LaFace v. Ralphs Grocery Co.

Filed 2/18/22

CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

JILL LAFACE, B305494

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC632679)
v.

RALPHS GROCERY COMPANY,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County,
Patricia Nieto, Judge. Affirmed.
Knapp, Petersen & Clarke, André E. Jardini, K.L. Myles, Greta T.
Hutton; Capstone Law, Ryan Y. Wu, Melissa Grant, John Stobart; Law
Offices of Michael V. Jehdian and Michael V. Jehdian for Plaintiff and
Appellant.
Morrison & Foerster, Tritia M. Murata, Wendy J. Ray, Karen J. Kubin,
James R. Sigel and Michael F. Qian for Defendant and Respondent.
Fisher & Phillips, Christopher C. Hoffman, Megan E. Walker and
Darcey M. Groden for California New Car Dealers Association as Amicus
Curiae on behalf of Defendant and Respondent.
 Plaintiff Jill La Face appeals from the judgment entered following a
bench trial in her representative action against Ralphs Grocery Company
under the Private Attorneys General Act seeking civil penalties for alleged
violations of labor law workplace seating requirements. We reject her
contention that she was entitled to a jury trial and affirm the trial court’s
finding that Ralphs was not required to provide seating for its cashiers.
FACTS AND PROCEDURAL HISTORY 1
The Private Attorneys General Act (Lab. Code, § 2698, et seq. (PAGA))
allows employees to bring a civil action for penalties against their employer
on behalf of themselves and other current and former “aggrieved” employees
for Labor Code-related violations. 2 (§ 2699, subds. (a),(f).)
Appellant Jill La Face worked as a cashier at a store owned by
respondent Ralphs Grocery Company. She brought a PAGA action against
Ralphs on behalf of herself and other current and former Ralphs cashiers,
alleging that Ralphs violated an Industrial Welfare Commission (IWC) wage
order that required employers to provide suitable seating when the nature of
the work reasonably permitted the use of seats, or, for a job where standing
was required, to provide seating for employee use when their use did not
interfere with an employee’s duties. 3

1 Plaintiff and appellant Jill La Face died while this appeal was
pending and before her appellant’s reply brief could be filed. Appellant’s
counsel filed a reply brief on her behalf, prompting both respondent’s motion
to strike the reply brief and a motion by appellant’s counsel to substitute
another former Ralphs employee as the appellant. (Cal. Rules of Court, rule
8.36.) Rather than determine whether substitution is permissible in this type
of action, we exercise our discretion to consider the reply brief and decide the
appeal on its merits because it presents a continuing issue of public interest.
(Conservatorship of Wendland (2001) 26 Cal.4th 519, 524, fn. 1; People v.
Nottoli (2011) 199 Cal.App.4th 531, 535, fn. 3; Dority v. Superior Court (1983)
145 Cal.App.3d 273, 276.) Accordingly, we deny respondent’s motion to strike
the reply brief and deny without prejudice the motion to substitute in a new
appellant on the ground that it is now moot.
2 All further undesignated section references are to the Labor Code.
3 Only the latter portion of appellant’s PAGA claim is at issue on

appeal.
2
 The trial court set the matter for a jury trial but later granted Ralphs’s
motion for a bench trial after finding that PAGA actions were equitable in
nature and were therefore not triable to a jury. 4 A 12-day bench trial was
held between November and December 2019, where ergonomics experts and
Ralphs employees and supervisors testified for both sides. The trial court
found that Ralphs had not violated the applicable wage order because the
evidence showed that even when lulls occurred in a cashier’s primary duties,
the cashiers were still required to move about the store fulfilling various
other tasks. 5
DISCUSSION
A. The Right to a Jury Trial
1. PAGA
California’s Labor Code includes numerous statutes “designed to
protect the health, safety, and compensation of workers.” (Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 80 (Kim).) Some statutes
allow employees to sue for damages, typically in the form of wage
compensation. (See, e.g., § 1194.) Others allow the Labor Commissioner to
issue citations and bring administrative proceedings to recover lost wages on
behalf of affected employees or to impose regulatory penalties for various
forms of employer misconduct. (See, e.g., § 225.5.) Others vest the right to
assess and recover statutory penalties in the Labor Commissioner only. (See,
e.g., § 226.3.)
The Labor Commissioner’s ability to enforce these provisions was
hampered by several factors. Some code sections were designated as
misdemeanors, as to which no penalties attached. Others included penalty
provisions, but a shortage of government resources hampered enforcement.
(See Kim, supra, 9 Cal.5th at p. 81; Iskanian v. CLS Transportation Los
Angeles, LLC (2014) 59 Cal.4th 348, 379 (Iskanian).) The Legislature enacted

4 Ralphs also contended that appellant had waived her right to a jury
trial by not posting her jury fees on time. (Code Civ. Proc., § 631, subd.
(f)(5).) The trial court did not address this issue when it ordered a bench trial
and, given our holding that there is no jury trial right here, neither will we.
5 We will discuss the law and facts concerning the merits of appellant’s

