Filed 12/21/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
MIGUEL ANGEL ROJAS-CIFUENTES, C085463
Petitioner, (Super. Ct. No.
STKCVUOE20150007793)
v.
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
AMERICAN MODULAR SYSTEMS, INC.,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Petition granted. F. Clark Sueyres, Jr.,
Judge.
Mallison & Martinez, Marco A. Palau, Hilary Hammell, Eric S. Trabucco for
Petitioner.
No appearance for Respondent.
Boutin Jones Inc., Bruce M. Timm, Kimberly A. Lucia, Andrew M. Ducart for
Real Party in Interest.
1
Miguel Angel Rojas-Cifuentes (Rojas) brought this representative action against
his former employer, American Modular Systems, Inc. (American Modular or AMS), on
behalf of himself, other former and current employees of American Modular, and the
State of California. Relevant here, relying on the Labor Code Private Attorneys General
Act of 2004 (PAGA; Lab. Code, § 2698 et seq.), 1 Rojas seeks to recover civil penalties
for labor violations that American Modular allegedly committed against its nonexempt
employees.
The trial court, however, rejected Rojas’s PAGA claim following American
Modular’s motion for summary adjudication. As the court noted, those seeking to bring
PAGA causes of action must, before filing suit, provide notice to a certain state agency of
the laws the employer allegedly violated and the “facts and theories” supporting those
allegations. But, the court found, Rojas failed to satisfy this threshold requirement. In
particular, although the court found Rojas provided written notice to the state before he
filed suit, it found his notice failed to include sufficient facts and theories to support his
claims. It thus rejected his PAGA cause of action for failure to exhaust administrative
remedies.
After Rojas filed a petition for writ of mandate seeking to set aside the court’s
decision, we directed American Modular to show cause why the writ should not be
issued. Because, unlike the trial court, we find Rojas’s PAGA notice supplied sufficient
facts and theories to support at least some of his claims, we now issue a writ of mandate
directing the trial court to set aside its order granting American Modular’s motion for
summary adjudication.
1 Further undesignated statutory references are to the Labor Code.
2
BACKGROUND
Rojas was a former employee of American Modular who was terminated in
August of 2014. Shortly after, he sought to bring a representative action against
American Modular under PAGA—a law that authorizes employees who have been the
subject of certain Labor Code violations to file representative actions on behalf of
themselves and other aggrieved employees. (§ 2699.)
Before bringing a PAGA action, however, Rojas first needed to provide notice to
American Modular and the Labor and Workforce Development Agency “of the specific
provisions of [the Labor Code] alleged to have been violated, including the facts and
theories to support the alleged violation.” (§ 2699.3, subds. (a)(1)(A), (c)(1)(A).) To that
end, Rojas sent a letter in August of 2015 to American Modular and the Labor and
Workforce Development Agency in which he alleged that American Modular
“systematic[ally] fail[ed] to pay current and former California non-exempt employees of
AMS in conformance with [certain California laws].” He alleged that the “core” of these
violations concerned “the systematic failure to keep accurate time and payroll records,
and systematic failure to compensate employees for substantial portions of their
workday.” He then detailed eight specific labor laws that American Modular allegedly
violated through this conduct. For example, he asserted that American Modular violated
“minimum and overtime wage[] [laws] by failing to compensate for all hours worked”
because it “requir[ed] or knowingly permitt[ed] employees to work before and after the
shift without compensation, unlawfully round[ed] employee time to the detriment of the
employee, [failed to compensate for time spent] donning and doffing, automatically
deduct[ed] 30 minutes for meal periods not taken or meal periods that last less than 30
minutes, and manipulat[ed] time to avoid overtime compensation and compensation for
all hours worked.” At the close of his letter, Rojas noted that he intended to file a civil
action against American Modular under PAGA unless the Labor and Workforce
Development Agency brought its own action.
3
Shortly after sending the letter, Rojas filed a complaint against American Modular
that included a PAGA claim, several non-PAGA class action claims, and an individual
claim. Rojas’s PAGA claim was premised on the eight violations that he alleged in his
letter to the Labor and Workforce Development Agency.
A year later, American Modular filed a motion for summary adjudication,
contending that Rojas’s PAGA cause of action failed as a matter of law. It reasoned that
“summary adjudication in favor of AMS on [Rojas’s PAGA] Cause of Action is proper
because the Court lacks jurisdiction over [Rojas’s] PAGA claim due to [Rojas’s] failure
to satisfy PAGA’s administrative exhaustion requirement.” In particular, American
Modular contended, Rojas’s PAGA notice fell short of satisfying administrative
exhaustion requirements because it failed to allege any “facts and theories” supporting
Rojas’s claims.
