Opinion
CASE NO. CV F 08-1122 LJO GSA.
February 26, 2009
ORDER ON DEFENDANTS' MOTION TO DISMISS
Defendants The Mayflower Companies and Jeff and Lisa Wilbur move to dismiss plaintiffs' first, fifth, sixth and tenth causes of action in First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff's filed an opposition on February 6, 2009. Defendants filed a reply on February 17, 2009. Pursuant to Local Rule 78-230(h), this matter was submitted on the pleadings without oral argument and the hearing set for February 24, 2009 was vacated. Having considered the moving, opposition, and reply papers, as well as the Court's file, the Court issues the following order.
FACTUAL BACKGROUND
Plaintiffs bring a class action on behalf of themselves and a class of allegedly seasonal and migrant agricultural workers who work or have worked for defendants. Defendants operate a dairy business in Tulare County.
Plaintiffs allege they were systematically denied overtime and minimum wages, rest and meal periods and other wage and hour violations. (First Amended Complaint ("FAC") ¶ 17.) The allegations pertinent to the motion to dismiss are as follows. Plaintiffs allege that they and members of the putative class are and/or were engaged in agricultural labor during the relevant time period. (FAC ¶ 40.) Plaintiffs allege that a) the production of milk is "seasonal" in that production slacks during the summer months; b) that the work was of a temporary or seasonal nature; c) that there is no guarantee of employment; and d) that the workers are of the very type of laborers Congress intended Agricultural Workers Protection Act, as well as its predecessor statute, the 1976 Farm Labor Contractor Registration Act, to protect. (FAC ¶ 40.)
Defendants move to dismiss the following claims pursuant to FRCP 12(b) and 21.
1. First Cause of Action for violations of the Federal Agricultural Workers Protection Act (on the grounds that these dairy worker are not agricultural workers);
2. Fifth Cause of Action for violations of California Labor laws regarding rest periods;
3. Sixth Cause of Action for violations of California Labor laws regarding meal periods;
4. Tenth Cause of Action for violations of California Labor Code Private Attorney General Act ("PAGA")
Defendants' notice of motion is entitled "Motion to Strike," yet the body of the notice moves, not to strike pursuant to Rule 12(f), but to dismiss the first, fifth, sixth and tenth causes of action to Fed.R.Civ.Proc. 12(b) and pursuant Fed.R.Civ.Proc. 21. Rule 12(b) is a motion to dismiss and Rule 21 is misjoinder of parties. In its opposition, plaintiff does not argue inadequate notice. Therefore, the Court addresses the merits of defendants' arguments and construes the motion as a Motion to Dismiss pursuant to Rule 12(b)(6).
ANALYSIS AND DISCUSSION
A. F.R.Civ.P. 12(b)(6) Motion Standards
A Fed.R.Civ.P. 12(b)(6) motion to dismiss is a challenge to the sufficiency of the pleadings set forth in the complaint. "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheurer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974); Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). A F.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990); Graehling v. Village of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). F.R.Civ.P. 12(b)(6) dismissal is proper when "plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102 (1957).In resolving a Rule 12(b)(6) motion, the court must: (1) construe the complaint in the light most favorable to the plaintiff; (2) accept all well-pleaded factual allegations as true; and (3) determine whether plaintiff can prove any set of facts to support a claim that would merit relief. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-338 (9th Cir. 1996). Nonetheless, a court is "free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Farm Credit Services v. American State Bank, 339 F.3d 765, 767 (8th Cir. 2003) (citation omitted). A court need not permit an attempt to amend a complaint if "it determines that the pleading could not possibly be cured by allegation of other facts." Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). With theses standards in mind, this Court turns to plaintiffs' causes of action.
B. First Cause of Action Under AWPA
Plaintiffs' first cause of action is for violation of the Migrant and Seasonal Agricultural Workers Protection Act ("AWPA"), 29 U.S.C. § 1801 et seq. Defendants argue that plaintiffs have failed to allege facts sufficient to prove that they are "temporary" or "seasonal" workers, as defined in the AWPA. Defendants argue that plaintiff cannot "prove" that they are employed as "seasonal or other temporary nature," and therefore are not "migrant agricultural workers" within the meaning of the AWPA. (Doc. 13-1, Moving papers p. 2.) Defendants argue there is no viable argument that a diary operation is seasonal or temporary work. (Doc. 13-1, Moving papers p. 2.) Defendants argue that their business is a year round operation and does not experience seasonal layoffs. Thus, defendants argue that because they do not employ seasonal employees, the plaintiffs are not protected by AWPA.
Plaintiff argues that they have adequately plead they are engaged in agricultural employment and that they are seasonal agricultural workers.
