Esparza v. Safeway, Inc.

Filed 6/10/19
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

B287927
ENRIQUE ESPARZA et al., (Los Angeles County
Super. Ct. Nos. BC369766,
Plaintiffs and Appellants, BC487830)

v.

SAFEWAY, INC., et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles
County, John Shepard Wiley, Jr. Affirmed.
Matern Law Group, Matthew J. Matern and Mikael H. Stahle;
Altshuler Berzon and James M. Finberg for Plaintiffs and Appellants.
Payne & Fears, James L. Payne, Jeffrey K. Brown and Ray E.
Boggess for Defendants and Respondents.
 INTRODUCTION
Respondents Safeway, Inc. and The Vons Companies,
Inc. (collectively Safeway) formerly maintained a policy or
practice of failing to pay statutorily required premium wages
when, if ever, Safeway violated its duty to provide employees
meal periods. Safeway’s duty was not to police meal breaks
to ensure that no employees skipped them, but only to free
employees from obligation and control, without impeding or
discouraging them from taking their breaks. (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004,
1039-1041.) If Safeway did unlawfully dissuade an employee
from taking a meal break, the Labor Code required Safeway
to pay that employee a premium wage equal to one hour’s
pay. (Ibid.; Lab. Code, § 226.7, subd. (c).)
Prior to June 17, 2007, Safeway paid no premium
wages for missed meal periods, without regard to whether an
employee had been impeded or discouraged from taking a
meal break. Plaintiffs-appellants Enrique Esparza, Cathy
Burns, Levon Thaxton II, and Sylvia Vezaldenos -- all former
Safeway employees -- appeal from a judgment against them
on two causes of action related to this former policy or
practice. The first, brought under the unfair competition law
(UCL) (Bus. & Prof. Code, § 17200 et seq.), sought to
establish liability for the no-premium-wages policy itself.
The second, brought under the Labor Code Private Attorneys
General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), was
narrowed prior to trial: only appellant Vezaldenos sought to
establish PAGA liability, and only for violations occurring

2
before June 17, 2007, when the no-premium-wages policy
was in place.
Appellants successfully sought class certification for
their UCL claim. In 2015, we rejected Safeway’s challenge
to the class certification, noting that plaintiffs did “not seek
the unpaid accrued meal break premium wages” -- which
would have required an individualized determination
whether any class member had been denied a meal break --
“but instead maintain[ed] that valuing the loss of the
‘statutory protections’ to the class [could] be determined by a
‘‘‘market value” approach.’” (Safeway, Inc. v. Superior Court
(2015) 238 Cal.App.4th 1138, 1162.) We expressly declined
to examine the merits of appellants’ theory of restitution or
their ability to quantify it using a market value approach.
(Id. at pp. 1162-1163.)
Following our decision, Safeway moved in the trial
court for summary adjudication of the UCL claim, arguing
that appellants had shown no viable theory upon which the
class could obtain restitution. The trial court agreed,
concluding that appellants improperly sought recovery of
premium wages without proving the classwide meal period
violations necessary for the class members’ interest in
premium wages to vest. The court excluded the expert
declaration on which appellants relied, exercising its
gatekeeping duty under Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747.
The court also granted Safeway’s motion to strike
Vezaldenos’s PAGA claim -- asserted for the first time in her

3
2009 second amended complaint -- as time-barred. Because
Safeway ended its challenged practice on June 17, 2007, the
court measured the applicable one-year limitations period
from that date, yielding a deadline of June 17, 2008. It
concluded that the statute of limitations barred Vezaldenos’s
claim because she waited until after that deadline to give
notice to the Labor and Workforce Development Agency
(LWDA), as PAGA required her to do before filing suit. The
court rejected her argument that the PAGA claim related
back to the April 2007 date of the original complaint. The
court reasoned that the notice requirement serves the
LWDA’s interest in acting before information becomes stale;
here, the LWDA received no notice prior to the 2007 original
complaint and only untimely notice from Vezaldenos’s 2008
notice letter.
Finding no error, we affirm.

RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
A. Complaints and Class Certification
Before June 17, 2007, Safeway did not pay employees
in its Vons and NorCal divisions premium wages for missed
meal periods under Labor Code section 226.7 regardless of
the reason for the missed meal periods. But beginning June
17, 2007, Safeway began to pay premium wages almost
automatically for all missed, short, or late meal periods
shown in reports generated by its new time-keeping system.
Its older time-keeping systems also generated time punch

4
data that could be used to determine if and when employees
took or missed meal periods before June 17, 2007.
Appellants all formerly worked for Safeway as store-
level hourly employees in its Vons or NorCal divisions,
including before June 17, 2007. Appellant Esparza initiated
this action in April 2007, bringing a cause of action under
the UCL and causes of action under the Labor Code.
Neither the original complaint nor a subsequently filed first
amended complaint included a PAGA cause of action. On
July 7, 2008, over a year after Esparza filed the original
complaint, all appellants served the LWDA with a notice of
Labor Code violations for which appellants planned to seek
civil penalties under PAGA.1 Later that month, the LWDA
sent appellants a response letter informing them the LWDA
did not intend to investigate. Seven months later, on
February 26, 2009, appellants filed the operative second
amended complaint, adding, for the first time, a PAGA cause
of action.
Appellants filed a motion to certify the following class
on their UCL cause of action: “All individuals who worked as
an hourly paid store level employee in Safeway Inc.’s NorCal
or Vons division in California at any time on or after

1 PAGA “authorizes an employee to bring an action for civil
penalties on behalf of the state against his or her employer for
Labor Code violations committed against the employee and fellow
employees, with most of the proceeds of that litigation going to
the state.” (Iskanian v. CLS Transportation Los Angeles, LLC
(2014) 59 Cal.4th 348, 360 (Iskanian).)

5
December 28, 2001 and before June 17, 2007.” The trial
court certified this class, and we denied Safeway’s writ
petition challenging the certification order. (Safeway, supra,
238 Cal.App.4th at p. 1153.) We found that Safeway had
forfeited, for purposes of writ review, challenges to the
merits of appellants’ restitution theory and proposed
measure of restitution. (Id. at pp. 1162-1163.) We expressly
noted, however, that Safeway remained free to challenge the
merits of appellants’ theory in the trial court. (Id. at
p. 1162.)