The trial court agreed, finding that Rojas failed to allege sufficient “facts and
theories” in his PAGA notice for three reasons. First, it found five of the eight
paragraphs in Rojas’s PAGA notice that detailed American Modular’s alleged violations
“[we]re merely statements of the statute or statements which ‘mimic’ the statute.”
Second, it found Rojas was too “non-specific as to who was harmed by the alleged
violations.” And third, it noted that Rojas’s notice “contain[ed] no allegations as to [his]
status[,] failing to even identify [Rojas] as a current or former employee.” For these
reasons, the court concluded that Rojas “failed to exhaust his administrative remedies by
failing to provide the employer with sufficient notice.” It thus granted American
Modular’s motion. It also granted Rojas leave to amend his complaint.
After Rojas sought writ review of the court’s decision, we directed American
Modular to show cause why the writ should not be issued. 2
2 Both parties ask that we take judicial notice of documents filed after the trial
court’s decision. American Modular asks that we take judicial notice of Rojas’s second
4
DISCUSSION
“The Legislature enacted PAGA to remedy systemic underenforcement of many
worker protections. This underenforcement was a product of two related problems. First,
many Labor Code provisions contained only criminal sanctions, and district attorneys
often had higher priorities. Second, even when civil sanctions were attached, the
government agencies with existing authority to ensure compliance often lacked adequate
staffing and resources to police labor practices throughout an economy the size of
California’s.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545 (Williams).) The
Legislature’s solution to these two problems was to “adopt[] a schedule of civil penalties
‘ “significant enough to deter violations” ’ for those provisions that lacked existing
noncriminal sanctions,” and to “deputiz[e] 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.)
Our focus in this case is on PAGA’s administrative exhaustion requirements for
these “deputize[d] employees.” Before filing a PAGA suit, “an aggrieved employee
acting on behalf of the state and other current or former employees must provide notice to
the employer and the [Labor and Workforce Development Agency] ‘of the specific
provisions of [the Labor Code] alleged to have been violated, including the facts and
theories to support the alleged violation.’ (Lab. Code, § 2699.3, subd. (a)(1)(A); see id.,
subd. (c)(1)(A) [same].)” (Williams, supra, 3 Cal.5th at p. 545.) We consider here
whether the notice Rojas provided to comply with this requirement was so deficient of
“facts and theories” that it could not support any part of his PAGA cause of action.
Unlike the trial court, we find it was not.
amended complaint, and Rojas asks that we take judicial notice of American Modular’s
demurrer to that complaint. We grant both requests. (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
5
To explain why, we consider first several recent cases discussing the amount of
“facts and theories” required in a PAGA notice. We start with the California Supreme
Court’s decision in Williams, a case that “concern[ed] the appropriate scope of discovery
in a PAGA action.” (Williams, supra, 3 Cal.5th at p. 540.) As the court explained there,
“[t]he 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.”
(Id. at pp. 545-546.) But as the court demonstrated, a PAGA notice need not be
exhaustive to serve that purpose. The defendant in that case, taking a contrary view,
interpreted PAGA’s notice requirement—and in particular, the requirement to allege
“facts and theories”—“as imposing a requirement that an aggrieved employee seeking to
pursue civil penalties on behalf of other current or former employees must have some
modicum of substantial proof before proceeding with [a civil suit and] discovery.” (Id. at
p. 545.) But the Williams court rejected that reading. “Nothing in Labor Code section
2699.3, subdivision (a)(1)(A),” the court found, “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.)” (Id. at p. 545.) “Moreover,” the court
added, “to insert such a requirement into PAGA would undercut the clear legislative
purposes the act was designed to serve.” (Id. at p. 546.) The Legislature, the court
explained, “sought to remediate present violations and deter future ones.” (Ibid.) And
“[t]hese purposes,” the court concluded, “would be ill served by presuming,
notwithstanding the failure explicitly to so indicate in the text, that deputized aggrieved
employees must satisfy a PAGA-specific heightened proof standard at the threshold,
before discovery.” (Ibid.)
6
Following the Williams court’s admonition that the “facts and theories” alleged in
a PAGA notice need not “satisfy a particular threshold of weightiness,” courts have since
found few “facts and theories” are needed to satisfy PAGA’s notice requirement. In
Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, for example, the court found
adequate a PAGA notice that alleged an employer provided inaccurate wage statements
because it “ ‘fail[ed] to include the name and address of the legal entity that is the
employer.’ ” (Id. at p. 838.) “This minimal fact,” the court concluded, “support[ed] the
alleged violation, making the [plaintiff’s] Notice adequate.” (Ibid.) And in Brown v.