1. Agricultural Workers Protection Act
The AWPA imposes a variety of requirements on employers and recruiters of migrant and seasonal agricultural workers. The central protections for workers are set forth in the "Wages, Supplies, and Other Working Arrangements" provisions of the Act, 29 U.S.C. § 1822 (applicable to employers using migrant workers) and § 1832 (applicable to employers using seasonal workers), and in the "Information and Recordkeeping Requirements" provisions of the Act, id., § 1821 (applicable to employers using migrant workers) and § 1831 (applicable to employers using seasonal workers). See Barajas v. Bermudez, 43 F.3d 1251, 1260 (9th Cir. 1994). The AWPA provides many protections for seasonal agricultural workers, including payment of wages when due. Vega v. Weeks Wholesale Rose Grower, Inc., 2008 WL 4224399, 8 (E.D.Cal. 2008). The AWPA mandates that agricultural employers provide to each worker, for each pay period, an itemized written statement that includes the basis on which wages are paid; the number of piecework units earned, if paid on a piecework basis; the number of hours worked; the total pay period earnings; the specific sums withheld and the purpose of each sum withheld; and the net pay. 29 U.S.C. §§ 1821(d), 1831(c).The AWPA is "remedial in nature and should be construed broadly to effect its humanitarian purpose." Barajas v. Bermudez, 43 F.3d at 1260 (quoting Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1505 (11th Cir. 1993)).
A seasonal agricultural worker is defined in AWPA as an "individual who is employed in agricultural employment of a seasonal or other temporary nature and is not required to be absent overnight from his permanent place of residence." 29 U.S.C.A. § 1802(10). A migrant worker is defined as "an individual who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence." 29 U.S.C.A. § 1802(9).
2. Plaintiffs allege they are Seasonal or Migrant Workers
Here, plaintiffs have alleged in the FAC that they are seasonal or migrant workers. For instance, plaintiffs allege "BENITEZ is, or was, a seasonal and/or migrant agricultural worker, within the meaning of 29 U.S.C. § 1802 . . ." (FAC ¶ 8.) For each other named plaintiff, the complaint alleges that the named plaintiff was or is a "seasonal and/or migrant" agricultural worker. (See e.g., FAC ¶ 9, 10, 11.) Plaintiff alleges the type of agricultural work that they performed while employed for defendant. "Plaintiffs and the class are engaged in traditional field work relating to the farming operations on the ranch, and are normally required to harvest or produce dairy products and in particular milk in its unmanufactured state. Plaintiffs and the class are migrant and/or seasonal agricultural workers entitled to the protections and benefits of the AWPA, 29 U.S.C. §§ 1801 et seq. and are engaged in agricultural labor . . ." (FAC ¶ 40.) Plaintiffs further allege: "The production of milk is 'seasonal' in that production slacks during the summer months. The work was of a temporary or seasonal nature and there is no guarantee of employment . . ." (FAC ¶ 40.) Thus, the complaint alleges that plaintiff are covered by AWPA because they are seasonal and migrant workers within the meaning of the AWPA.
3. Facts Outside the Pleadings
Defendants argue that the complaint should be dismissed because defendants' operations is not "seasonal." Defendants argue that AWPA does not apply because plaintiffs are dairy workers and dairy work is year round business. Defendants ask the Court consider facts outside of the pleadings that plaintiffs are year round employees.
The Court, however, cannot look outside the pleading and determine factual disputes. A rule 12(b)(6) motion is a facial challenge to the complaint. The court cannot consider material outside the complaint, such as facts presented in briefs. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). As shown from the pleadings, plaintiffs allege they are seasonal and migrant workers who fall with the meaning the AWPA. The Court is not permitted on a motion to dismiss to consider factual disputes outside of the pleadings.
Defendant cites to Ramirez v. Decoster Egg Farm, 194 F.R.D. 348 (D.Me 2000) for the proposition that if a business is a year round operation, it is not "seasonal" and its employees do not fall with AWPA. However, Ramirez involved a motion for summary judgment where a court may properly consider, and indeed must, consider evidence outside the pleadings. A motion for summary judgment under Rule 56 addresses the sufficiency of the evidence to support plaintiff's claims. Schwarzer, Tashima, and Wagstaffe, Federal Civil Procedure Before Trial, 9th Circuit Edition § 9:204 (The Rutter Group 2008). Whether plaintiffs may ultimately prove they are seasonal or migrant workers is entirely different as to whether plaintiffs have properly alleged they are seasonal or migrant workers. This plaintiffs have done and the Court may not ascertain the truth of the allegations.
Accordingly, the motion to dismiss the first cause of action must be denied.
C. Fifth and Sixth Causes of Action for Meal and Rest Periods
Defendant moves to dismiss these causes of action on the grounds that no private right of action exists under California Labor Code § 226.7. Plaintiff argues the contrary; that California law authorize a private right of action for meal and rest period wages.