B. Summary Adjudication of UCL Claim
Accepting our invitation, Safeway filed a motion for
summary adjudication of the UCL claim. Safeway faulted
appellants for failing to identify measurable amounts of
money or property that Safeway took from the class
members by means of its no-premium-wages policy.
In their opposition, appellants proposed to measure
classwide restitution by identifying all short, missed, and
late meal periods before June 17, 2007 -- regardless of the
reason each period was short, missed, or late -- and
multiplying the number of those meal periods by the
corresponding class members’ hourly pay rates. Because the
meal period premium wage is equal to an hour’s pay (Lab.
Code, § 226.7, subd. (c)), this proposed measure of restitution
would effectively award premium wages for every short,
missed, or late meal period reflected in Safeway’s time punch
data. Appellants relied on a declaration executed by

6
economist Andrew Safir, Ph.D., who discussed neither this
proposed measure nor any other. They offered no evidence
to measure the class members’ loss by reference to Safeway’s
curing its noncompliance with the statute, as they had
proposed when seeking certification. (Safeway, supra, 238
Cal.App.4th at pp. 1153, 1162.) Moreover, as their counsel
confirmed to the trial court at oral argument, appellants no
longer proposed a market value approach.
The trial court granted Safeway’s motion for summary
adjudication of the UCL claim, reasoning that appellants
“alleged no viable theory upon which [the class] could obtain
restitution or injunctive relief.” The court deemed
appellants’ proposal for restitution “invalid in theory and
practice,” emphasizing two problems with it.
First, the court concluded, appellants improperly
sought to recover an economic sum to which the class
members had no vested right. Noting that appellants
effectively sought premium wages for every short, missed, or
late meal period reflected in Safeway’s time punch data, the
court observed that the class members’ interest in premium
wages could not vest, absent proof of actual violations of the
meal period statute. Yet appellants had “eschew[ed] the
individualized inquiries” necessary to such proof in order to
obtain class certification.
Second, the court concluded, appellants’ approach to
restitution relied on Dr. Safir’s declaration, which the court
struck from the record as inadmissible under Sargon, supra,
55 Cal.4th 747, 772. The court faulted Dr. Safir for

7
providing no data and relying instead on a “tautological
approach . . . .” The court identified several assumptions
framing Dr. Safir’s central illustration: (1) workers have job
offers from both Safeway and Competitor; (2) the jobs at
Safeway and Competitor are exactly the same except that
Safeway has a no-premium-wages policy and Competitor
does not; and (3) workers know about this one and only
difference because the market is perfectly competitive.2 If
these assumptions were true, rational workers would act on
their knowledge of Competitor’s superior premium wage
policy by choosing to work for Competitor instead of
Safeway. The “mandatory logical implication[],” the court
noted, was that Safeway would have to pay higher wages
than Competitor to convince employees to forego Competi-
tor’s superior premium wage policy, and that difference in
wages paid by Safeway and by Competitor “would quantify
the ‘expected value’ prospective workers place on the
Competitor’s superior meal period policy.” But on these
assumptions, Safeway would have paid its employees
additional wages equaling that expected value. Thus,
Safeway would have taken nothing from its employees that a
court could properly return to them as restitution.3

2 The court helpfully referred to “Competitor” where
Dr. Safir referred to “Job A” or “Employer A,” and to “Safeway”
where he referred to “Job B,” “Employer B,” or “Firm B.”
3 On appeal, appellants agree with the trial court that if the
class members actually operated in a market like the one posited
(Fn. is continued on the next page.)

8
 Additionally, the court faulted Dr. Safir for
invalidating his own approach by reversing an assumption
vital to it. In the last paragraph of his declaration, Dr. Safir
assumed that workers chose jobs “without realizing” that
their new employers had inferior premium wage policies. If
workers did not know the difference between employers’
premium wage policies and therefore could not act on that
knowledge when choosing between employers, the court
observed, their choices could “never quantify the sum they
would place on the meal period policy at issue.” Dr. Safir’s
discussion of hypothetical worker choices therefore failed to
support his suggestion that “it would be possible empirically
to determine the value workers placed on an employer’s
policy of paying meal period penalties.” Noting that “[w]hen
expert opinion is ‘clearly invalid and unreliable,’ it is
inadmissible [citing Sargon, supra, 55 Cal.4th at p. 772],”
the court struck the expert declaration in its entirety.

C. Order Striking PAGA Claim
Continuing to litigate their remaining causes of action,
appellants filed a PAGA trial plan narrowing their PAGA
cause of action to appellant Vezaldenos’s claim based on
violations before June 17, 2007. Soon thereafter, Safeway
filed a motion to strike what remained of the PAGA cause of

by Dr. Safir, they would suffer no loss and restitution would be
unnecessary.

9
action. Among other arguments, Safeway argued the PAGA
claim was barred by the statute of limitations because
appellants asserted it for the first time in February 2009,
more than one year after the violations ended in June 2007.
Appellants asserted the claim was not time-barred, arguing
it should be deemed to relate back to the April 2007 original
complaint.
The trial court struck the cause of action as time-
barred. It was undisputed that a one-year statute of
limitations applied. The court identified June 17, 2007, as
the last date Vezaldenos was aggrieved by the underlying
violations because Safeway ended its challenged practice on
that date. Accordingly, the court measured the one-year
limitations period from that date, yielding a deadline of June
17, 2008. Because Vezaldenos did not give notice to the
LWDA until July 7, 2008 -- after the deadline -- she waited
too long and the statute of limitations barred her claim.
The court rejected appellants’ argument that the
untimely PAGA claim -- first asserted in 2009 -- related back
to the April 2007 date of the original complaint. The court
explained that the relation back doctrine is traditionally and
properly applied where the sole actor other than the plaintiff
is the defendant, who receives notice of the need to
investigate from the original complaint. Here, however,
there was a third actor: the LWDA. The LWDA received no
notice from the original complaint -- which contained no
PAGA claim -- and only untimely notice from Vezaldenos’s
notice letter, filed more than a year later. The court

10
distinguished appellants’ primary authority on the ground
that it applied the original 2003 version of PAGA, which
contained no pre-filing LWDA notice requirement. (See
Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157,
1195-1196, 1199-1200 (Amaral).)
The parties subsequently resolved appellants’
remaining causes of action and submitted a stipulated
judgment, which the trial court entered. Appellants filed a
timely notice of appeal.