Cinemark USA, Inc. (9th Cir. 2017) 705 Fed. Appx. 644, 645 (Cinemark), similarly, the
Ninth Circuit found adequate a PAGA notice that alleged an employer provided
inaccurate wage statements because it “fail[ed] to state the total hours . . . worked as a
result of working off-the-clock” and failed to “record[] or pay[] for those hours.” (Amey
v. Cinemark USA Inc. (N.D.Cal. May 13, 2015, No. 13-cv-05669-WHO) 2015
U.S.Dist.LEXIS 63524, at *41 [quoting substance of the PAGA notice], revd. &
remanded sub nom. Cinemark, supra, 705 Fed. Appx. 644.) Considering Williams, the
Ninth Circuit found these “pleaded facts and theories [were] sufficient to put [the
plaintiffs’ employer] and the California Labor and Workforce Development Agency on
notice for potential investigation, which satisfies the policy goal of California Labor
Code § 2699.3(a).” (Cinemark, at p. 645.)
With that background in mind, we now turn to American Modular’s motion for
summary adjudication. American Modular contended in its motion that Rojas’s “PAGA
letter amounts to ‘nothing more than a string of legal conclusions with no factual
allegations or theories of liability to support them.’ ” After we directed American
Modular to show cause why Rojas’s requested relief should not be granted, American
Modular modified its position somewhat. It now accepts that Rojas offered some facts
and theories to support his allegations but, for several reasons, maintains these facts and
theories are insufficient. Agreeing with Rojas, however, we find none of American
7
Modular’s offered reasons warrant summary adjudication of the entirety of Rojas’s
PAGA claim. In our view, as discussed more below, Rojas’s PAGA notice supplied
sufficient “facts and theories” to support at least some of the violations he alleged. And
because a motion seeking summary adjudication of an entire cause of action may not be
granted unless “it completely disposes of [the] cause of action” (Code Civ. Proc., § 437c,
subd. (f)(1)), we find that reason enough to rule in Rojas’s favor.
Before turning to the merits, we briefly address American Modular’s effort to have
Rojas’s petition “denied without the need to even reach its merits.” Because the trial
court granted Rojas leave to amend his complaint, American Modular contends Rojas
“has a plain, speedy, and adequate alternative remedy” that should foreclose the
availability of writ relief. But Rojas’s ability to file an amended complaint is no remedy
at all. The trial court found Rojas’s PAGA cause of action failed because his PAGA
notice, not his complaint, was deficient. And no change Rojas may make to his
complaint can ever remedy this believed flaw in his PAGA notice.
Turning to the merits, American Modular begins with several arguments tracking
the trial court’s reasoning. First, following the trial court’s logic, it asserts that five of
Rojas’s eight paragraphs detailing American Modular’s alleged violations “provide[d]
only a statement mimicking the relevant statutory language.” But even supposing an
employee’s PAGA notice falls short when it couches alleged violations in the language of
the relevant statute, that principle would offer American Modular little help here. At
least some of the five referenced paragraphs supplied much more than American Modular
supposes. One of those paragraphs, for example, stated the following: American
Modular violated “wage statement requirements by providing workers with wage
statements that are inaccurate as to hours worked, total net and gross wages earned and
applicable hourly or piece rates. The inaccuracies stem from the failure to pay for all
hours worked, within the meaning of the wage orders, and failing to pay rest and meal
period premiums.” Rojas then described elsewhere in his notice the cause of American
8
Modular’s alleged failure to pay for all hours worked and rest and meal periods missed:
American Modular “requir[ed] or knowingly permitt[ed] employees to work before and
after the shift without compensation, unlawfully round[ed] employee time to the
detriment of the employee, [failed to compensate for time spent] donning and doffing,
automatically deduct[ed] 30 minutes for meal periods not taken or meal periods that last
less than 30 minutes, and manipulat[ed] time to avoid overtime compensation and
compensation for all hours worked.”