claim in detail in section B. of our Discussion.
3
PAGA in 2003 to address these issues by adding penalties in specified
amounts for statutes that did not provide for them, with penalties remaining
in the amounts statutorily set for other provisions. (Iskanian, supra, 59
Cal.4th at p. 379; § 2699, subds. (a),(f) & (g).) 6
PAGA provides that, “[n]otwithstanding any other provision of law, any
provision of this code that provides for a civil penalty to be assessed and
collected by the Labor Workforce Development Agency [(LWDA)] or any of its
departments, divisions, commissions, boards, agencies, or employees, for a
violation of this code, may, as an alternative, be recovered through a civil
action brought by an aggrieved employee on behalf of himself or herself and
other current or former employees pursuant to the procedures specified in
Section 2699.3.” (§ 2699, subd. (a).) The same is true of aggrieved employees
seeking PAGA relief based on Labor Code statutes that do not provide for
civil penalties. (§ 2699, subds. (f),(g).)
Penalties recovered in a PAGA action are divided between the state
and all employees on whose behalf the action was maintained, with 75
percent going to the state and the rest divided among the aggrieved
employees. (§ 2699, subd. (i).) Whenever the LWDA or any of its constituent
organizations has discretion to assess a civil penalty, “a court is authorized to
exercise the same discretion, subject to the same limitations and conditions,
to assess a civil penalty.” (§ 2699, subd. (e)(1).) In any PAGA action,
however, whether under a statute that provides for a penalty or one that does
not, “a court may award a lesser amount than the maximum civil penalty
amounts specified by this part if, based on the facts and circumstances of the
particular case, to do otherwise would result in an award that is unjust,
arbitrary and oppressive, or confiscatory.” (§ 2699, subd. (e)(2).)
Section 2699.3 sets forth the procedures to be followed to pursue a
PAGA action. Before commencing a PAGA action, the would-be plaintiff
must give notice to the LWDA, and no action can be brought until the LWDA
either notifies the plaintiff that it does not intend to investigate the claim, or
60 days have passed without such notice being given. Actions based on

6Given that PAGA has been in effect more than 18 years, we are
surprised that it took so long for the jury trial issue to present itself for
appellate review.
4
PAGA code violations not listed in section 2699.5 are also subject to being
cured by the employer against whom the PAGA action is proposed. (§§
2699.3, subds. (a)(c); 2699.5.)
2. Determining the Right to a Jury Trial In Civil Cases
Under California law, the right to a jury trial may be afforded by
statute or pursuant to Article I, section 16 of the California Constitution.
(Nationwide Biweekly Administration, Inc. v. Superior Court of Alameda
County (2020) 9 Cal.5th 279, 296-297 (Nationwide Biweekly).) Although the
Legislature may grant that right where the state constitution does not
require it, the Legislature’s decision to expressly deny that right is trumped
where the constitutional right exists. 7 (Id. at p. 297.)
Article I, section 16 of the California Constitution states that “[t]rial by
jury is an inviolate right and shall be secured to all.…” This provision was
intended to preserve the right to a civil jury trial as it existed at common law
in 1850 when this section became part of the state’s constitution.
(Nationwide Biweekly, supra, 9 Cal.5th at p. 315, citing People v. One 1941
Chevrolet Coupe (1951) 37 Cal.2d 283, 286-287 (One 1941 Chevrolet Coupe).)
That right “‘is a purely historical question, a fact which is to be ascertained
like any other social, political or legal fact. The right is the historical right
enjoyed at the time it was guaranteed by the Constitution.’” (Ibid., citation
and fn. omitted.) Whether a jury trial right exists here under the state

7 Both parties seem to agree that PAGA does not confer a right to jury
trial and that our inquiry is limited to whether the constitutional jury trial
right exists. Ralphs also contends that the Legislature intended PAGA
actions be tried to the courts, pointing to language in the statute that
expressly allocates to the courts the discretion to assess penalties or to reduce
the amount of penalties. We agree with Ralphs that this at least suggests the
Legislature intended that PAGA actions be tried to the courts, not juries.
(Nationwide Biweekly, supra, 9 Cal.5th at p. 299.) Either way, however, our
inquiry turns solely on whether the constitutional right to a jury trial exists.
(Id. at p. 297; Shaw v. Superior Court (2017) 2 Cal.5th 983, 994 [where
language and legislative history of a statute do not indicate whether the
Legislature intended to create a jury trial right or not, the existence of a jury
trial right is determined under the state constitution].)
5
constitution is an issue of law subject to de novo review. (Jogani v. Superior
Court (2008) 165 Cal.App.4th 901, 904.)
As a general matter, therefore, the California Constitution affords a
right to a jury trial in common law actions at law that were triable by a jury
in 1850, but not to suits in equity that were not triable by a jury at that time.
(C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8-9.)
Under this test, it is the substance of a cause action – not its title or form –
that is controlling. (Nationwide Biweekly, supra, 9 Cal.5th at p. 315.) In
making this evaluation we look to the gist of the action: whether the nature
of the rights involved and the facts of the particular case show that it is legal
and therefore cognizable at law. (Ibid.)
At early common law, actions at law typically involved lawsuits to
recover money damages for injuries caused by breach of contract or tortious
conduct. Equitable causes of action typically sought relief such as
injunctions, orders for specific performance, or the disgorgement of ill-gotten
gains, which were unavailable in actions at law. (Nationwide Biweekly,
supra, 9 Cal.5th at pp. 292-293.) 8
A leading case in this area is One 1941 Chevrolet Coupe, supra, 37
Cal.2d 283. At issue there was whether a lawsuit by the government seeking
forfeiture of a car allegedly used to transport drugs required a trial by jury.
The court held that a jury trial was required because, at common law, similar
causes of action for the forfeiture of lawful property used for unlawful
purposes were triable to a jury. (Id. at pp. 297-300.) Nor did it matter that
the statute at issue was enacted after 1850. Because the constitutional right
to a jury trial is broadly construed, it applies to newer causes of action that
are of like nature or of the same class as a pre-1850 common law cause of
action. (Id. at p. 300; Franchise Tax Board v. Superior Court (2011) 51

