Brown v. Ralphs Grocery Co.

Filed 10/31/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

TERRI BROWN, B278911

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC423782)
v.

RALPHS GROCERY COMPANY et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard E. Rico, Judge. Reversed and remanded
with directions.
Capstone Law, Glenn A. Danas, Melissa Grant, Liana
Carter and Arnab Banerjee for Plaintiff and Appellant.
Reed Smith, Linda S. Husar, Mara D. Curtis and Kasey J.
Curtis for Defendants and Respondents.
 I. INTRODUCTION

Plaintiff Terri Brown brought a representative action
against her employer, Ralphs Grocery Company (Ralphs), and its
parent company, The Kroger Co. (collectively defendants), under
the Private Attorneys General Act of 2004 (PAGA; Lab. Code,
§ 2698, et seq.), alleging wage and hour violations. In 2009,
plaintiff filed with the California Labor and Workforce
Development Agency (LWDA) a notice of alleged Labor Code
violations, as required under Labor Code section 2699.3,
subdivision (a) as a condition of filing a PAGA action, and filed
her complaint in this action alleging PAGA claims. Thereafter,
plaintiff filed a second amended complaint alleging new
violations of different Labor Code provisions not specified in her
2009 notice.
Defendants moved for judgment on the pleadings arguing
the 2009 notice was deficient, which the trial court granted with
leave to amend the notice and the complaint. In March 2016,
plaintiff amended her notice and filed a third amended
complaint.
Defendants demurred to the third amended complaint,
which was sustained by the trial court. The trial court held that
the PAGA claims were barred because the 2009 notice was
deficient and the 2016 notice and third amended complaint were
filed more than five years after the expiration of the statute of
limitations. The trial court rejected plaintiff’s contention that
equitable tolling saved the PAGA claims.
We conclude part of plaintiff’s 2009 notice was adequate
and satisfied the PAGA notice requirements under Labor Code
section 2699.3, subdivision (a), and part was not and did not. We

2
also conclude plaintiff’s later-added PAGA claims for violations of
Labor Code provisions not alleged in the 2009 notice did not
timely comply with section 2699.3’s notice requirements and are
time-barred. Furthermore, the deficient claims and later-added
claims are not saved by equitable tolling, the relation back
doctrine, judicial estoppel, or waiver, except to the extent the
later-added claims may relate back to the PAGA claim
adequately and timely noticed in 2009. We reverse the judgment
and remand with directions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was employed by Ralphs as an hourly, nonexempt
security guard at two distribution centers from October 2005 to
December 2009. She worked eight hours or more a day and 40
hours or more per week.
On October 12, 2009, she sent two two-page letters to the
LWDA and defendants alleging violations of Labor Code 1 sections
204, 226, subdivision (a), 226.7, and 512 (2009 Notice). The 2009
Notice identified defendants as her employer, defendants’
addresses, and plaintiff’s job as an hourly-paid security guard in
Los Angeles County. The 2009 Notice alleged defendants had
violated sections 226.7 and 512 because “[plaintiff] and other
aggrieved employees did not take all meal and rest periods and
were not properly compensated for missed meal and rest periods.”
The 2009 Notice alleged defendants had violated section 204
because they “failed to pay [plaintiff] and other aggrieved

1 Further statutory references are to the Labor Code unless
otherwise indicated.

3
employees all wages due to them within any time period specified
by California Labor Code section 204.” And it alleged defendants
had violated section 226, subdivision (a) by not providing
“[plaintiff ]and other aggrieved employees with proper itemized
wage statements” because, among other things, the wage
statements failed “to include the name and address of the legal
entity that is the employer.”
Two days later on October 14, 2009, plaintiff filed a class
action and PAGA representative action against defendants. The
complaint alleged defendants violated sections 226.7 and 512 by
requiring plaintiff to work through meal and rest periods without
compensation, violated section 204 by failing to pay plaintiff the
full wages due within the required time period, and violated
section 226, subdivision (a) by failing to provide complete and
accurate wage statements, including by not listing the legal name
and address of the employer. In addition, plaintiff advanced a
Business and Professions Code section 17200 cause of action.
On November 30, 2009, plaintiff filed a first amended
complaint alleging the same causes of action and adding an
allegation that she had satisfied the administrative prerequisites
under section 2699.3, subdivision (a) by sending the 2009 Notice.
She alleged that more than 33 days had passed since she sent the
2009 Notice and the LWDA had not provided any response. On
December 8, 2009, the LWDA advised plaintiff and defendants
that it had received the 2009 Notice and did not intend to
investigate the allegations.
On approximately December 11, 2009, plaintiff’s
employment with defendants was terminated.
Rather than answer or demur, on January 6, 2010, Ralphs
filed a petition to compel arbitration. The trial court concluded