Rojas’s allegations here thus included an ultimate fact (American Modular
provided workers with wage statements that inaccurately listed hours worked, wages
earned, and applicable hourly or piece rates) and supportive evidentiary facts (American
Modular’s inaccurate wage statements resulted from American Modular’s failure to pay
workers for all hours worked and rest and meal periods missed—and this failure to pay,
in turn, resulted from American Modular’s failure to compensate for, among other things,
time spent “donning and doffing”). American Modular’s contention, then, that this and
several other paragraphs “provide[d] only a statement mimicking the relevant statutory
language” is wrong. To be sure, Rojas’s alleged “facts and theories” here did not
exhaustively explain why American Modular’s wage statements were inadequate. But
his allegations sufficed to notify American Modular and the Labor and Workforce
Development Agency of the general basis for this claim. And considering Williams and
later cases, these allegations were at least enough to supply the minimum “facts and
theories” necessary to support that claim. (See Williams, supra, 3 Cal.5th at p. 545
[“facts and theories” alleged in a PAGA notice need not “satisfy a particular threshold of
weightiness”]; Brown v. Ralphs Grocery Co., supra, 28 Cal.App.5th at p. 838 [finding
adequate a PAGA notice that alleged an employer provided inaccurate wage statements
because it “ ‘fail[ed] to include the name and address of the legal entity that is the
employer’ ”]; Cinemark, supra, 705 Fed. Appx. at p. 645.)
9
Next, again adopting the trial court’s reasoning, American Modular contends
Rojas’s notice “was deficient because it failed to adequately identify who the alleged
‘aggrieved employees’ were with regard to the alleged violations.” Rojas, however, did
specify the particular class of workers who he believed were harmed— “current and
former California non-exempt employees of AMS.” That is a broad class of employees,
to be sure; but it is a specific class of employees. And it appears to be the same class of
employees discussed in the PAGA notice in Williams. The complaint in that case, after
all, concerned a similarly broad class of employees—namely, all nonexempt hourly
employees who suffered the same alleged harms as the plaintiff. (Williams, supra, 3
Cal.5th at pp. 542-543.)
Similarly, once more following the trial court’s reasoning, American Modular
contends Rojas’s notice “was deficient because it failed to . . . provide a statement
regarding [Rojas’s] own position and status.” Rojas’s notice perhaps could have been
more detailed in this regard. He identified himself as an “aggrieved employee”—which,
in PAGA parlance, means he “was employed [at some point] by the alleged violator”
(Lab. Code, § 2699, subd. (c))—and he indicated he was a nonexempt California
employee. But he offered little else about his status, never revealing his particular
position with American Modular or his period of employment.
Even so, we find the alleged facts in his notice sufficient. Considering the whole
of Rojas’s allegations, it is at least clear that Rojas asserted that American Modular is
currently committing the listed violations against its nonexempt employees. And
although the state agency reviewing this notice might be left to wonder when these
violations began, that is not reason enough to find the notice wholly inadequate. A
complaint, as an analogue, is generally not deficient merely because it fails to describe
the particular date when a defendant’s misconduct began. (See People v. Superior Court
(1973) 9 Cal.3d 283, 288 [complaint that accused the defendants of making false and
misleading statements, but without noting “the time and place of the misrepresentations,”
10
was not inadequate for that reason; “[i]f defendants require further specifics in order to
prepare their defense, such matters may be the subject of discovery proceedings”].) And
we see nothing in section 2699.3 suggesting that factual allegations in PAGA notices
must exceed those normally found sufficient in complaints.
Nor do we find anything in PAGA as a whole supporting this proposition. To the
contrary, taking our cues from Williams, we find that requiring some sort of heightened-
pleading standard at the notice stage would “undercut the clear legislative purposes the
act was designed to serve.” (Williams, supra, 3 Cal.5th at p. 546.) PAGA, again, sought
to “expand[] the universe of those who might enforce the law, and the sanctions violators
might be subject to,” to “remediate present violations [of the Labor Code] and deter
future ones.” (Ibid.) And, tweaking the Williams court’s words slightly, we find “[t]hese
purposes would be ill served by presuming, notwithstanding the failure explicitly to so
indicate in the text, that deputized aggrieved employees must satisfy a PAGA-specific
heightened [pleading] standard at the threshold, before discovery.” (Ibid.; see also id. at
p. 548 [“Hurdles that impede the effective prosecution of representative PAGA actions
undermine the Legislature’s objectives.”].) 3
Branching out from the trial court’s reasoning, American Modular also contends
Rojas’s PAGA notice was deficient because it “fail[ed] to identify any specific policy or
practice of AMS that could have allowed AMS and the [Labor and Workforce
Development Agency] to realistically ascertain what allegedly gave rise to the purported
violations.” But Rojas did allege specific practices that he believed unlawful. Again, for
3 Williams, as American Modular notes, is not on all fours with our case. Williams
considered, among other things, whether a PAGA notice requires something more than
mere allegations—say, “some modicum of substantial proof”—to be sufficient.
(Williams, supra, 3 Cal.5th at p. 545.) Here, in contrast, we consider the number of
allegations necessary in a PAGA notice. But although our issues are slightly different,
the reasoning of the Williams court lends clear support to our conclusion, even if it does
not explicitly dictate it.