8 “The abolishment of the distinction between forms of proceedings in
actions at law and suits in equity was made by the adoption of the Civil
Practice Act of California in 1850. This reform being adopted practically at
the same time as the formation of the state government, the distinctions
between procedure in law and equity have been practically unknown to
California law.” (Parma, The History of the Adoption of the Codes of
California, (1929) 22 Law Libr. J. 8, 12.)
6
Cal.4th 1006, 1012 (Franchise Tax Board) [courts examine claims arising
under a modern statute to see if they are of “like nature” or “of the same class
as a common law right of action”].)
3. The Parties’ Contentions
Appellant contends that there is a right to a jury trial in PAGA actions
because: (1) they are actions for civil penalties, which historically have been
deemed actions at law that were tried to juries; (2) the factual inquiries in
PAGA actions are typically straightforward and mechanical and therefore do
not pose complex and sophisticated issues best suited to resolution by the
courts; (3) PAGA actions are qui tam actions, which traditionally are tried by
juries; and (4) they arise out of the employment relationship and are
therefore akin to common law causes of action for breach of contract.
Respondent contends that there is no right to a jury trial in a PAGA
action because: (1) PAGA is a modern statutory innovation unknown at
common law; (2) PAGA plaintiffs act as proxies for the state, enforcing
statutory regulations that the state adjudicates through administrative
proceedings that are reviewable in court actions without juries; (3) although
penalties are the sole remedy in PAGA actions, that remedy is subject to
equitable considerations at the court’s discretion, making the remedy less
legal and more equitable; (4) qui tam actions do not always require jury
trials; and (5) because PAGA claims are essentially disputes between the
state and employers, they are not contractual in nature.
4. PAGA Actions Are Substitutes for Administrative Proceedings
“A PAGA claim is legally and conceptually different from an employee’s
own suit for damages and statutory penalties. An employee suing under
PAGA ‘does so as the proxy or agent of the state’s labor law enforcement
agencies.’ Every PAGA claim is ‘a dispute between an employer and the
state.’ Moreover, the civil penalties a PAGA plaintiff may recover on the
state’s behalf are distinct from the statutory damages or penalties that may
be available to employees suing for individual violations. Relief under PAGA
is designed primarily to benefit the general public, not the party bringing the
action.” (Kim, supra, 9 Cal.5th at p. 81, citations omitted, emphasis in
original.) A PAGA action is therefore a type of qui tam action, except that a
portion of the penalty recovered goes to all employees affected by the Labor

7
Code violation. The state agency on whose behalf the suit is prosecuted
always remains the real party in interest. (Ibid.)
In Iskanian, supra, 59 Cal.4th 348, our Supreme Court explained in
detail why PAGA actions were exempt from arbitration under the Federal
Arbitration Act (FAA). Because PAGA plaintiffs act as proxies for the state’s
labor law enforcement agencies, they represent “the same legal right and
interest” as those agencies: the “recovery of civil penalties that otherwise
would have been assessed and collected by the [LWDA].” (Id. at p. 380, italics
added.) PAGA “authorizes a representative action only for the purpose of
seeking statutory penalties for Labor Code violations and “an action to
recover civil penalties ‘is fundamentally a law enforcement action designed to
protect the public and not to benefit private parties.’” (Id. at p. 381, citation
omitted, italics added.) The civil penalties recoverable under PAGA are
distinct from the statutory damages that employees may seek in their
individual capacities. (Ibid.) A PAGA action “‘functions as a substitute for
an action brought by the government itself.’” (Id. at p. 387, citation omitted.)
“Simply put, a PAGA claim lies outside the FAA’s coverage because it is
not a dispute between an employer and an employee arising out of their
contractual relationship. It is a dispute between an employer and the state. .
. .” (Iskanian, supra, 59 Cal.4th at p. 386, original italics.) 9 Even though
only aggrieved employees may bring PAGA actions, the character of the
litigant or the dispute remain unchanged: PAGA actions are representative
actions on behalf of the state. (Id. at p. 387; Amaral v. Cintas Corp. No. 2
(2008) 163 Cal.App.4th 1157, 1197 [PAGA does no more than allow private
parties “to recover penalties that previously could have been recovered only
by the state Labor Commissioner.”)
Synthesizing these decisions, a PAGA action is an administrative
enforcement action conducted in court on behalf of the state by an aggrieved
employee who possesses “the same legal right and interest” as the state. (See
Iskanian, supra, 59 Cal.4th at 380.) However, that legal right and interest

9 Based on this, we reject appellant’s contention that there is a right to
a jury trial in PAGA actions because they are analogs of common law breach
of contract actions.
8
does not include the right to a jury trial. (McHugh v. Santa Monica Rent
Control Board (1989) 49 Cal.3d 348 (McHugh).) 10
The Labor Code includes penalty provisions that are reviewed by way
of administrative mandate or by a trial de novo following an informal hearing
process that may be requested after the issuance of an administrative
citation. (§§ 98-98.2 [Labor Commissioner is authorized to investigate
employee complaints, issue citations awarding unpaid wages or penalties,
and hold informal hearings that are reviewed by a trial de novo in superior
court]; §§ 226-226.5 [authorizing review by administrative mandate after
informal hearing for citation issued due to failure to properly itemize wages
and deductions on pay stub]; §§ 558, 1197.1 [citations imposing penalties for
violations of IWC orders follow the citation and informal hearing process,
with review by administrative mandate].)
Both review processes – administrative mandate and trial de novo –
occur without a jury. (Code Civ. Proc., §1094.5, subd. (a) [administrative
mandate is heard by the court sitting without a jury]; Smith v. Rae-Venter
Law Group (2002) 29 Cal.4th 345, 367-368 italics added [at trial de novo
following administrative hearing under section 98.2, the court “hears the
evidence anew” and “reach[es] its decision based on that new evidence . . . ”].)
As the decisions cited above make clear, PAGA plaintiffs stand in the
shoes of the administrative agency and possess the same right and interest as
it does. The nature of that right is administrative regulatory enforcement,