4
the class action and PAGA waivers were substantively
unconscionable and denied the petition. On July 12, 2011, we
reversed the trial court’s ruling invalidating the class action
waiver because plaintiff’s opposition to the petition had not made
the necessary factual showing under the test in Gentry v.
Superior Court (2007) 42 Cal.4th 443, 446. (Brown v. Ralphs
Grocery Co. (2011) 197 Cal.App.4th 489, 497.) But we affirmed
the ruling that the PAGA waiver was substantively
unconscionable and held PAGA was not preempted by the
Federal Arbitration Act. (197 Cal.App.4th at pp. 500-503.) We
reversed and remanded for a determination whether the PAGA
waiver provision could be severed from the arbitration
agreement. (Id. at p. 504.) Defendants’ petition for review by our
Supreme Court was denied on October 19, 2011. (Id. at p. 510.)
Defendants’ petition for certiorari to the United States Supreme
Court was denied on April 16, 2012. (Ralphs Grocery Co. v.
Brown (2012) 566 U.S. 937.)
On May 2, 2012, the trial court severed the PAGA waiver
provision from the arbitration agreement, granted Ralphs’s
request to arbitrate the non-PAGA claims on an individual basis,
and stayed the PAGA claims until completion of the arbitration.
Shortly thereafter, plaintiff decided not to pursue her individual
claims in arbitration and instead to amend her complaint to drop
her individual claims and proceed only on her PAGA claims.
On September 21, 2012, plaintiff moved for leave to file her
second amended complaint. The proposed second amended
complaint no longer alleged class and individual causes of action.
It included the PAGA claims for violations of sections 204, 226,
subdivision (a), 226.7, and 512 from the first amended complaint,
and it added new PAGA claims. The new claims alleged

5
violations of sections 201, 202, and 203 by not paying plaintiff
and other aggrieved employees within the statutory time period
after terminating their employment, and violations of section
1198 by failing to provide meal and rest periods, timely paid
wages, and accurate employment records. The proposed second
amended complaint also sought civil penalties under section 558
for the Labor Code violations.
Defendants filed an opposition to plaintiff’s motion on
procedural grounds. They argued the proper course was to allow
plaintiff to dismiss the non-PAGA causes of action from the first
amended complaint and lift the stay on the PAGA claims.
Defendants did not challenge the substance of the proposed
second amended complaint and did not argue that the PAGA
claims were based on inadequate notice or time-barred.
On October 16, 2012, the trial court granted plaintiff’s
motion for leave to file the second amended complaint “on the
grounds that Defendants essentially do not oppose this motion
and will not suffer any prejudice by the proposed amendments.”
Defendants were ordered to file their answer by November 15,
2012.
Defendants elected instead to renew their petition to
compel arbitration pursuant to Code of Civil Procedure section
1008, subdivision (b) based on new decisions from various
California and federal courts. The trial court denied the motion,
and we dismissed defendants’ appeal because an order denying a
renewed motion under Code of Civil Procedure section 1008,
subdivision (b) is not appealable. (Brown v. Ralphs Grocery Co.
(Mar. 6, 2014, B247297) [nonpub. opn.].)
On January 20, 2016, defendants filed a motion for
judgment on the pleadings challenging the second amended

6
complaint. For the first time, defendants argued that the 2009
Notice was inadequate. Specifically, defendants asserted: (1) the
2009 Notice did not mention violations of sections 201, 202, 203,
558, and 1198, which were alleged in the second amended
complaint but not the earlier complaints, and (2) the 2009 Notice
did not sufficiently allege the facts and theories supporting the
alleged violations of sections 204, 226, subdivision (a), 226.7, and
512. Plaintiff countered that the 2009 Notice was sufficient, and
if it was not, she should be granted leave to amend because
equitable tolling and the relation back doctrine saved her claims
from the statute of limitations.
On March 11, 2016, the trial court granted defendants’
motion with leave to amend. The trial court held that the 2009
Notice was inadequate because it did not refer to sections 201,
202, 558, or 1198 (the trial court did not mention section 203),
and the second amended complaint introduced new theories of
liability such as the failure to pay wages at discharge. At the
hearing, the trial court stated several times that it was allowing
the amended complaint without ruling on the arguments raised
in defendants’ motion and that defendants could raise those
issues after the third amended complaint was on file. The trial
court also allowed plaintiff to amend her 2009 Notice.
On March 24, 2016, plaintiff sent two nine-page letters to
the LWDA and defendants alleging in more detail violations of
the Labor Code (2016 Notice). The 2016 Notice alleged
defendants required aggrieved employees to sign invalid on-duty
meal agreements, did not permit rest periods, and did not pay
meal and rest period premiums in violation of sections 226.7 and
512, subdivision (a). Defendants allegedly failed to give plaintiff
and aggrieved employees properly itemized wage statements by