11
example, he contended American Modular undercompensated him and other nonexempt
employees based on the following practices: American Modular “requir[ed] or
knowingly permitt[ed] employees to work before and after the shift without
compensation, unlawfully round[ed] employee time to the detriment of the employee,
[failed to compensate for time spent] donning and doffing, automatically deduct[ed] 30
minutes for meal periods not taken or meal periods that last less than 30 minutes, and
manipulat[ed] time to avoid overtime compensation and compensation for all hours
worked.”
Finally, because Rojas’s PAGA claim is based on American Modular’s alleged
violation of eight distinct labor laws, American Modular asks that we at least consider
whether it is entitled to summary adjudication relating to some of those eight laws. In
explaining its argument, American Modular acknowledges that summary adjudication
under Code of Civil Procedure section 437c, subdivision (f)(1) is typically only
appropriate when it disposes of an entire cause of action. But it contends Rojas’s PAGA
claim is effectively eight causes of action—one cause of action for each of the eight
distinct labor laws allegedly violated. And so it asks that we at least consider whether
some of these eight parts of Rojas’s PAGA claim are inadequate.
We decline to do so. We agree Rojas’s PAGA claim can be regarded as multiple
causes of action for purposes of summary adjudication. (See Silva v. See’s Candy Shops,
Inc. (2016) 7 Cal.App.5th 235, 257 [each set of allegations in a cause of action that raises
a distinct theory of liability may be regarded as a distinct cause of action for purposes of
summary adjudication].) But we decline to consider whether summary adjudication,
even if not appropriate for all these causes of action together, would at least be
appropriate for some of them. At the trial level, American Modular limited its challenge
to the entirety of Rojas’s PAGA claim. It never sought summary adjudication for each of
the eight parts of Rojas’s PAGA cause of action; it instead treated the PAGA cause of
action as a single claim and sought summary adjudication of the entirety of this claim.
12
As the motion was presented, then, the trial court had to deny it if it found any part of
Rojas’s PAGA cause of action survived. After all, a motion seeking summary
adjudication of an entire cause of action may not be granted unless “it completely
disposes of [the] cause of action.” (Code Civ. Proc., § 437c, subd. (f)(1).) Understanding
American Modular’s motion this way, Rojas never attempted to show his PAGA notice
satisfied administrative exhaustion requirements for each of the eight alleged violations
in his PAGA cause of action. He instead attempted to show his PAGA notice at least
satisfied exhaustion requirements for some of his allegations. And, he contended,
because American Modular could not show his “notice [wa]s deficient as to each and
every PAGA predicate, or that AMS has a complete defense,” that was reason enough to
deny American Modular’s motion.
American Modular now, however, attempts to change the relevant legal question.
No longer should we consider whether Rojas’s PAGA cause of action, considered as a
single unit, could be summarily adjudicated. Instead, American Modular now contends,
we should consider whether any part of Rojas’s PAGA cause of action could be
summarily adjudicated. But that is a very different issue than the one Rojas faced and the
trial court considered below. As American Modular framed the issue below, Rojas
needed to show only that some part of his PAGA cause of action could not be summarily
adjudicated to ensure a ruling in his favor. And, not surprisingly, that was all Rojas
attempted to show in opposing American Modular’s motion. But as American Modular
frames the issue now, for the first time in its brief on appeal, Rojas instead should have
attempted to show that all eight parts of his PAGA cause of action could not be
summarily adjudicated. We decline, however, to consider this new theory for the first
time on appeal. (See Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th
13
982, 997 [“ ‘As a general rule, theories not raised in the trial court cannot be asserted for
the first time on appeal.’ ”].) 4
DISPOSITION
Let a writ of mandate issue directing the trial court to set aside its order granting
real party American Modular’s motion for summary adjudication and to enter a new
order denying that motion. Rojas is entitled to recover his costs in this original
proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
/s/
BLEASE, Acting P.J.
We concur:
/s/
MURRAY, J.
/s/
RENNER, J.
4 Rojas contends we should decline American Modular’s request for an alternative
reason: American Modular failed to follow the proper procedural route for obtaining
summary adjudication on less than the entire cause of action. In Rojas’s view, to obtain
its requested relief, American Modular needed to follow the procedure set out in Code of
Civil Procedure section 437c, subdivision (t)—which describes the procedure for
obtaining “summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action. . . .” But we find
that particular provision irrelevant here. American Modular’s aim here is not to attack
something less than a cause of action. It instead contends Rojas’s PAGA cause of action
is really eight distinct causes of action, and it then seeks summary adjudication of at least
some of those eight causes of action. That said, we still agree with Rojas’s desired result
for the reasons stated.
14