10 The Mc Hugh court affirmed the right of a city’s rent control board to
adjudicate a tenant’s claim against his landlord for excessive rent charges,
rejecting the landlord’s claim that he was entitled to a jury trial instead. The
court first noted that the gist of the action test was not applicable to
adjudication of a dispute between private parties in an administrative forum.
(McHugh, supra, 49 Cal.3d at p. 380; accord Franchise Tax Board, supra, 51
Cal.4th at p. 1011.) Administrative agencies may hold hearings to adjudicate
issues that fall within the scope of their primary and legitimate regulatory
purposes so long as they are authorized to do so by statute. Such actions do
not contravene the state constitution’s judicial powers doctrine so long as
those decisions are subject to judicial review by the courts. (McHugh, supra,
at pp. 359, 372; Cal. Const., art. VI, § 1.)

9
which occurs in administrative proceedings and which is subject to judicial
review without a jury trial right.
5. PAGA Penalty Awards Are Subject To The Application of Several
Equitable Factors
PAGA permits the courts to award less than the maximum penalty
authorized “if, based on the facts and circumstances of the particular case, to
do otherwise would result in an award that is unjust, arbitrary and
oppressive, or confiscatory.” (§ 2699, subd. (e)(2).) Ralphs contends,
appellant concedes, and we agree, that these factors are equitable in nature.
Other courts considering the effect of similar penalty provisions have found
them to be factors that weigh against the existence of a jury trial right.
The court in DiPirro v. Bondo Corporation (2007) 153 Cal.App.4th 150
(DiPirro) considered whether there was a right to jury trial in an action
brought under the Safe Drinking Water and Toxic Enforcement Act of 1986.
(Health & Saf. Code, §§ 25249.5-25249.13 (Proposition 65).) Like PAGA,
Proposition 65 allows for enforcement by the state or by private plaintiffs on
the state’s behalf. (DiPirro, supra, 153 Cal.App.4th at pp. 183-184; Health &
Saf. Code, § 25249.7, subd. (c).)
Proposition 65 provides for equitable remedies in the form of injunctive
and declaratory relief. It also provides for civil penalties, subject to an array
of factors. These include: the nature and extent of the violation; the number
and severity of the violations; the economic effect on the violator; whether
the violator made good faith efforts to comply with the law; the willfulness of
the violator’s misconduct; and any other factor justice requires. (Health &
Saf. Code, § 25249.7, subd. (b)(1).) (DiPirro, supra, 153 Cal.App.4th at pp.
181-183.)
The legal remedy of damages sought under Proposition 65 by way of
civil penalties is subject to equitable principles through consideration of the
several factors listed in the statute. (DiPirro, supra, 153 Cal.App.4th at p.
182.) This highly discretionary consideration of multiple factors “that do not
primarily take into account any harm suffered by the plaintiff . . . [is] the
kind of calculation traditionally performed by judges rather than a jury . . . .”
(Id. at p. 182.) The combination of equitable remedies and equitable

10
penalties rendered Proposition 65 actions equitable, not legal, thereby
precluding the right to a jury trial. (Id. at pp. 182-184.)
The court in Nationwide Biweekly, supra, 9 Cal.5th 279, relied in part
on this analysis when holding that actions under the Unfair Competition Law
(Bus. & Prof. Code, § 17200, et seq. (UCL)) and the False Advertising Law
(Bus. & Prof. Code, § 17500, et seq. (FAL)) were equitable and therefore not
triable to a jury.
At common law, consumers had no claim for unfair competition, and
trademark or trade name infringement actions could be brought only by
businesses adversely affected by such conduct. (Nationwide Biweekly, supra,
9 Cal.5th at p. 322.) The UCL and FAL were enacted to create new rights
and remedies not available at common law, broadening the types of business
practices that could be considered unfair competition. They also authorized
both the government and injured private individuals to sue for restitution,
injunctive relief, and other equitable remedies. (Id. at pp. 322-323.) Both
also included penalty provisions subject to identical equitable considerations:
the nature, seriousness, and persistence of the misconduct; its duration;
defendant’s willfullness; and defendant’s net worth. (Bus. & Prof. Code, §§
17207, subd. (b); 17536, subd. (b).)
The Nationwide Biweekly court was aware of One 1941 Chevrolet
Coupe’s description of early English common law penalty actions where jury
trials were allowed, but did not believe that made UCL or FAL actions any
less equitable. “Prior to 1850, early English law embodied numerous statutes
imposing civil penalties for a variety of specifically delineated impermissible
business practices – like using false weights and measures in the sale of a
product or failing to pay the appropriate excise taxes due – that were
enforced by the government through a civil action” where a jury was
available. (Nationwide Biweekly, supra, 9 Cal.5th at p. 323, quoting One
1941 Chevrolet Coupe, supra, 37 Cal.2d at pp. 295-296 & fn. 15.) However,
none of these statutes reached the types of novel but offensive business
practices created by the UCL and FAL. (Ibid.) Based on this, along with the
equitable remedies authorized by the UCL and FAL, and the equitable
factors used to determine the amount of penalties awarded, the court held