7
not listing the name and address of the employer’s legal entity
and the net wages earned, in violation of section 226, subdivision
(a). Plaintiff alleged defendants did not maintain accurate
payroll records in violation of section 1174, subdivision (d), and
did not keep records of meal periods in violation of section 1198.
Defendants allegedly failed to pay all wages due, including meal
and rest period premium wages, in violation of section 204.
Plaintiff also asserted violations of sections 201, 202, and 203 for
failing to timely pay discharged employees their final wages and
to pay former employees all their earned wages. Plaintiff sought
civil penalties under section 558 for the violations.
On March 25, 2016, plaintiff filed a third amended
complaint. She alleged defendants did not: provide meal and rest
periods (§§ 226.7, 512, subd. (a), 1198); provide and maintain
compliant wage statements (§§ 226, subd. (a), 1174, subd. (d),
1198); pay wages during employment (§ 204); and pay wages
upon termination (§§ 201, 202, 203). The third amended
complaint was the first pleading to reference section 1174,
subdivision (d). On July 14, 2016, defendants filed a demurrer to
the third amended complaint, contending the 2016 Notice was too
late and the PAGA claims were time-barred.
On August 8, 2016, the trial court sustained the demurrer
without leave to amend. The trial court held the 2009 Notice was
deficient because it did not allege “facts and theories” to support
the alleged violations and did not include violations of the Labor
Code provisions plaintiff had added to later complaints, such as
violations of sections 201, 202, 558, and 1198. Although the trial
court ruled plaintiff could amend the 2009 Notice as she had done
with the 2016 Notice, the court concluded that any claim based
on the 2016 Notice was barred by PAGA’s one-year statute of

8
limitations. Because plaintiff’s last day as an employee was
December 10, 2009, plaintiff needed to file her notice by
December 10, 2010 at the latest. The 2016 Notice, filed on
March 4, 2016, was more than five years too late. The trial court
rejected plaintiff’s contention that the doctrine of equitable
tolling applied because plaintiff had added new factual
allegations and Labor Code violations not referenced in the
original complaint and 2009 Notice, and plaintiff failed to
demonstrate a lack of prejudice to defendants. The trial court
declined to address the relation back doctrine because it found
equitable tolling did not apply to expand plaintiff’s PAGA claims.
The trial court thereafter entered judgment in favor of
defendants, and plaintiff appealed.

III. DISCUSSION

A. Standards of Review

On appeal from a judgment based on an order sustaining a
demurrer, we assume all facts alleged in the complaint are true.
(Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524,
528; Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992,
998.) We accept all properly pleaded material facts but not
contentions, deductions, or conclusions of fact or law. (Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) We read
the complaint as a whole and its parts in their context to give the
complaint a reasonable interpretation. (Evans v. City of Berkeley
(2006) 38 Cal.4th 1, 6; Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) Likewise, we independently review a trial court’s order on

9
a motion for judgment on the pleadings. 2 (Jacks v. City of Santa
Barbara (2017) 3 Cal.5th 248, 273; People ex rel. Harris v. Pac
Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777 [“‘A
motion for judgment on the pleadings is equivalent to a demurrer
and is governed by the same de novo standard of review’”].)
The decision to deny leave to amend is reviewed for abuse
of discretion. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 967.) “[I]t is an abuse of discretion to sustain a demurrer
without leave to amend if the plaintiff shows there is a
reasonable possibility any defect identified by the defendant can
be cured by amendment.” (Ibid.)

B. The Notice Requirements of Section 2699.3, Subdivision (a)

PAGA was enacted to remedy systemic under-enforcement
of worker protections. (Williams v. Superior Court (2017) 3
Cal.5th 531, 545 (Williams).) To address this problem, the
Legislature adopted civil penalties for “provisions that lacked
existing noncriminal sanctions” and deputized “employees
harmed by labor violations to sue on behalf of the state and
collect penalties, to be shared with the state and other affected
employees.” (Ibid.) Of the civil penalties recovered, LDWA
receives 75 percent, leaving 25 percent for “aggrieved employees.”
(§ 2699, subd. (i); Iskanian v. CLS Transportation Los Angeles,
LLC (2014) 59 Cal.4th 348, 380.)
An aggrieved employee may bring a representative action
for wage and hour violations, including for violations of the Labor

2 Plaintiff contends the trial court’s demurrer ruling was a
“continuation” of its ruling on the motion for judgment on the
pleadings.

10
Code provisions listed in section 2699.5. (§§ 2699, subd. (a) &
2699.3, subd. (a); Munoz v. Chipotle Mexican Grill, Inc. (2015)
238 Cal.App.4th 291, 310.) But “[b]efore bringing a civil action
for statutory penalties, an employee must comply with Labor
Code section 2699.3. ([] § 2699, subd. (a).)” (Arias v. Superior
Court (2009) 46 Cal.4th 969, 981 (Arias); see also § 2699.5
[requiring compliance with § 2699.3, subd. (a), for violations of
§§ 201, 202, 203, 204, 226, subd. (a), 226.7, 512, 1174, subd. (d),
and 1198, among other sections].)
Section 2699.3, subdivision (a)(1) “requires the employee to
give written notice of the alleged Labor Code violation to both the
employer and the [LWDA], and the notice must describe facts and
theories supporting the violation.” 3 (Arias, supra, 46 Cal.4th at
p. 981.) Then, “[i]f the agency notifies the employee and the
employer that it does not intend to investigate . . . , or if the
agency fails to respond within 33 days, the employee may then
bring a civil action against the employer.” 4 (Ibid.) If the plaintiff

