time claims.  If those facts and theories are missing, has Plaintiff adequately exhausted his claims so that they may be released?

4. Please explain how the values for the waiting time and wage statement penalties were calculated.

5. If seating claims are to be released substantively—that is, as their own cause of action, rather than simply as a PAGA predicate—the seating claims must be valued and discounted for the Court’s analysis.  (To that end, the Court notes that seating violations are pled as a separate cause of action in the FAC, not simply as a PAGA predicate.)