11
that the state constitutional right to a jury trial did not attach to those
statutory schemes. (Id. at pp. 324-327.)
6. There Is No Jury Trial Right in PAGA Actions
We acknowledge that the nature of the remedy sought is an important,
but not controlling, factor in determining whether an action is at law or in
equity. (Raedeke v. Gibraltar Savings & Loan Assn., supra, 10 Cal.3d at p.
672.) 11 We also acknowledge that actions for penalties have traditionally
been considered actions at law that are triable to a jury. However, the
general proposition that actions at law are triable to juries is “not an absolute
rule.” (Franchise Tax Board, supra, 51 Cal.4th at p. 1011, 1012-1019
[although statutory tax refund actions were legal in nature, they came with
no jury trial right because the authorizing statute created a new kind of
action unknown at common law].) 12
We understand appellant’s contention that PAGA is just another action
for a civil penalty and therefore an action at law triable by a jury. But as set
forth earlier, PAGA is not a garden variety civil penalty action. Instead, it

11 The most often cited source for this proposition is One 1941 Chevrolet
Coupe, supra, 37 Cal.2d 283. As part of its general discussion about the types
of actions that were considered to be at law before 1850, the court quoted at
length from various legal authorities, including the following: “‘Cases
involving penalties to the Crown, other than forfeiture or conveyances and
goods, were also tried by a jury in the court of Exchequer.’” (Id. at p. 295.)
Included as a footnote was a list of citations to several late 17th and early
18th century English decisions where penalties were sought during a jury
trial. These consisted primarily of actions for recusancy – failure to attend
church – and customs and duties violations. (One 1941 Chevrolet Coupe,
supra, at p. 295, fn. 15.)
12 The Franchise Tax Board court cited several other similar examples.

Small claims actions are not entitled to jury trials even though they are
typically legal, not equitable, because pre-1850 English law allowed for such
cases to be tried without a jury. (Franchise Tax Board, supra, 51 Cal.4th at
p. 1011.) Neither were statutory tax collection proceedings even though their
authorizing statute denominated them as actions at law. (Id. at p. 1012,
citing Sonleitner v. Superior Court (1958) 158 Cal.App.2d 258, 261-262.)
Finally, citing McHugh, supra, 49 Cal.3d 348, the court reaffirmed that the
gist of the action test did not apply in administrative proceedings. (Franchise
Tax Board, supra, at p. 1011.)
12
contains several unique features that we conclude make it unlike any pre-
1850 common law action and therefore unsuitable for a trial by jury.
First, as discussed above, PAGA is a civil action only in the sense that
its designated forum is the trial courts. PAGA plaintiffs are still mere
proxies for the state, bringing what would otherwise be an administrative
regulatory enforcement action on its behalf. The action is still subject to the
same legal rights and interests as the state (Iskanian, supra, 59 Cal.4th at p.
380), and that right does not include the right to a jury trial. (McHugh,
supra, 49 Cal.3d at p. 348.) Moreover, judicial review of such proceedings
occurs without a jury. (Code Civ. Proc., § 1094.5, subd. (a); Smith v. Rae-
Venter Law Group, supra, 29 Cal.4th at pp. 367-368.) It seems anomalous to
vest the state’s proxies with more rights than the state would otherwise have
on its own.
The administrative nature of PAGA actions is further underscored by
two factors: First, it applies in part to Labor Code provisions that allow for a
civil penalty to be “assessed and collected” by the LWDA. (§ 2699, subd. (a).)
We take that to mean purely administrative enforcement. (See §200.5, subds.
(a),(b) [labor agencies commence court actions to collect civil penalty
assessments and fees].) Second, where the LWDA has discretion to assess a
civil penalty, the courts are to exercise the same discretion, subject to the
same limitations and conditions as the LWDA. (§ 2699, subd. (e)(1).) In
short, for many PAGA actions the statue directs the courts to exercise the
same discretion as would the Labor Commissioner, a task for which a jury
seems unsuited.
Next, PAGA’s penalty provisions are subject to a variety of equitable
factors which, as both the Nationwide Biweekly and DiPirro courts pointed
out, call for “the type of qualitative evaluation and weighing of a variety of
factors that is typically undertaken by a court and not a jury.” (Nationwide
Biweekly, supra, 9 Cal.5th at p. 326; DiPirro, supra, 153 Cal.App.4th at p.
182.) This reasoning was also applied in Mendoza v. Ruesga (2009) 169
Cal.App.4th 270, which considered whether actions under the Immigration
Consultants Act (Bus. & Prof. Code, § 22440, et seq. (ICA)) carried the right
to trial by jury. The ICA permits the recovery of compensatory damages for
misleading statements (Bus. & Prof. Code, § 22446.5, subd. (a)), which the

13
court held was comparable to a common law fraud cause of action and was
therefore triable to a jury. (Id. at pp. 284-286.) However, the ICA also allows
for the collection of civil penalties that are subject to a variety of equitable
considerations (Bus. & Prof. Code, § 22445, subd. (a)(2)), and, as to those
there was no such right. (Id. at p 285. fn. 9.)
We recognize that the penalties at issue in Nationwide Biweekly and
DiPirro were found in statutes that also provided equitable remedies such as
injunctive and declaratory relief, and that the equitable nature of the
penalties formed only part of the court’s analysis. Although not dispositive,
we conclude that the equitable nature of the penalties permitted by PAGA is
a factor – along with others – that we must consider.
Next, the Labor Code proscribes a wide range of conduct that we
believe was unknown at common law, including the seating requirements at
issue here, pay stub information violations, and retaliation against employees
who bring complaints for Labor Code violations. We believe these and
probably many others represent the kind of novel rights unknown at common
law that animated the decision in Nationwide Biweekly because the UCL and
FAL likewise created consumer rights that did not previously exist. (See
Nationwide Biweekly, supra, 9 Cal.5th at pp. 322-327.)
Finally, appellant contends that the penalty assessment portion of
PAGA actions can be severed from the liability portion, with the trial court
deciding the former and the jury the latter. Nationwide Biweekly eschewed
just that type of severance, however. (Nationwide Biweekly, supra, 9 Cal.5th
at pp. 328-334 & fn. 22, [rejecting reliance on Tull v. United States (1987)
481 U.S. 412, which permitted severance of civil penalty phase from liability
phase under statute where equitable relief was also provided].)
Although PAGA is an action for civil penalties, it is an administrative
enforcement hybrid. If tried to a jury, the parties would gain a jury trial
right not otherwise available to either the agency or employers. Many of the
violations would be based on newly created rights that did not exist at
common law. Jurors would be called upon to sometimes exercise the same
discretion, subject to the same limitations and conditions, as the
administrative agency on whose behalf the action was brought, when
deciding whether to assess penalties in the first place. They would then be

