The California Court of Appeal, Sixth Appellate District, recently held in Santos, et al., v. El Guapos Tacos, LLC, et al. (No. H046470) that a plaintiff filing a representative cause of action under the Private Attorneys General Act (“PAGA”) need not specifically reference other aggrieved employees in their pre-lawsuit notice to the Labor and Workforce Development Agency (“LWDA”). In other words, the ruling in Santos means that plaintiffs are not required to specify in their pre-litigation notice to the LWDA whether they are pursuing a claim under PAGA as individuals or as representatives of other aggrieved and similarly situated employees.
This opinion clashes with previously-established authority on the same issue. In 2018, Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804 held that where a plaintiff’s notice to the LWDA expressly references only the plaintiff, it fails “to give the LWDA an adequate opportunity to decide whether to allocate resources to investigate [the plaintiff’s] representative action.” (Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, 809.) Therefore, according to Khan, a plaintiff fails to comply with the administrative requirement of the representative portion of a PAGA claim and can only proceed on his/her own behalf if the LWDA notice fails to reference other aggrieved, similarly situated employees.
The Court of Appeal distinguished the notices in Santos from Khan by pointing to the fact that the plaintiffs’ notice in Santos did not refer to “my” or “our” claims, did not allege violations stemming solely from individual terminations, and did not suggest the violations were isolated. Rather, the court noted the LWDA notice in Santos alleged sufficient facts and theories for the LWDA to infer that other, unmentioned employees were impacted by the policies and practices complained of by the plaintiffs. It also noted that PAGA actions are, as a matter of law, representative actions on behalf of other employees, and notices should only be limited to the plaintiff’s individual claims where this limitation is expressly stated.
The court therefore found the plaintiffs’ notice was sufficient for purposes of pursuing a representative PAGA action. The holding in Santos creates authority that gives plaintiffs greater flexibility in articulating their claims to the LWDA. According to Santos, an LWDA pre-suit notice is sufficient to support a representative action so long as the plaintiff avoids limiting the language of their PAGA claim to their individual claims and identifies sufficient facts and theories in the notice to infer that other employees were likely impacted.
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