3 Section 2699.3, subdivision (a)(1)(A) currently states: “The
aggrieved employee or representative shall give written notice by
online filing with the Labor and Workforce Development Agency
and by certified mail to the employer of the specific provisions of
this code alleged to have been violated, including the facts and
theories to support the alleged violation.” The prior version of
this subdivision in effect when plaintiff gave notice did not
require online filing and was differently numbered but otherwise
identical.

4 After the time period relevant here, the section was revised
so that after June 26, 2016, the agency has 60 days to respond to
a notice, and the plaintiff may commence a civil action if the
agency does not respond within 65 days. (§ 2699.3, subd.
(a)(2)(A).)

11
has an action pending, the plaintiff “may as a matter of right
amend an existing complaint to add a cause of action arising
under [PAGA]” within 60 days. (§ 2699.3, subd. (a)(2)(C).) The
periods specified in section 2699.3 “are not counted as part of the
time limited for the commencement of the civil action to recover
penalties” under PAGA. (§ 2699.3, subd. (d).) Proper notice
under section 2699.3 is a “condition” of a PAGA lawsuit.
(Williams, supra, 3 Cal.5th at p. 545; Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 371, 376 (Caliber).)
Plaintiff contends that the trial court erroneously
concluded that the 2009 Notice was deficient under section
2699.3, subdivision (a). In its decision granting defendants’
motion for judgment on the pleadings following the second
amended complaint and its decision sustaining defendant’s
demurrer to the third amended complaint, the trial court found
the 2009 Notice deficient for two reasons. The trial court
concluded the notice did not sufficiently allege “facts and
theories” to support the violations claimed in the first amended
complaint (i.e., violations of sections 204, 226, subdivision (a),
226.7, and 512) and did not refer to violations of Labor Code
statutes that plaintiff later alleged in the second and third
amended complaints (i.e., violations of sections 201, 202, 203,
558, 1174, subdivision (d), and 1198). 5 We agree in part. After

5 The trial court also held that the 2009 Notice was deficient
because plaintiff did not identify the other “aggrieved employees.”
PAGA defines “aggrieved employee” as “any person who was
employed by the alleged violator and against whom one or more
of the alleged violations was committed.” (§ 2699, subd. (c).) We
can infer from the 2009 Notice that the other “aggrieved
employees” are non-exempted, hourly-paid workers employed by
defendants and against whom defendants committed the alleged

12
the trial court’s rulings, our Supreme Court issued its decision in
Williams. The Supreme Court identified “the clear legislative
purposes [PAGA] was designed to serve,” namely “to advance the
state’s public policy of affording employees workplaces free of
Labor Code violations, notwithstanding the inability of state
agencies to monitor every employer or industry” and “to
remediate present violations and deter future ones.” (3 Cal.5th
at p. 546.)
In the context of deciding whether a PAGA plaintiff must
have “some modicum of substantial proof before proceeding with
discovery,” the Supreme Court addressed the PAGA notice
requirement: “Nothing in . . . section 2699.3, subdivision
(a)(1)(A), indicates the ‘facts and theories’ provided in support of
‘alleged’ violations must satisfy a particular threshold of
weightiness, beyond the requirements of nonfrivolousness
generally applicable to any civil filing. (See Code Civ. Proc.,
§ 128.7.) The evident purpose of the notice requirement is to
afford the relevant state agency, the [LWDA], the opportunity to
decide whether to allocate scarce resources to an investigation, a
decision better made with knowledge of the allegations an
aggrieved employee is making and any basis for those
allegations. Notice to the employer serves the purpose of
allowing the employer to submit a response to the agency (see []
§ 2699.3, subd. (a)(1)(B)), again thereby promoting an informed
agency decision as to whether to allocate resources toward an
investigation. Neither purpose depends on requiring employees
to submit only allegations that can already be backed by some
particular quantum of admissible proof.” (Williams, supra, 3

Labor Code violations. We conclude the 2009 Notice sufficiently
identified the other aggrieved employees.