The Fifth Cause of Action alleges a violation of California Labor Code § 226.7 for failure to provide rest periods. Plaintiff alleges, "Defendants violated California Labor Code § 226.7 and the wage orders by failing to authorize and permit rest periods and by failing to provide one hour of additional wages at the employees' regular rate of compensation for each work day that the rest periods were not provided . . ." (FAC ¶ 70.)
The Sixth Cause of Action alleges a violation of California Labor Code § 226.7 for failure to provide meal periods. Plaintiff alleges, "Defendants violated California Labor Code §§ 226.7 and Wage Orders by failing to provide, authorize and/or permit mandated meal periods . . ."
California Labor Code § 226.7 states: "No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission." Labor Code § 226.7. Section 226.7(b) requires that employees be paid "one additional hour of pay" for each work day that they are required to work through a meal or rest period. Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1104, 56 Cal.Rptr.3d 880, 887 (2007).
1. A Private Right of Action
An employee has a private right of action to recover wages. "[Labor Code] Section 218 authorizes an employee or his or her assignee to 'sue directly' for any unpaid wages or penalty owed under the Labor Code." Sampson v. Parking Service 2000 Com, Inc., 117 Cal.App.4th 212, 220, 11 Cal.Rptr.3d 595, 601 (2004). Failure to pay for meal periods or rest periods is considered a wage. Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007). In Murphy, the court held that pay for omitted breaks (Lab. Code, § 226.7) is not a penalty, but a wage or premium. The court held, among other things, that payments for meal and rest breaks mandated by section 226.7 of the Labor Code are wages. Murphy, 40 Cal.4th at 1102; See Kamar v. RadioShack Corp., 2008 WL 2229166, 5 (C.D.Cal. 2008) (Although Murphy did not involve whether there is a private right of action to enforce IWC wage orders such as Wage Order 4-2001, the decision is instructive, because the very premise of the Murphy court was that meal and rest break premiums are "forms of wages" just like overtime and split shift premiums and reporting time.); See Guess v. U.S. Bancorp, 2007 WL 1345194, *3 (N.D.Cal. 2007) (this Court is persuaded that if squarely presented with the issue the California Supreme Court would conclude that there is a private right of action under § 226.7); Mendez v. Bottomley Distributing Co., Inc., 2007 WL 1342641, *2-4 (N.D.Cal. 2007) (the California Supreme Court implicitly held in Murphy that a private right of action exists under § 226.7). See also Campbell v. Pricewaterhouse Coopers, 2007 WL 841694 (E.D.Cal. 2007) (reaching that conclusion prior to Murphy).
Section 218 addresses the authority of a wage claimant to enforce Article 1. Section 218 provides: "Nothing in this article shall limit the right of any wage claimant to sue directly or through an assignee for any wages or penalty due him under this article." A right of private action under section 218 pertains only to "this article", i.e. sections 200 to 243. Section 226.7 relating to meal and rest breaks is within the range of sections 200 to 243. Thus, section 218 empowers a wage claimant to sue directly to recover any wages or penalties personally due the employee under Article 1.
Accordingly, a private right of action exists to enforce section 226.7 because payments for missed meal and rest periods is a wage.
2. Mandating a Meal and Rest Period
Defendant further argues that the fifth and sixth causes of action should be dismissed because an employer does not have a duty to ensure that employees take meal and rest breaks but merely must allow the employees the opportunity to take the breaks.
Plaintiffs allege that:
DEFENDANTS violated California Labor Code § 226.7 and the wage orders by failing to authorize and permit rest periods and by failing to provide one hour of additional wages at the employees' regular rate of compensation for each work day that the rest periods were not provided and by actively prohibiting or discouraging rest periods by putting them under excessive pressure to skip these breaks and by failing to schedule or otherwise provide the means for such rest periods to occur. (First Amended Complaint ¶ 70.)
Plaintiff argues that the controlling California authority, Cicairos v. Summit Logistics, Inc., 133 Cal.App.4th 949, 962, 35 Cal.Rptr.3d 243 (2005), holds that "employers have 'an affirmative obligation to ensure that workers are actually relieved of all duty,'" (quoting Dept. of Industrial Relations, DLSE, Opinion Letter No. 2002.01.28 (Jan. 28, 2002) at 1.) Thus, plaintiff argues that an employer must ensure that meal and rest periods are taken.