DISCUSSION
A. The Trial Court Properly Granted Safeway
Summary Adjudication on the UCL Claim
1. Standards of Review
We review an order on a motion for summary
adjudication de novo. (Case v. State Farm Mutual
Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 401.)
“‘A summary adjudication motion is subject to the same
rules and procedures as a summary judgment motion.’”
(Ibid.) “Generally, ‘the party moving for summary judgment
bears an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material
fact; if he carries his burden of production, he causes a shift,
and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the
existence of a triable issue of material fact.’ [Citation.]”
(Ibid.) This burden-shifting framework changes neither our

11
presumption that the judgment is correct nor the burden on
appellants to establish error on appeal. (Ibid.)
We review de novo any conclusions of law on which a
trial court bases its exclusion of an expert declaration.
(Sargon, supra, 55 Cal.4th at p. 773.) Otherwise, we review
the exclusion of an expert declaration for abuse of discretion.
(Ibid.) An expert declaration is inadmissible if it is “(1)
based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative.”
(Id. at pp. 771-772.)

2. Governing Principles
Labor Code section 512 and the wage orders adopted by
the Industrial Welfare Commission (IWC) require employers
to provide employees meal periods.4 (Safeway, supra, 238
Cal.App.4th at pp. 1147-1148.) As noted, they do not require
employers to police meal periods to ensure that employees do
no work. (Id. at p. 1148, citing Brinker, supra, 53 Cal.4th at
p. 1040.) An employer satisfies its obligation to provide a

4 Here, “the applicable wage order is IWC wage Order 7-2001
(Cal. Code Regs., tit. 8, § 11070), which obliges employers to
provide at least one 30-minute meal break for shifts of more than
five hours (absent a waiver available only in limited
circumstances) (id., subd. (11)(A)), requires employers to record
meal breaks (id., subd. (7)(A)(3)), and permits an ‘on duty’ meal
break only with the employee’s express written agreement (id.,
subd. (11)(C)).” (Safeway, supra, 238 Cal.App.4th at p. 1160.)

12
meal period “‘if it relieves its employees of all duty,
relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing
so.’” (Safeway, supra, at p. 1148, quoting Brinker, supra, at
p. 1040.) “In contrast, if the employer knows that meal
breaks are missed, shortened, or unduly delayed because the
employer has instructed the employee to work, or has
otherwise impeded the taking of breaks, that duty is
contravened, absent a suitable waiver or agreement by the
employee.” (Safeway, at p. 1155, citing Brinker, at pp. 1039-
1040, 1049.)
“[T]he remedy for a violation of the statutory obligation
to provide IWC-mandated meal . . . periods is ‘one additional
hour of pay at the employee’s regular rate of compensation
for each work day that the meal . . . period is not provided.’”
(Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th
1244, 1256, quoting Lab. Code, § 226.7, subd. (b).) The
additional hour of pay required by Labor Code section 226.7
is a premium wage. (Safeway, supra, 238 Cal.App.4th at
p. 1148, citing Murphy v. Kenneth Cole Productions, Inc.
(2007) 40 Cal.4th 1094, 1102-1111.) When unlawfully
denied a meal period, an employee’s interest in the premium
wage vests, and the employee is immediately entitled to the
premium wage without making a demand for it. (Safeway,
supra, at p. 1155 & fn. 5, citing Murphy, supra, 40 Cal.4th at
p. 1108.)

13
 A practice of not paying premium wages can violate the
UCL. (Safeway, supra, 238 Cal.App.4th at p. 1155.) The
UCL prohibits, as an unfair business practice, a “practice of
not paying premium wages for missed, shortened, or delayed
meal breaks attributable to the employer’s instructions or
undue pressure, and unaccompanied by a suitable employee
waiver or agreement.” (Safeway, supra, at pp. 1155-1156.)
Injunctive relief is the primary remedy under the UCL. (In
re Tobacco Cases II (2015) 240 Cal.App.4th 779, 790.) As an
ancillary remedy, the UCL also authorizes recovery of
restitution “‘to restore to any person in interest any money
or property . . . which may have been acquired by means of’”
a prohibited business practice. (In re Tobacco Cases II,
supra, at p. 790, quoting Bus. & Prof. Code, § 17203.) UCL
restitution “‘operates only to return to a person those
measurable amounts which are wrongfully taken by means of
an unfair business practice.’” (In re Tobacco Cases II, at
p. 795, quoting Day v. AT & T Corp. (1998) 63 Cal.App.4th
325, 339.) Injunctive relief and restitution are the only
remedies available under the UCL. (Safeway, supra, at
p. 1147.)
A UCL claim must be based on the existence of harm
supporting injunctive relief or restitution. (See Safeway,
supra, 238 Cal.App.4th at pp. 1154, 1158 [recognizing
existence of harm supporting restitution as a fact necessary
to establish liability on appellants’ UCL claim, on which they
did not seek injunctive relief]; Madrid v. Perot Systems Corp.
(2005) 130 Cal.App.4th 440, 445, 452-467 [affirming

14
dismissal, on demurrer, of UCL putative class claims where
plaintiff “alleged no viable theory upon which he could
obtain restitution or injunctive relief”].) To support the
recovery of restitution, the harm must be measurable. (In re
Tobacco Cases II, supra, 240 Cal.App.4th at pp. 791-802
[trial court lacked discretion to order restitution after bench
trial, where plaintiff failed to establish “any price/value
differential” supporting a market measure of restitution and
failed to prove “entitlement to an alternative measure of
restitution proper under all the circumstances”]; Tucker v.
Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 228,
229 [plaintiffs “could not present UCL class claims for
restitution” absent showing that the class members were due
measurable restitution].)