14
asked to apply equitable principles to determine whether to reduce those
penalties below the amounts set by statute. On balance, we cannot conclude
that such an action has a pre-1850 common law analog that would call for the
right to a jury trial under the California Constitution.
B. The Merits
1. The Evidence and Issues at Trial
La Face’s lone PAGA cause of action alleged that Ralphs failed to
provide seating for her and other Ralphs cashiers, as required by IWC Wage
Order 7-2000 (Cal. Code Regs. tit. 8, § 11070, subd. 14.), which states: 13
“14. SEATS
(A) All working employees shall be provided with suitable seats when
the nature of the work reasonably permits the use of seats.
(B) When employees are not engaged in the active duties of their
employment and the nature of the work requires standing, an
adequate number of suitable seats shall be placed in reasonable
proximity to the work area and employees shall be permitted to use
such seats when it does not interfere with the performance of their
duties.” 14
Stephen Morrissey, who was appellant’s ergonomics expert, testified
that he visited 15 Ralphs stores to observe cashiers at work. According to
Morrissey, cashiers spent most of their time scanning items, interacting
with customers, and bagging groceries. He noted that cashiers had other
duties as well, such as “cleaning, stocking, and other duties as assigned
depending on the amount of time available and so on.”

13 Appellant’s original complaint included the Kroger Company –
Ralphs corporate parent – as a defendant. She later dismissed Kroger
from the action.
14 For ease of reference, we will refer to these wage order provisions

as Section 14(A) and Section 14(B). The statutory basis for PAGA relief
asserted by appellant was section 1198, which provides for the
promulgation of administrative wage orders that govern the wages, hours,
and other conditions of employment. Appellant has abandoned her
Section 14(A) claim and our recitation of the evidence is therefore limited
to her Section 14(B) claim.
15
 Morrissey said that cashiers did experience lulls in work, during which
they would organize products or “go down the line” to look for customers
ready to check out, which Ralphs calls “fishing for customers.” Sometimes
the cashiers would stay at their stations and wait, but there were no seating
options available to them. On cross-examination, Morrissey agreed that he
saw cashiers standing idle at their stations for no more than 20 or 30 seconds
at a time. Otherwise, they were “looking for something to do and then going
off and finding something to do and having to run back when customers show
up.”
Appellant LaFace testified that she had been employed at Ralphs for 32
years, the last eight as a cashier. About 90 percent of her workday as a
cashier would be spent at the register. When a cashier was not busy
checking out customers, “if you have a lot of change in your drawer, you
would open your drawer, get your change, and fill up your changer. You
could wipe down your area.” On cross-examination, LaFace agreed that she
was supposed to be fishing for customers if there were none in her checkout
line.
John Yannoulatos testified that he had worked for Ralphs for 34 years,
about 30 of those as a cashier. Yannoulatos spent most of his workday in the
checkstand’s cashier bay. When no customers were in line he was supposed
to clean, organize product, or fish for customers. Yannoulatos stated that
having something to rest on for very short periods throughout the day—“30
seconds, maybe a minute”—would be helpful.
Appellant called as a witness Brian Gray, an asset protection manager
for Ralphs. Gray testified that when cashiers are not checking out customers,
they will “face an aisle” (arrange product on the shelves), or assist in other
departments.
Ralphs cashier Teresa Alvarez testified that cashiers would sometimes
sit on the checkstand’s bagging area. She also testified that Ralphs preferred
cashiers to straighten products on shelves or fish for customers instead of
resting.
Long-time Ralphs employee Howard Simmons testified that when
cashiers were not checking out customers, they were supposed to be
straightening magazines, stocking shelves, dusting, or cleaning the floor.

16
 Ralphs called store manager Jane Pickett, who testified that the “best
practice” for cashiers when no customers are in line is to fish for customers,
clean, and restock items. Division front-end manager and Kroger sales
manager Diane Wackeen testified that cashiers should have no idle time.
When not performing their cashier duties, they should be cleaning their
scanners and register areas, organizing, fishing for customers, or bagging for
other cashier’s customers. Ralphs sales manager Susan Albrecht testified
that when cashiers were not actively checking out customers, they should be
cleaning, putting away “go-backs,” straightening, or fishing.
Jeffrey Fernandez, who was Ralphs’s ergonomics expert, testified that
when there were no customers to check out, cashiers “keep themselves busy
by . . . going and fishing for customers, going and trying to get customers,
drawing customers to their aisle, cleaning and restocking their supplies, and .
. . arranging their go-backs.”
Ralphs District Manager Michael Walker testified that when cashiers
do not have customers in line, they can “do a whole slew of different
responsibilities in the store. We have used them to fill dairy boxes, to bring
out grocery loads late at night, to assist in produce, replenish shelves as they
get depleted throughout the day, sometimes gum and candy a lot [sic]. I
mean, there is always something to do in a grocery [sic] and the cashier is
somebody that we would really expect to help out when there is downtime.”
The court ruled in favor of Ralphs both from the bench and in a later
written statement of decision. Relying on Kilby v. CVS Pharmacy, Inc. (2016)
63 Cal.4th 1 (Kilby), the court found that appellant “failed to prove any
violation of section 14(B) of Wage Order No. 7.” 15
Relying on Kilby, supra, 63 Cal.4th at page 19, the trial court found
that Section 14(B) applies if there are lulls in operation when an employee,
while still on the job, is not then actively engaged in any duties. Section
14(B) does not require seats to be provided if doing so would interfere with
employees’ performance of their duties. (See Cal. Code Regs., tit. 8, § 11070,
subd. 14(B).)