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Cal.5th at pp. 545-546; see also Caliber, supra, 134 Cal.App.4th
at p. 375 [notice provision intended to “‘allow[] the [LWDA] to act
first on more “serious” violations such as wage and hour
violations and give employers an opportunity to cure less serious
violations’”].)
The Supreme Court in Williams recognized the distinction
in the notice provision between the alleged violation (i.e., “the
allegations an aggrieved employee is making”) and the facts and
theories to support the alleged violation (i.e., “any basis for those
allegations”). (3 Cal.5th at p. 546.) Federal court decisions also
recognize that the notice provision requires something more than
bare allegations of a Labor Code violation. In Alcantar v. Hobart
Service (9th Cir. 2015) 800 F.3d 1047 (Alcantar), the court held
the plaintiff’s notice was “a string of legal conclusions with no
factual allegations or theories of liability to support them.” (Id.
at p. 1057.) The notice identified plaintiff’s employer and stated
the employer “(1) failed to pay wages for all time worked; (2)
failed to pay overtime wages for overtime worked; (3) failed to
include the extra compensation required by . . . section 1194 in
the regular rate of pay when computing overtime compensation,
thereby failing to pay Plaintiff and those who earned additional
compensation for all overtime wages due;” and so on. (Ibid.) The
court reasoned these bare allegations were insufficient because
they simply paraphrased the allegedly violated statutes. (Ibid.
[“The only facts or theories that could be read into this letter are
those implied by the claimed violations of specific sections of the
California Labor Code”].) The notice did not allow the LWDA “to
intelligently assess the seriousness of the alleged violations” or
give the employer enough information “to determine what
policies or practices are being complained of so as to know

14
whether to fold or fight.” (Id. at p. 1057; see, e.g., Green v. Bank
of America, N.A. (9th Cir. 2015) 634 Fed.Appx. 188, 191 [notice
stating “plaintiffs could use a seat in their position” was
sufficient for “simple seating claim”]; Moua v. International
Business Machines Corp. (N.D.Cal. Jan. 31, 2012, No. 5:10-cv-
01070 EJD) 2012 WL 370570, at *5 [notice “identifies at least
some alleged facts and theories”]; Mireles v. Paragon Systems,
Inc. (S.D.Cal. Feb. 9, 2016, No. 13-cv-00122-L-BGS) 2016 WL
7634439, at *5 [notice reciting elements from the Labor Code and
a Wage Order and alleging a violation of § 226.7 “fails to provide
any facts, not implied by reference to the Labor Code or Wage
Order, as to how [the] defendant violated [] § 226.7”]; Cardenas v.
McLane Foodservices, Inc. (C.D.Cal. 2011) 796 F.Supp.2d 1246,
1260 [“the plain meaning” of the phrase “facts and theories to
support the alleged violation” “suggests that [the p]laintiffs were
required to put forward sufficient facts to support their claims of
labor violations”].)
The 2009 Notice suffers from the same defect as in
Alcantar. It stated plaintiff was an hourly-paid security guard
employed by defendants at Los Angeles County business
locations. Plaintiff alleged she and other aggrieved employees
“did not take all meal and rest periods and were not properly
compensated for missed meal and rest periods” in violation of
sections 226.7 and 512. She claimed defendants “failed to pay
[her] and other aggrieved employees all wages due to them
within any time period specified by California Labor Code section
204.” Plaintiff alleged that defendants “did not provide [her] and
other aggrieved employees with proper itemized wage
statements” as required by section 226, subdivision (a), including
by failing “to include the name and address of the legal entity

15
that is the employer.” These allegations identified “the specific
provisions” of the Labor Code alleged to have been violated, as
required by section 2699.3, subdivision (a)(1)(A). But with one
exception, the 2009 Notice was a string of legal conclusions that
parroted the allegedly violated Labor Code provisions. It did not
state facts and theories supporting the alleged violations not
implied by reference to the Labor Code. The notice did not give
sufficient information for the LWDA to assess the seriousness of
the alleged violations and decide whether to allocate scarce
resources to an investigation, or for defendants to determine
what policies or practices were being complained of, have an
opportunity to cure the violations, and prepare a meaningful
response.
The one exception is the allegation of violations of section
226, subdivision (a), requiring employers to maintain accurate
and complete wage statements. That allegation adds: “The
violations include, without limitation, the failure to include the
name and address of the legal entity that is the employer.” This
minimal fact supports the alleged violation, making the 2009
Notice adequate for the alleged violation of section 226,
subdivision (a).
The second and third amended complaints also included
allegations based on Labor Code provisions that plaintiff did not
specify in the 2009 Notice and did not include in the first
amended complaint, namely sections 201, 202, 203, 558, 1174,
subdivision (d), and 1198. Section 2699.3, subdivision (a)
requires a plaintiff to give notice of “the specific provisions of this
code alleged to have been violated” as a condition of filing suit.
Plaintiff did not do that in the 2009 Notice for the alleged
violations of sections 201, 202, 203, 1174, subdivision (d), and