3. Our Prior Decision
Our prior decision found the trial court did not abuse
its discretion in certifying appellants’ UCL class. (Safeway,
supra, 238 Cal.App.4th at p. 1153.) We did not examine the
merits except to the limited extent necessary to determine
the propriety of certification. (Id. at pp. 1147, 1153.) We
declined to resolve Safeway’s merits challenges to appellants’
theory of restitution and, separately, appellants’ proposed
measure of restitution, finding Safeway had forfeited its
challenges by failing to raise them until the appellate reply
brief. (Id. at pp. 1162-1163.) We noted that Safeway
remained free to attack appellants’ theory on the merits in
the trial court. (Id. at p. 1162.)

15
 Because appellants rely on it, we summarize our prior
discussion of appellants’ theory. In support of certification,
appellants did not propose to prove that Safeway maintained
a common policy or practice of unlawfully denying meal
periods. (See Safeway, supra, 238 Cal.App.4th at pp. 1160-
1161 [rejecting Safeway’s argument that proof of common
policy or practice of denying meal periods was necessary to
appellants’ recovery of classwide restitution because
argument was directed at theory appellants did not assert].)
Instead, appellants offered evidence that Safeway
maintained a common policy or practice of “never paying
meal break premium wages when required . . . .” (Id. at
p. 1161.) We held that a policy or practice of failing to pay
premium wages after meal period violations is an unfair
business practice within the meaning of the UCL. (Safeway,
supra, at pp. 1155-1156.)
We recognized, however, that appellants could not
establish liability for this policy or practice without common
proof of “the existence of harm supporting a recovery of
restitution. . . .”5 (Safeway, supra, 238 Cal.App.4th at
p. 1158.) Appellants insisted that the harm underlying their
5 Alternatively, the existence of harm supporting injunctive
relief could have sufficed. (Cf. Clayworth v. Pfizer, Inc. (2010) 49
Cal.4th 758, 790 [“[T]he right to seek injunctive relief under
section 17203 is not dependent on the right to seek restitution”].)
But appellants conceded the no-premium-wages policy ended in
June 2007 and did not seek to enjoin it. (Safeway, supra, 238
Cal.App.4th at p. 1152.)

16
liability theory was not unpaid premium wages. (Ibid.)
Their liability theory was premised on Safeway’s “‘classwide
practice of ignoring the statutory mandate’” of Labor Code
section 226.7. (Safeway, supra, at p. 1152.) This practice
allegedly harmed the class members by denying them the
value of working for an employer who did not categorically
ignore the statute’s protections, which appellants called “the
‘compensation guarantee and enhanced enforcement’
implemented by section 226.7.” (Id. at p. 1158; see also id. at
p. 1153 [quoting appellants’ contention that “‘[h]ad they
taken comparable jobs at comparable pay with other
(presumably law abiding) retailers, the class members would
have received the benefits of these statutory protections and
would not have suffered this loss’”].) We recognized that
appellants could use time punch data and an evidentiary
presumption to attempt to establish that Safeway’s error in
ignoring the premium wage statute was sufficiently deep
and system-wide to deny all class members the statutory
guarantee.6 (See id. at pp. 1158-1160.)
Appellants proposed to use a market value approach to
measure the value of the statutory protections taken from

6 We acknowledged that the time punch data and evidentiary
presumption could establish that “a significant number of
employees” accrued premium wages, but distinguished such a
showing from the different showing that “all -- or virtually all --
class members” accrued them. (Safeway, supra, 238 Cal.App.4th
at p. 1159.)

17
the class members. (Safeway, supra, 238 Cal.App.4th at
pp. 1153, 1162 [“[Appellants] do not seek the unpaid accrued
meal break premium wages, but instead maintain that
valuing the loss of the ‘statutory protections’ to the class can
be determined by a ‘‘‘market value” approach’”].) Their
proposed market value approach would have relied primarily
on evidence of Safeway’s own conduct in bringing itself into
compliance with the premium wage statute. (Ibid.)
Our decision did not approve appellants’ theory of
restitution. Rather, it held that for purposes of class
certification, appellants had adequately demonstrated their
theory did not rely on individualized proof that class
members had been improperly denied meal breaks.
(Safeway, supra, 238 Cal.App.4th at pp. 1161-1163.) Indeed,
we expressly declined to rule on the ultimate viability of
appellants’ theory of restitution or any proposed measure of
restitution, noting that “[f]or purposes of our review, it is
sufficient that the proposed measure does not require the
litigation of issues unsuitable for class certification.”7 (Id. at
p. 1163.)

7 Contradicting the plain language in our opinion, appellants
assert that we approved their theory on the merits in a manner
establishing law of the case. Not so. We could establish law of
the case only by stating principles necessary to our decision.
(Kowis v. Howard (1992) 3 Cal.4th 888, 893.) Issues we expressly
declined to address due to forfeiture were plainly not necessary to
our decision.

18
 4. Analysis
The trial court properly granted Safeway summary
adjudication on appellants’ UCL claim because appellants
failed to submit evidence raising a triable issue of material
fact regarding whether Safeway’s no-premium-wages policy
harmed the class members in a manner entitling them to the
only UCL remedy appellants sought, viz., restitution. Even
assuming appellants raised a triable issue regarding
whether Safeway took from the class members the value of
the statutory guarantee, they failed to raise a triable issue
regarding their ability to measure that value.
Appellants’ reliance on time punch data and the class
members’ hourly pay rates did not raise a triable issue of
material fact regarding whether they could measure the
value of the statutory guarantee taken from the class
members. We previously recognized that appellants could
use time punch data, together with an evidentiary
presumption, to attempt to establish that Safeway’s error in
ignoring the premium wage statute was sufficiently deep
and system-wide to deny all class members the statutory
guarantee. (See Safeway, supra, 238 Cal.App.4th at
pp. 1158-1160.) We expressed no opinion on how, or even
whether, the time punch data could be used to measure the
value of that denial. (Id. at p. 1163.)
On appeal, as in the trial court, appellants effectively
propose to use the time punch data and hourly pay rates to
measure accrued premium wages, not the value of the
statutory guarantee. Appellants emphasize that the