15 We discuss Kilby in detail in the following section.
17
 The trial court stated that appellant “and her witnesses agreed that
Ralphs expects them, as part of their job duties, to keep busy and not stand
around idly.” The court found that “Ralphs cashiers are required, as part of
their job duties, to be active and busy at all times, unless they are on their
regulated work breaks, a fact which [appellant’s] witnesses conceded. It is
part of the job requirements for cashiers to always be active, and this was
supported by the evidence presented at trial. [¶] The Court finds that
[appellant] failed to present evidence at trial that supported any violation of
Wage Order Section 14(B). Furthermore, it is the Court’s findings that the
testimony presented at trial overwhelmingly substantiates this conclusion.”
2. Kilby
Kilby, supra, 63 Cal.4th 1, is the only reported decision to discuss
Section 14(B). In that case, the United States Ninth Circuit Court of Appeals
certified questions to the California Supreme Court arising from two separate
actions regarding language in Sections 14(A) and (B) about the “nature of the
work” and when that work “reasonably permits the use of seats.”
In one of the two underlying lawsuits, plaintiff Kilby was employed by
defendant CVS Pharmacy, Inc. (CVS). “Kilby’s duties included operating a
cash register, straightening and stocking shelves, organizing products in
front of and behind the sales counter, cleaning the register, vacuuming,
gathering shopping baskets, and removing trash. CVS did not provide Kilby
a seat for these tasks,” which Kilby alleged violated section 14. (Kilby, supra,
63 Cal.4th at p. 9.) In the other underlying lawsuit, plaintiff Henderson and
three other bank tellers sued their employer, JPMorgan Chase Bank (Chase),
alleging a violation of section 14. (Id. at p. 10.)
Examining the interplay between Sections 14(A) and 14(B), the Kilby
court stated, “the IWC has stated that section 14(B) applies during ‘lulls in
operation’ when an employee, while still on the job, is not then actively
engaged in any duties. (IWC, 1976 Wage Orders, Summary of Basic
Provisions, Seats, p. 3.) Taking [Sections 14(A) and 14(B)] together, if an
employee’s actual tasks at a discrete location make seated work feasible, he is
entitled to a seat under section 14(A) while working there. However, if other
job duties take him to a different location where he must perform standing
tasks, he would be entitled to a seat under 14(B) during ‘lulls in operation.’”

18
(Kilby, supra, 63 Cal.4th at p. 19, emphasis in original.) Kilby further stated
that to determine whether seating is required, “[c]ourts should look to the
actual tasks performed, or reasonably expected to be performed.” (Id. at p.
18.)
3. The Parties’ Contentions
The parties generally agree that the evidence showed that when
cashiers were not checking out customers, Ralphs expected them to be
cleaning, restocking, and fishing for customers. The parties disagree,
however, whether that expectation constituted “lulls in operation” requiring
seating under section 14(B) and Kilby.
Appellant contends it did not matter whether Ralphs expected its
cashiers to stay busy with other tasks when there were no customers to check
out. The “reality,” appellant contends, is that many times cashiers would
remain at their checkstands, talking to other employees or using their mobile
phones. Ralphs’s expectation that they should leave to assume other tasks
was neither reasonable nor practicable, given that most of these down times
were extremely brief. Finally, appellant contends that, under Kilby,
determining whether lulls in operation occur should focus on a particular
duty at a particular location, not on employee job duties in general.
Ralphs counters that Section 14(B) applies because it states that
seating is required only “[w]hen employees are not engaged in the active
duties of their employment” and when sitting “does not interfere with the
performance of their duties.” Because cashiers are required to be active and
busy at all times, Ralphs contends there were no “lulls in operation” for
which seating was required. According to Ralphs, “An employee cannot
create an entitlement to seating under Section 14(B) simply by shirking job
duties.” It also contends that under Kilby, “the ‘duties’ at issue under 14(B)
are defined by Ralphs, not . . . rogue employees.”
4. Analysis
Because the parties agree that Ralphs expected its cashiers to take on
other duties when no customers were in line, it appears that the issue before
us involves the application of law to undisputed facts, with the issue limited
to whether the absence of customers in line constituted a lull in operation
under Section 14(B). Accordingly, we exercise de novo review. (Boling v.