16
1198, making the 2009 Notice deficient as to claims based on
those sections.
Section 558 is different. That provision sets forth a remedy
—a civil penalty—for certain Labor Code violations and
violations of Industrial Welfare Commission orders. (§ 558, subd.
(a); Thurman v. Bayshore Transit Management, Inc. (2012) 203
Cal.App.4th 1112, 1147 [§ 558 provides a remedy in the form of a
civil penalty].) An employee wishing to assert a PAGA claim
would need to allege an underlying violation for which section
558 provides the remedy. Section 558, therefore, is not the type
of provision to be specified in a PAGA notice. This is confirmed
by section 2699.5, listing the Labor Code provisions subject to the
notice requirement of section 2699.3, subdivision (a). (§ 2699.5
[“The provisions of subdivision (a) of [s]ection 2699.3 apply to any
alleged violation of the following provisions”].) The long list of
provisions does not include section 558. (Ibid.) And, indeed, the
second and third amended complaints do not allege violations of
section 558 but seek penalties under that section for violations of
other Labor Code provisions.
In sum, the 2009 Notice adequately alleged a violation of
section 226, subdivision (a), but not violations of sections 204,
226.7 and 512. The 2009 Notice cannot serve as notice of alleged
violations of sections 201, 202, 203, 1174, subdivision (d), and
1198. The plaintiff did not need to specify section 558 in her
PAGA notice and can proceed with a claim for remedies under
that section so long as she gave adequate notice of a violation for
which section 558 provides a remedy.

17
C. The Statute of Limitations for PAGA Claims

Because the 2009 Notice did not specify violations of
sections 201, 202, 203, 1174, subdivision (d), and 1198, plaintiff
filed her second amended complaint adding claims under those
sections before satisfying the notice condition of section 2699.3,
subdivision (a). Plaintiff contends she remedied that deficiency
with her 2016 Notice. Although a plaintiff may seek to amend an
existing complaint after complying with the requirements of
section 2699.3, subdivision (a) (Caliber, supra, 134 Cal.App.4th at
p. 385, fn. 19), by the time of the 2016 Notice, it was far too late
for plaintiff to give notice of the alleged violations and to amend
her complaint based on the 2016 Notice.
The statute of limitations for PAGA claims is one year.
(Code Civ. Proc., § 340, subd. (a).) At the time of plaintiff’s
notices, section 2699.3 gave the agency 33 days to respond to a
notice. (Former § 2699.3, subd. (a)(2)(A); Arias, supra, 46 Cal.4th
at p. 981.) Section 2699.3 also allowed plaintiff to amend her
existing complaint to add a PAGA cause of action within 60 days
of that 33-day period. (§ 2699.3, subd. (a)(2)(C).) The 33-day and
60-day periods were in addition to the one-year statute of
limitations. (§ 2699.3, subds. (a)(2)(C) & (d).)
Because plaintiff’s employment terminated in December
2009, to timely pursue PAGA claims for alleged violations
occurring during her employment or upon her discharge, plaintiff
had until December 2010 to file her PAGA notice. Section 2699.3
then gave her another 93 days, or until March 2011, to amend
her complaint to include any PAGA claims. But plaintiff waited
until March 2016 to file the 2016 Notice alleging violations of
sections 201, 202, 203, 1174, subdivision (d), and 1198 and to
seek to file the third amended complaint based on the 2016

18
Notice. By then, the one-year statute of limitations on her PAGA
claims for violations of those provisions had long since run.

D. Doctrines Saving Time-Barred Claims

Plaintiff does not explain why she waited so long to file a
PAGA notice for violations of sections 201, 202, 203, 1174,
subdivision (d), and 1198. The alleged violations of sections 1174,
subdivision (d) and 1198 concerned conduct while she was
employed, namely defendant’s failure to maintain accurate
payroll records, provide meal and rest periods, and keep accurate
records of meal periods. The alleged violations of sections 201,
202, and 203 involve the failure to promptly pay former
employees all earned wages, including meal and rest period
premiums. At the time of the 2009 Notice, plaintiff was still
employed and so understandably she did not include violations of
sections 201, 202, and 203. But she does not explain why she did
not file a new notice in the year after her termination.
Plaintiff seeks to avoid the consequences of her dilatory
2016 Notice by arguing that an assortment of doctrines—
equitable tolling, relation back, judicial estoppel, and waiver—
saves her from the PAGA notice deadline and one-year statute of
limitations.

1. Equitable Tolling

Plaintiff contends the time for her to give adequate notice
by way of the 2016 Notice and to add PAGA claims to the second
and third amended complaints was equitably tolled. She claims
equitable tolling preserves all of her PAGA claims because she
filed the 2009 Notice and original complaint in good faith and had