19
Legislature established an hour’s pay as a measure of the
value of a violation of the meal period statute by providing a
remedy equaling an hour’s pay. But as the trial court
correctly observed, appellants expressly eschewed
predicating liability on classwide violations of the meal
period statute. Appellants cannot recover the remedy for
classwide violations while disclaiming any intent to prove
them.8 (Culley v. Lincare Inc. (E.D.Cal., Aug. 2, 2017, No.
2:15CV00081MCE-CMK) 2017 U.S. Dist. LEXIS 121834, *9-
*10 [granting defendants’ summary judgment and
decertification motions on UCL class claim premised on
same theory as appellants’, because plaintiff sought to
recover per-violation premium wages without proving
violations].)
Appellants attempt to conflate the remedy for a
statutory violation with the value of the statutory guarantee
to receive that remedy. At the certification stage, they
recognized that this equivalence could not be established
without evidence. (See Safeway, supra, 238 Cal.App.4th at
pp. 1153, 1162 [explaining that appellants proposed a
market value measure relying on evidence that Safeway
effectively identified the least costly method of correcting its

8 At oral argument, appellants’ counsel conceded that the
recovery being sought, as measured by the premium wage, was
the same recovery to which appellants would have been entitled
had they proven that each missed meal period was, in fact, a
violation of Safeway’s duty.

20
noncompliant policy].) However, appellants produced no
evidence to support this equivalence in opposition to
Safeway’s motion for summary adjudication.
Dr. Safir’s declaration, on which appellants also relied,
did not raise a triable issue of material fact regarding
whether appellants could measure the value of the statutory
guarantee taken from the class members. While Dr. Safir
opined that “wage losses from the failure to receive the
expected value of the right to receive ‘premium pay’ when
due . . . can be monetized in an economically reasonable
fashion,” he neither articulated a methodology for
quantifying the money lost by the class members nor
attempted to apply one to quantify it.
Indeed, Dr. Safir discussed only imaginary matter.
Appellants’ counsel agreed with the trial court that Dr. Safir
“entirely avoid[ed] the topic of reality.” Rather than discuss
facts, Dr. Safir discussed a hypothetical example. He
assumed the existence of two employers, identical in all
respects except that the first paid premium wages when due
and the second -- like Safeway, formerly -- did not. Dr. Safir
stated that even when workers for neither employer would
receive premium wages (because none would be due),
workers for the second employer would receive less value
from their jobs, as only they would be deprived of the value
of the guarantee of premium wages.
Dr. Safir did not quantify this value or explain how it
could be quantified, even hypothetically. He did not discuss
the wages the no-premium-wages employer “should” pay.

21
Nor, as the trial court observed, did he discuss the higher
wages the employer would have to pay in his hypothetical,
perfectly competitive market. On the contrary, Dr. Safir
assumed the employer and its competitor paid the same $10-
per-hour wage. This $10 figure is the sole quantified sum
mentioned in his declaration. Dr. Safir attempted to
quantify neither the wages an employer like Safeway would
have had to pay in his hypothetical market nor the wages it
should have paid in the real world. He never even
articulated a method to calculate such wages.9 Thus, the

9 Dr. Safir failed to identify any method to quantify the value
of the statutory guarantee despite discussing, in an inconsistent
manner, potential perspectives from which it allegedly could be
quantified. He stated that “[t]he value of having the right to
receive the ‘premium pay’ when due must be determined ex ante.”
He implied that measuring the value ex ante means measuring it
from the perspective of workers who, relying on their
expectations of employers’ premium wage policies, compared
employers before accepting a job. If Dr. Safir believed the value
must be determined ex ante, then his opinion undermined
appellants’ proposal to measure it by calculating accrued
premium wages ex post. On the other hand, Dr. Safir stated that
equally clear “ex post wage losses” resulted when workers chose a
no-premium-wages employer without realizing that the employer
did not pay premium wages. As the trial court noted, a worker’s
choice between two employers cannot reveal how the worker
valued their premium wage policies if the worker had no idea
what the policies were. Regardless, Dr. Safir neither identified
nor attempted to apply any methodology, ex ante or ex post, to
quantify the value of the statutory guarantee.

22
matter he discussed and his reasoning based on it provided
no support for his opinion that appellants could quantify the
value allegedly taken from the class members. The trial
court therefore properly struck the declaration. (Sargon,
supra, 55 Cal.4th at pp. 771-772.)
In their reply brief, appellants raise five challenges to
the trial court’s analysis of Dr. Safir’s declaration. We
address them in turn.
First, appellants fault the trial court for giving no
indication that it liberally construed Dr. Safir’s declaration.
Courts liberally construe declarations submitted in
opposition to summary adjudication only to the extent the
declarations are admissible. (Bozzi v. Nordstrom, Inc. (2010)
186 Cal.App.4th 755, 761.) As explained, the trial court
properly held Dr. Safir’s opinion evidence inadmissible.
Moreover, even if liberally construed, the declaration did not
raise a triable issue of material fact.
Second, appellants mischaracterize Dr. Safir’s
declaration as unopposed. Respondents opposed Dr. Safir’s
declaration by filing objections to it. Respondents also
argued for the exclusion of Dr. Safir’s declaration in their
reply brief. Relying on Reid v. Google, Inc. (2010) 50 Cal.4th
512, 533-534, appellants argue that Safeway’s objections
must be deemed overruled because the trial court did not
explicitly rule on them. Regardless of any ruling (or failure
to rule) on objections, the trial court retained discretion to
exclude Dr. Safir’s opinion evidence. (Wegner et al., Cal.
Practice Guide: Civil Trials & Evidence (The Rutter Group

23
2018) ¶¶ 8:786 to 8:787; Evid. Code, § 803 [“The court may,
and upon objection shall, exclude testimony in the form of an
opinion that is based in whole or in significant part on
matter that is not a proper basis for such an opinion”].) It
did just that.
Third, appellants fault the trial court for purportedly
failing to evaluate Dr. Safir’s declaration under the criteria
of Evidence Code section 801. Appellants support this
argument only by describing Dr. Safir’s declaration as a
short “illustration of basic economic choices” conveyed
through a simple hypothetical framed by “straightforward
assumptions.” Assuming this description is true, it does not
demonstrate that Dr. Safir relied on matter on which he
could reasonably rely for his opinions, as required by
Evidence Code section 801. (Sargon, supra, 55 Cal.4th at
pp. 771-772.) Moreover, Evidence Code section 802,
governing judicial review of the reasoning for an expert
opinion, supplied an independent basis for excluding
Dr. Safir’s declaration. (Sargon, at pp. 771-772; see also id.
at pp. 776, 777, 778 [affirming exclusion of expert opinion in
part because the expert used circular reasoning based on
tautological “observations of the marketplace” to measure
companies’ innovativeness by their market share].)
Fourth, appellants assert, without explanation, that
the trial court “appears to have allowed its own opinion
about the subject matter [to] affect its evaluation of the
declaration.” We find no support for this in the record.