19
Public Employment Relations Board (2018) 5 Cal.5th 898, 912-913.) Wage
orders are “legislative regulations” that are “ liberally construed to protect
and benefit employees.” (Kilby, supra, 63 Cal.4th at p. 11.) “When a wage
order’s validity and application are conceded and the question is only one of
interpretation, the usual rules of statutory interpretation apply.” (Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1027.) In
interpreting a statute, courts examine the statutory language, giving it a
plain and commonsense meaning. If the language is clear, courts must
generally follow its plain meaning. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th
183, 190.) 16
Kilby touched only briefly on seating under Section 14(B), but provided
sufficient guidance for the issue before us. The Kilby court observed that
Section 14(B) applies during “‘lulls in operation’ when an employee, while
still on the job, is not then actively engaged in any duties.” (Kilby, supra, 63
Cal.4th at p. 19, emphasis in original.) One of the issues addressed in Kilby
was whether the employer’s “business judgment” was a factor to be
considered in determining whether seating was required. (Id. at p. 8.) The
court stated, “There is no question that an employer may define the duties to
be performed by an employee. As the [Division of Labor Standards
Enforcement] observes, ‘[a]n employer’s business judgment largely
determines the nature of work of the employee both generally, as well as
duties or tasks specifically.’” (Kilby, supra, 63 Cal.4th at p. 21.) And in
general, to determine whether seating is required “[c]ourts should look to the
actual tasks performed, or reasonably expected to be performed.” (Id. at p.
18.)
Appellant does not contend, and the evidence does not show, that any of
the alternative duties cashiers were expected to perform could be carried out

16 As set forth below, we alternatively conclude that even if the
evidence is conflicting, there was substantial evidence that Ralphs did not
violate Section 14(B). To the extent the evidence might be viewed as
conflicting, we review the trial court’s factual findings under the substantial
evidence standard, resolving all conflicts, and drawing all inferences in favor
of the judgment. To the extent we interpret Section 14(B), however, the
usual rules of statutory construction apply. (In re Marriage of Feldman
(2007) 153 Cal.App.4th 1470, 1478.)
20
while seated. Ralphs expected that while cashiers were not actively checking
out customers, they would clean, restock, assist in other departments, or fish
for customers. No evidence suggested these expectations were unreasonable,
nor did appellant make such an argument. Despite these expectations,
employees sometimes did not engage in their expected job duties. However,
their decision to remain at their checkstands rather than perform their other
expected tasks does not constitute a lull in the operation of those other
duties.
Moreover, Section 14(B) provides for seats when sitting “does not
interfere with the performance of [the employee’s] duties.” Sitting in or near
the checkstands when there are no customers in line instead of cleaning,
restocking, assisting other departments, or fishing, would interfere with the
performance of the cashiers’ other duties.
Appellant argues that if the trial court’s approach is affirmed, “then
any employer could avoid providing a seat under Section 14(B) by simply
claiming that ‘employees are always expected to be busy,’ rendering the
seating requirement illusory.” Not so. Kilby made clear that an employer’s
mere preference for having employees standing—there, the employers’
“judgment that employees provide better customer service while standing”
(Kilby, supra, 63 Cal.4th at p. 21)—is not controlling.
Instead, “[t]he standard is an objective one. An employer’s evaluation
of the quality and effectiveness of overall job performance is among the
factors that can be objectively considered in light of the overall aims of the
regulatory scheme, which has always been employee protection. An objective
inquiry properly takes into account an employer’s reasonable expectations
regarding customer service and acknowledges an employer’s role in setting
job duties. It also takes into account any evidence submitted by the parties
bearing on an employer’s view that an objective job duty is best accomplished
standing.” (Kilby, supra, 63 Cal.4th at pp. 21-22.)
The trial court’s findings were based on the evidence presented about
cashiers’ job duties as a whole, not simply Ralphs’s stated preferences about
the nature of customer service. Witnesses called by both parties testified
about the cashiers’ duties, including the expectation that cashiers were
supposed to stay busy even while not checking out customers. An expectation

21
that employees work while on the clock, rather than look at their phones or
do nothing, seems objectively reasonable. There was ample evidence for the
trial court to make an objective evaluation of the job duties as required by
Kilby. We therefore find no error in the court’s interpretation of Section
14(B) and Kilby.
Ralphs also contends that substantial evidence supports the trial
court’s findings. Appellant asserts, for the first time in her reply brief, that
there was insufficient evidence to support the trial court’s conclusions
regarding section 14(B). “We generally do not consider arguments raised for
the first time in a reply brief.” (Raceway Ford Cases (2016) 2 Cal.5th 161,
178.)
Assuming for discussion’s sake that the evidence was in conflict, we
find no error. “When the trier of fact has expressly or implicitly concluded
that the party with the burden of proof failed to carry that burden and that
party appeals, it is somewhat misleading to characterize the failure-of-proof
issue as whether substantial evidence supports the judgment.” (Shaw v.
County of Santa Cruz (2008) 170 Cal.App.4th 229, 279.) “Thus, where the
issue on appeal turns on a failure of proof at trial, the question for a
reviewing court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law. [Citations.] Specifically, the question
becomes whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave no room for
a judicial determination that it was insufficient to support a finding.” (Shaw,
supra, 170 Cal.App.4th at p. 279; see also Dreyer's Grand Ice Cream, Inc. v.
County of Kern (2013) 218 Cal.App.4th 828, 838; Petitpas v. Ford Motor Co.
(2017) 13 Cal.App.5th 261, 302.)
Appellant has not met this burden. The evidence showed that Ralphs’s
cashiers were supposed to stay busy when they were not checking out
customers. The evidence does not support appellant’s contention that there
were lulls during which cashiers could sit in chairs while “not engaged in the
active duties of their employment.” (Section 14(B).) To the contrary, sitting
at or near the checkstands instead of cleaning, restocking, and fishing for
customers, would have interfered with the active duties of the cashiers’

22
employment. Thus, the evidence supports the trial court’s conclusion that the
evidence did not support appellant’s claim under Section 14(B).
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Each party
shall bear its own costs on appeal.
CERTIFIED FOR PUBLICATION

MICON, J.*

We concur:

WILLHITE, ACTING P.J.

CURREY, J.

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

23