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no reason to believe they were deficient, and the parties then
litigated for years without objection from defendants.
“Equitable tolling is not permissible where it is inconsistent
with the text of the relevant statute.” (United States v. Beggerly
(1998) 524 U.S. 38, 48; Lantzy v. Centex Homes (2003) 31 Cal.4th
363, 371.) Equitable tolling “must be applied with sensitivity to
the Legislature’s intentions.” (Bjorndal v. Superior Court (2012)
211 Cal.App.4th 1100, 1111 (Bjorndal).) The doctrine is not
applicable where the statute “demonstrates the Legislature
intended the timely filing of a complaint [with the administrative
authority] to be a prerequisite to, and to precede, the filing of
litigation.” (Id. at p. 1111.)
As discussed, the Supreme Court in Williams described the
Legislature’s intent in passing PAGA: “to advance the state’s
public policy of affording employees workplaces free of Labor
Code violations” and “to remediate present violations and deter
future ones.” (3 Cal.5th at p. 546.) The Supreme Court also
addressed the purpose of the notice requirement: “to afford the
[LWDA] the opportunity to decide whether to allocate scarce
resources to an investigation” and “allow[] the employer to
submit a response.” (Id. at pp. 545-546.) Section 2699.3,
subdivision (a) evinces the Legislature’s intent for workplace
violations to be addressed expeditiously by setting a tight
timeline for the LWDA to respond to the notice of alleged
violations and the plaintiff to thereafter file or amend a
complaint. The concomitant one-year statute of limitations
emphasizes the Legislature’s desire for quick action on workplace
violations.
Allowing equitable tolling to preserve PAGA claims where
a plaintiff failed to file an adequate section 2699.3 notice for

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years is inconsistent with the text and purpose of section 2699.3,
subdivision (a) and would defeat the entire purpose of PAGA. If a
plaintiff could wait many years to assert violations of the Labor
Code or amend deficient notices, the LWDA would be hard
pressed to make an informed decision about allocating scarce
resources to old violations, the employer would be faced with
responding based on stale evidence, and workplace violations
could continue for years without being remediated or deterred.
Further, plaintiff acknowledges that an element of
equitable tolling is “good faith and reasonable conduct by the
plaintiff in filing the second claim.” (Collier v. City of Pasadena
(1983) 142 Cal.App.3d 917, 924.) But she does not address her
failure to file any notice regarding alleged violations of sections
201, 202, 203, 1174, subdivision (d), and 1198 for more than six
years after the 2009 Notice. The federal cases she cites did not
involve that kind of delay. In Ramirez v. Ghilotti Bros. Inc. (N.D.
Cal. 2013) 941 F.Supp.2d 1197, the plaintiffs filed two timely
notices and a timely amended complaint, and the court ruled that
the claims in the amended complaint based on the allegations in
the second notice would relate back to the original complaint.
(Id. at pp. 1209-1210.) In Williams v. Veolia Transportation
Services, Inc. (C.D.Cal. June 28, 2012) 2012 WL 12960640, when
the original notice was defective, the court allowed the plaintiff to
file a new notice and held that the plaintiff’s claims were
preserved by equitable tolling. (Id. at pp. *1-2.) Nothing in that
decision indicates the plaintiff later tried to add new claims based
on Labor Code provisions not specified in the original notice. Nor
did that decision consider the legislative intent to remedy
workplace violations through expeditious notice, investigation,
and litigation, which would be hindered if an untimely new notice

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could cure a deficient notice filed more than six years earlier as
occurred here.

2. Relation Back

Plaintiff argues the relation back doctrine permits the
PAGA claims added to the 2016 Notice and the second and third
amended complaints because they arise out of the same set of
facts as the claims alleged in the 2009 Notice and original
complaint. Under the relation back doctrine, an amended
complaint is deemed to have been filed at the time of the earlier
complaint if the amended complaint “(1) rest[s] on the same
general set of facts, (2) involve[s] the same injury, and (3) refer[s]
to the same instrumentality . . . .” (Norgart v. Upjohn Co. (1999)
21 Cal.4th 383, 409.) The doctrine cannot be used to frustrate
the intent of the Legislature to require compliance with
administrative procedures as a condition to filing an action.
(Bjorndal, supra, 211 Cal.App.4th at p. 1113.)
Because we conclude the 2009 Notice was adequate as to
the alleged violations of section 226, subdivision (a), the question
remains open whether any of the later-alleged PAGA claims
relate back to the claim for violations of section 226, subdivision
(a). (Cf. Soldinger v. Northwest Airlines (1996) 51 Cal.App.4th
345, 381 [“Incidents not described in a DFEH charge can be
included in the subsequently filed lawsuit if they would
necessarily have been discovered by investigation of the charged
incidents, i.e., if the allegations in the civil complaint were ‘like or
related’ to those specified in the DFEH charge”].) On remand,
the trial court is to consider whether any of the later-added
PAGA claims in the third amended complaint—the claims for

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violations of sections 201, 202, 203, 1174, subdivision (d), and
1198—relate back solely as to the adequately noticed and alleged
claim for violations of section 226, subdivision (a).