24
 Fifth and finally, appellants contend, again without
explanation, that the trial court “appears to have relied on
Dr. Safir’s declaration to reach conclusions about the merits
. . . even though the court struck the declaration.” Again,
the record does not support the assertion. The trial court
accurately noted that appellants relied on Dr. Safir’s
suggestion that “it would be possible empirically to
determine the value workers placed on an employer’s policy
of paying meal period penalties.” The court reasonably
concluded Dr. Safir’s declaration was not admissible
evidence of a “sound approach to restitution.” Accordingly, it
did not abuse its discretion in striking the declaration.
(Sargon, supra, 55 Cal.4th at pp. 771-772.)
In sum, appellants failed to submit evidence raising a
triable issue of material fact regarding whether Safeway’s
challenged conduct harmed the class members in a manner
entitling them to restitution. Thus, the trial court properly
granted Safeway summary adjudication on appellants’ UCL
claim.

B. The Trial Court Properly Struck the PAGA
Claim
1. Standard of Review
Appellants and Safeway both urge us to review the
trial court’s order striking the PAGA claim for abuse of
discretion. As appellants assert and Safeway does not
dispute, however, whether a trial court applied the correct
legal standard in exercising its discretion is a question of law

25
requiring de novo review. (Eneaji v. Ubboe (2014) 229
Cal.App.4th 1457, 1463.)

2. Governing Principles
Before bringing a PAGA action, an aggrieved employee
must give the LWDA written notice of the facts and theories
supporting the Labor Code violations alleged. (Lab. Code,
§§ 2699.3, subds. (a)(1)(A), (b)(1), & (c)(1)(A) [civil action
“shall commence only after” aggrieved employee gives
notice].) As California courts have repeatedly recognized,
PAGA’s pre-filing notice requirement is a mandatory
precondition to bringing a PAGA claim. (E.g., Khan v.
Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, 808-810
[affirming summary judgment against PAGA plaintiff due to
noncompliance with the pre-filing notice requirement];
Williams v. Superior Court (2017) 3 Cal.5th 531, 545 [PAGA
plaintiff must provide pre-filing notice as a “condition of
suit”].) The employee may bring a PAGA action only after
the LWDA either fails to act within a specified time or
notifies the employee that the LWDA does not intend to take
further action. (Lab. Code, § 2699.3, subd. (a)(2)(A), (B); see
also id. § 2699.5 [these procedures apply to alleged violations
of Labor Code section 226.7].)
A PAGA action is subject to a one-year statute of
limitations. (Brown v. Ralphs Grocery Co. (2018) 28
Cal.App.5th 824, 839 (Brown), citing Code Civ. Proc., § 340,
subd. (a).) Generally, a statute of limitations begins to run
when a cause of action accrues, meaning when the cause of

26
action is complete with all of its elements. (Pineda v. Bank
of America, N.A. (2010) 50 Cal.4th 1389, 1397.) Violations of
a continuing or recurring obligation may give rise to
“continuous accrual” of causes of action, meaning that “‘a
cause of action accrues each time a wrongful act occurs,
triggering a new limitations period.’ [Citation.]” (Aryeh v.
Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1199;
see also Cuadra v. Millan (1998) 17 Cal.4th 855, 859
[recognizing continuous accrual of causes of action for
unpaid wages], disapproved on another ground by Samuels
v. Mix (1999) 22 Cal.4th 1.)
The relation back doctrine allows a court to deem an
amended complaint filed at the time of an earlier complaint
if both complaints rest on the same general set of facts,
involve the same injury, and refer to the same instrument-
tality. (Brown, supra, 28 Cal.App.5th at p. 841.) The
relation back doctrine “cannot be used to frustrate the intent
of the Legislature to require compliance with administrative
procedures as a condition to filing an action.” (Ibid., citing
Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100,
1113.) Thus, “the rule of relation back does not operate to
assign the performance of a condition precedent to a date
prior to its actual occurrence.” (Wilson v. People ex rel. Dept.
Pub. Wks. (1969) 271 Cal.App.2d 665, 669.)

3. Analysis
The trial court properly concluded Vezaldenos’s PAGA
claim was untimely. Vezaldenos narrowed her PAGA claim

27
to rest on alleged violations occurring before June 17, 2007.
Causes of action for those violations accrued no later than
that date. (See Aryeh, supra, 55 Cal.4th at p. 1199; Cuadra,
supra, 17 Cal.4th at p. 859.) The one-year limitations period
for any PAGA cause of action therefore expired no later than
June 17, 2008. Vezaldenos neither asserted a PAGA claim
nor even filed an LWDA notice until July 2008 -- after the
limitations period had expired -- and did not first assert her
PAGA claim until even later, in February 2009. Her PAGA
claim was therefore time-barred unless it related back to the
original complaint.10
The trial court properly rejected Vezaldenos’s
argument that her PAGA claim related back to the original
complaint. As the court noted, Amaral, on which appellants
relied, is inapposite, as it considered an earlier version of
PAGA containing no pre-filing LWDA notice requirement.
(Amaral, supra, 163 Cal.App.4th at pp. 1195-1196, 1199-
1200; Stats. 2003, ch. 906, § 2 [enacting PAGA]; Stats. 2004,
ch. 221, § 4 [adding Labor Code section 2699.3 and its LWDA
notice requirements].) Further, we find no error in the
court’s reasoning that applying the relation back doctrine
10 We need not decide whether Vezaldenos’s PAGA claim
could relate back to the date of her LWDA notice. (Cf. Culley v.
Lincare Inc. (E.D.Cal. 2017) 236 F.Supp.3d 1184, 1192 [relating a
PAGA claim back to the date of an LWDA notice filed within the
limitations period].) The PAGA claim would be time-barred even
if it related back to the LWDA notice because appellants provided
the notice in July 2008 -- after the limitations period had expired.

28
despite a plaintiff’s failure to give notice to the LWDA within
the limitations period would frustrate the LWDA’s interest
in receiving notice before information becomes stale.
The animating purpose of PAGA as a whole is to
promote the enforcement of labor laws within its scope.
(Williams, supra, 3 Cal.5th at p. 545 [“The Legislature
enacted PAGA to remedy systemic underenforcement of
many worker protections”].) But limitations on PAGA’s
scope show that its law enforcement purpose is not absolute.
(See Iskanian, supra, 59 Cal.4th at p. 387 [noting that to
avoid “‘abuse’” by private plaintiffs, the Legislature chose not
to give non-employees standing to prosecute PAGA actions].)
Because the notice requirement is part of PAGA, the
statute’s overall remedial purpose does not allow courts to
frustrate the Legislature’s choice to make it a condition
precedent to suit. (Cf. J.M. v. Huntington Beach Union High
School Dist. (2017) 2 Cal.5th 648, 654 [courts cannot
construe away procedural requirements of the Government
Claims Act in deference to the Legislature’s special
solicitude to claims of injured minors because the
Legislature manifested that solicitude in a statutory
framework that includes those procedural requirements].)
Moreover, PAGA’s purpose is not to promote private
enforcement without regard to the LWDA. On the contrary,
our Supreme Court has stated that PAGA’s “sole purpose is
to vindicate [the LWDA’s] interest in enforcing the Labor
Code . . . .” (Iskanian, supra, 59 Cal.4th at pp. 388-389,

29
italics added.) The court subsequently explained that the
notice requirement serves that purpose:
“The evident purpose of the notice requirement is
to afford the relevant state agency, the Labor and
Workforce Development Agency, 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 Lab. Code, § 2699.3,
subd. (a)(1)(B)), again thereby promoting an
informed agency decision as to whether to
allocate resources toward an investigation.”
(Williams, supra, 3 Cal.5th at pp. 545-546.) Relatedly, the
legislative history of the amendment that added the LWDA
notice requirement includes an observation that the
amendment would improve PAGA by allowing the LWDA to
act first on covered violations. (Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 375, citing Sen.
Rules Com., Off. of Sen. Floor Analyses, analysis of Sen. Bill
No. 1809 (2003–2004 Reg. Sess.) as amended July 27, 2004,
p. 5.) Appellants’ requested application of the relation back
doctrine would improperly encourage private plaintiffs to act
first by litigating Labor Code claims before giving untimely
notice to the LWDA and adding untimely PAGA claims to
their existing litigation. (See Harris v. Vector Marketing
Corp. (N.D.Cal., Jan. 5, 2010, No. C-08-5198 EMC) 2010 U.S.
Dist. LEXIS 5659, at *11 [aggrieved employee’s existing

30
litigation may dissuade the LWDA from prosecuting,
undermining the notice requirement’s function]; cf. Bjorndal,
supra, 211 Cal.App.4th at p. 1110 [civil discovery could
improperly supersede agency investigation if whistleblowers’
pursuit of litigation could equitably toll Whistleblower
Protection Act deadline for pre-suit administrative
complaint].)
We find additional support for the trial court’s
conclusion in a decision rendered after the court’s ruling. In
Brown, supra, 28 Cal.App.5th at page 829, the court held
that untimely PAGA claims could not relate back to an
earlier complaint except to the extent the earlier complaint
was preceded by an adequate LWDA notice for those claims.
The plaintiff in Brown served the LWDA with notice of
certain Labor Code violations in 2009. (Brown, supra, at
p. 830.) She then filed a civil complaint that included a
PAGA cause of action premised on the same Labor Code
violations identified in her 2009 notice. (Brown, supra, at
p. 830.) The limitations period for her PAGA claims expired
in 2010. (Brown, at p. 839.) In 2016, the plaintiff served the
LWDA with notice of new and different Labor Code
violations and amended her civil complaint to add PAGA
claims premised on these violations. (Brown, supra, at
pp. 832-833.) The trial court sustained the defendants’
demurrer to the 2016 complaint. (Id. at p. 833.)
The Court of Appeal agreed that the 2016 notice could
not satisfy the LWDA notice requirement because the
plaintiff served it after the statute of limitations had run.

31
(Brown, supra, 28 Cal.App.5th at p. 839.) It did find the
2009 notice satisfied the requirement with respect to one of
the Labor Code violations it alleged, and remanded for the
trial court to consider the extent to which any of the
untimely PAGA claims could relate back to the original
PAGA claim premised on the “adequately noticed” violation.
(Brown, supra, at pp. 837-838, 841, 842.) The clear import of
Brown’s holding is that an untimely PAGA claim may relate
back to an earlier complaint only if the complaint was
preceded by timely notice to the LWDA. (Brown, supra, at
pp. 829, 842.)
Here, Vezaldenos asked the trial court to relate her
untimely 2009 PAGA claim back to a 2007 complaint raising
no PAGA claim and alleging no pre-filing notice to the
LWDA. Thus, to an even greater extent than the plaintiff in
Brown, she improperly sought to use the relation back
doctrine “to frustrate the intent of the Legislature to require
compliance with administrative procedures as a condition to
filing an action.” (Brown, supra, 28 Cal.App.5th at p. 841,
citing Bjorndal, supra, 211 Cal.App.4th at p. 1113; see also
Bjorndal, at p. 1113 [directing trial court to sustain
demurrer to Whistleblower Protection Act claim where
plaintiff failed to comply with deadline for required pre-suit
administrative complaint, reasoning that plaintiff’s
requested use of the relation back doctrine “would violate the
plain intent of the Legislature to require such compliance as
a prerequisite to suit”]; see also Wilson, supra, 271
Cal.App.2d at pp. 667-669 [untimely substitution of the state