3. Judicial Estoppel

Plaintiff contends judicial estoppel prevents defendants
from relying on a lack of notice or statute of limitations defense.
Judicial estoppel is an equitable doctrine that applies when “‘(1)
the same party has taken two positions; (2) the positions were
taken in judicial or quasi-judicial administrative proceedings; (3)
the party was successful in asserting the first position (i.e., the
tribunal adopted the position or accepted it as true); (4) the two
positions are totally inconsistent; and (5) the first position was
not taken as a result of ignorance, fraud, or mistake.’” (Aguilar v.
Lerner (2004) 32 Cal.4th 974, 986-987.) The application of
judicial estoppel, even when all necessary elements are present,
is discretionary. (MW Erectors, Inc. v. Niederhauser Ornamental
& Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)
Plaintiff contends defendants knew about her PAGA claims
including the later-added PAGA claims in the 2012 second
amended complaint, but did not oppose them or challenge the
sufficiency of the notice until 2016. But plaintiff does not identify
any position defendants successfully asserted, which the trial
court adopted or accepted as true, that was later totally
inconsistent with another position of defendants. The case law
speaks of a party successfully “asserting the first position”
(Aguilar v. Lerner, supra, 32 Cal.4th at pp. 986-987), indicating
judicial estoppel does not occur absent an affirmative assertion.

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In other words, silence and lack of objection does not result in
judicial estoppel.

4. Waiver

Plaintiff next argues defendants waived their statute of
limitations and lack of notice defenses by not asserting them
when plaintiff first moved for leave to file the second amended
complaint in 2012. Defendants instead argued plaintiff should
simply dismiss the non-PAGA causes of action.
Generally, a defendant must plead defenses in an answer
or demurrer, or risk waiver. (Code Civ. Proc., § 430.80, subd. (a).)
A defendant waives a statute of limitations defense by failing to
plead it in an answer or raise it as a ground of a general
demurrer. (Minton v. Cavaney (1961) 56 Cal.2d 576, 581; accord,
Adams v. Paul (1995) 11 Cal.4th 583, 597.) Here, defendants
never answered the complaints. But they did assert the defenses
in their motion for judgment on the pleadings and their demurrer
to the operative third amended complaint and thus have
preserved the defenses.
Plaintiff’s argument that defendants waived the defenses
by not raising them in their opposition to plaintiff’s motion for
leave to file the second amended complaint is not well-taken. The
“better course of action” is to allow a plaintiff to amend the
complaint “and then let the parties test its legal sufficiency in
other appropriate proceedings.” (Atkinson v. Elk Corp. (2003) 109
Cal.App.4th 739, 760.) Thus, a defendant is not required to make
its arguments about the sufficiency of the pleading in an
opposition to a motion for leave to amend.

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E. Denial of Leave to Amend

Plaintiff contends she should be given leave to amend her
third amended complaint. We review the denial of leave to
amend a complaint for an abuse of discretion. (City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865.) “If the court
sustained the demurrer without leave to amend . . . we must
decide whether there is a reasonable possibility the plaintiff could
cure the defect with an amendment. [Citation.] If we find that
an amendment could cure the defect, we conclude that the trial
court abused its discretion and we reverse; if not, no abuse of
discretion has occurred. [Citation.] The plaintiff has the burden
of proving that an amendment would cure the defect.” (Schifando
v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Plaintiff has not specified how she can amend the third
amended complaint to cure the deficient notice of the alleged
violations of sections 204, 226.7, and 512, and to timely give
notice of the alleged violations of sections 201, 202, 203, 1174,
subdivision (d), and 1198. Nothing can now remedy the
deficiency of the 2009 Notice or lateness of the 2016 Notice.
Therefore, amendment would be futile, and the trial court did not
abuse its discretion in denying leave to amend.
As we explained above, the 2009 Notice was sufficient as to
plaintiff’s PAGA claims for alleged violations of section 226,
subdivision (a). No statute of limitations or notice requirement
prevents plaintiff’s claim for a violation of that section to go
forward. But the third amended complaint alleges a claim under
that section in the same cause of action as claims under the other
sections for which plaintiff failed to give timely and adequate
notice. “The appropriate procedural device for challenging a

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portion of a cause of action seeking an improper remedy is a
motion to strike.” (Caliber, supra, 134 Cal.App.4th at p. 385.)
Although defendants did not bring a motion to strike as an
alternative to their demurrer, “a court may ‘at any time in its
discretion, and upon terms it deems proper[,]’ ‘[s]trike out all or
any part of any pleading not drawn or filed in conformity with the
laws of this state. . . .’” (Ibid.) Accordingly, the trial court may
strike portions of plaintiff’s cause of action for violations of Labor
Code sections other than section 226, subdivision (a), which it
determines do not relate back to that section.

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 IV. DISPOSITION

The judgment is reversed and the matter is remanded for
further proceedings consistent with this opinion. Specifically, the
trial court is directed to overrule defendant’s demurrer as to
plaintiff’s section 226, subdivision (a) claim and to sustain the
demurrer as to plaintiff’s remaining claims, not including the
demand for relief under section 558, except to the extent the trial
court concludes the relation back doctrine—solely as to the
section 226, subdivision (a) claim—permits plaintiff to maintain
one or more of those remaining claims.
The parties are to bear their own appeal costs.

SEIGLE, J. ∗

We concur:

BAKER, Acting P.J.

MOOR, J.

∗ Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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