32
for a Doe defendant could not relate back to complaint’s
original filing date, where plaintiff failed to satisfy
Government Claims Act requirement to present a written
claim to the state or to secure an order relieving her of that
duty before filing the complaint, even though she secured
such an order after]; Mazzei v. Regal Entertainment Group
(C.D.Cal., Dec. 13, 2013, SACV 13-1284-DOC (AGRx)) 2013
U.S. Dist. LEXIS 177883, at *12 [following Wilson in PAGA
context, reasoning “amendment cannot retroactively bestow
administrative compliance that did not exist when the
plaintiff filed the initial complaint”].)
Appellants mischaracterize Brown’s holding to suggest
that a PAGA claim relates back to an earlier complaint
“where the PAGA notice and claim are filed while the
plaintiff is still employed and so within the initial statutory
period . . . .” Nowhere does Brown state or suggest such a
holding. Similarly, appellants attempt to distinguish Wilson
and federal cases on which Safeway relies on the ground
that Vezaldenos was still employed by Safeway when she
filed her LWDA notice and PAGA claim. But the end of
Vezaldenos’s employment is irrelevant to the timeliness of
her claim premised on violations occurring years before her
employment ended.11

11 Unlike Vezaldenos, some PAGA plaintiffs may base their
claims on violations occurring at or through the end of their
employment. Courts addressing those claims may use the end of
employment as shorthand for the most recent time at which a
(Fn. is continued on the next page.)

33
 The federal district court cases on which appellants
rely would not convince us that plaintiffs may use the
relation back doctrine to forego timely notice to the LWDA
even if the cases unequivocally supported such use. They do
not. (See Chavez v. Time Warner Cable LLC (C.D.Cal., Jan.
11, 2016, CV 12-5291-RGK (RZXx)) 2016 U.S. Dist. LEXIS
194546, at *14 [distinguishing but not contradicting Mazzei,
supra, 2013 U.S. Dist. LEXIS 177883, at *15, and its holding
that “because the plaintiff had not complied with pre-filing
notice, she could not rely on the relation-back doctrine to
‘retroactively bestow administrative compliance that did not
exist when the plaintiff filed the initial complaint’”];
Martinez, supra, 2011 U.S. Dist. LEXIS 12198, at *28
[“Because the LWDA notice is a condition precedent to suit,
this notice must be given prior to the running of the statute

cause of action may have accrued. (See, e.g., Slay v. CVS
Caremark Corp. (E.D.Cal., May 4, 2015, No. 1:14-CV-01416-TLN-
GSA) 2015 U.S. Dist. LEXIS, at *13-*14 [plaintiff had one year
“from the date of his termination” to file PAGA claims, but his
PAGA cause of action for failure to provide his final wage
statement accrued when defendants failed to provide it];
Martinez v. Antique & Salvage Liquidators, Inc. (N.D.Cal., Feb.
8, 2011, No. C09-00997-HRL) 2011 U.S. Dist. LEXIS 12198, at
*27 (Martinez) [measuring one-year limitations period from the
date the plaintiffs were terminated, describing it as the date “the
violations occurred”].) However, we are aware of no authority --
and appellants cite none -- holding that a PAGA cause of action
accrues because of the end of employment.

34
of limitations”].)12 Moreover, these nonbinding cases could
not have convinced us that plaintiffs may use the relation
back doctrine to litigate untimely PAGA claims without
giving notice to the LWDA within the limitations period. As
we and the trial court have explained, that use of the
doctrine would frustrate the LWDA’s interests in a manner
contrary to legislative intent.

12 In several of the federal cases on which appellants rely, the
plaintiffs -- unlike appellants -- provided notice to the LWDA
within the limitations period. (See Donnelly v. Sky Chefs, Inc.
(N.D.Cal., Oct. 25, 2016, Case No. 16-CV-03403-JD) 2016 U.S.
Dist. LEXIS, at *3-*4 [plaintiff provided notice to the LWDA
before filing her earlier complaint and merely failed to wait for
the LWDA’s response or lack thereof]; Perryment v. Sky Chefs,
Inc. (N.D.Cal., Sept. 30, 2016, Case No. 16-CV-04015-KAW) 2016
U.S. Dist. LEXIS 136155, at *6 [same]; Martinez, supra, 2011 U.
S. Dist. LEXIS 12198, at *25 [plaintiffs provided notice to the
LWDA after filing their original complaint but within the
limitations period].) The opinion in Waisbein v. UBS Financial
Services Inc. does not state whether or when the plaintiff
provided the LWDA notice. (See Waisbein v. UBS Financial
Services Inc. (N.D.Cal., Mar. 19, 2008, No. C-07-2328 MMC) 2008
U.S. Dist. LEXIS, at *1.) In Ramirez v. Ghilotti Bros. Inc., the
plaintiffs submitted two LWDA notices concerning different
Labor Code violations, first concurrently with the original
complaint and then five months later. (Ramirez v. Ghilotti Bros.
Inc. (N.D.Cal. 2013) 941 F.Supp.2d 1197, 1209.) The defendant
did not dispute that the plaintiffs’ untimely PAGA claims could
relate back to the date of the second notice, implying that it, too,
was provided before the limitations period had expired. (Ramirez
v. Ghilotti Bros. Inc., supra, at p. 1210.)

35
 Appellants argue the trial court effectively “reversed”
the application of the relation back doctrine because of
appellants’ strategy of narrowing their claim to violations
occurring before June 17, 2007. But they cite no authority
suggesting the relation back doctrine can cure the
untimeliness of their claim with respect to those violations
simply because they previously alleged other violations.
In sum, the trial court properly found Vezaldenos’s
PAGA claim was untimely and that the relation back
doctrine did not apply. Accordingly, it did not err in striking
the claim. In light of our ruling, we need not address
Safeway’s alternative argument that the order should be
affirmed because appellants’ amendment adding their PAGA
claim was untimely under Labor Code section 2699.3,
subdivision (a)(2)(C).

36
 DISPOSITION
The judgment is affirmed. Respondents are awarded
their costs on appeal.
CERTIFIED FOR PUBLICATION

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

37