Several courts, however, have rejected or distinguished the holding in Cicaiross. In Brown v. Federal Express Corp., 249 F.R.D. 580, 585 (C.D.Cal., 2008), the court refused to follow Cicairos. It noted that "[r]equiring enforcement of meal breaks would place an undue burden on employers whose employees are numerous or who, as with Plaintiffs, do not appear to remain in contact with the employer during the day." Id. at 585. The court also noted that "[i]t would also create perverse incentives, encouraging employees to violate company meal break policy in order to receive extra compensation under California wage and hour laws." Brown v. Federal Express Corp., 249 F.R.D. at 585 (FedEx was required only to make meal breaks and rest breaks available to Plaintiffs, Plaintiffs may prevail only if they demonstrate that FedEx's policies deprived them of those breaks.); accord Salazar v. Avis Budget Group, Inc., 251 F.R.D. 529, 533 (S.D.Cal. 2008) ("The Court agrees with the compelling reasons . . . for interpreting "provide" to mean "make available" rather than "ensure taken."); White v. Starbucks Corp., 497 F.Supp.2d 1080, 1088 (N.D.Cal. 2007) (same). See Perez v. Safety-Kleen Systems, Inc., 253 F.R.D. 508, 513 (N.D.Cal. 2008) ( Cicairos can thus be read to hold that an employer is liable for failing to "provide" meal breaks if it has a policy or practice of prohibiting or discouraging meal breaks.)
The Court does not find it necessary to resolve whether Cicairos is controlling for purpose of resolving this motion to dismiss. Here, plaintiffs have alleged conduct in which defendants affirmatively inhibited plaintiffs and forced plaintiffs to forego their meal and rest periods, not merely failed to ensure that rest and meal periods were taken. Plaintiffs' allegations take the complaint out of the Cicairos holding of whether a duty to ensure that employees take meal and rest breaks. Since plaintiffs allege affirmative conduct by defendants which infringe upon or prohibit meal and rest periods, plaintiffs' allegations are sufficient to survive the motion to dismiss.
D. Tenth Cause of Action
The tenth cause of action is brought under the California Private Attorney General Act ("PAGA"), Labor Code § 2698.
Defendants argue that plaintiffs have failed to properly plead the tenth cause of action as a class action. Defendants argue that case law requires the claim to be plead as a class action.
1. The Private Attorney General Act
The PAGA was adopted to empower aggrieved employees to act as private attorney generals and to authorize them to seek civil penalties for Labor Code violations that previously could be assessed only by state agencies. Dunlap v. Superior Court, 142 Cal.App.4th 330, 336, 47 Cal.Rptr.3d 614 (2006). The PAGA states in pertinent part:
"an aggrieved employee may recover the civil penalty . . . in a civil action . . . filed on behalf of himself or herself and other current or former employees against whom one or more of the alleged violations was committed." (Cal.Labor Code § 2699(g)(1).)
"[PAGA] empowers or deputizes an aggrieved employee to sue for civil penalties 'on behalf of himself or herself and other current or former employees' as an alternative to enforcement by the [State]." Dunlap v. Superior Court, 142 Cal.App.4th at 336. The California Legislature enacted PAGA in 2003 in response to the Labor and Workforce Development Agency's shortage of funds and staffing to enforce the state's labor laws. Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 374-75 n. 6, 36 Cal.Rptr.3d 31 (2005). The Legislature determined that shortages in funding and staffing in these agencies were preventing vigorous pursuit of civil penalties and thus hampering their intended deterrent effect. Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1196, 78 Cal.Rptr.3d 572, 603.
Under California law, the State may "assess and collect" civil penalties from employers for violations of certain provisions of the Labor Code. See Cal. Labor Code § 2699(a). Under PAGA, an "aggrieved" employee "give[s] written notice by certified mail to the [State] and the employer of the specific provisions of [the Labor Code] alleged to have been violated." See Cal. Labor Code § 2699.3(a)(1). Should the State thereafter decide not to investigate, the employee may "as an alternative" to enforcement by the State, bring a civil action under PAGA to recover the civil penalties "on behalf of himself or herself and other current or former employees." See Labor Code § 2699.3(g)(1). Civil penalties recovered by aggrieved employees are distributed 75 percent to the State and 25 percent to the aggrieved employees. Cal. Labor Code § 2699(i).
2. "Representative" Action
Defendants argue that the PAGA cause of action must be brought as a class action, with all the protections afforded to the class certification process.
Defendants cite Arias v. Superior Court, 153 Cal.App.4th 777 (2007), review granted (Oct. 10, 2007), for the proposition that the California Supreme Court granted review on the issue of whether PAGA actions must be brought as a representative action or as a class action. As both parties acknowledge, Arias is not citeable for any controlling position because it has been taken for review. See e.g., Cal. Rules Court 8.1105. No other California authority has directly addressed the issue of whether a PAGA claim must be brought as a class action.
In the absence of authority from the California Supreme Court, this Court must use its best judgment to predict how that court would decide the issue. See General Motors Corp. v. Doupnik, 1 F.3d 862, 865 (9th Cir. 1993) ("Lower state court decisions may provide guidance as to the direction of the State Supreme Court's probable decisionmaking," but the court is not bound to follow such decisions.)
The PAGA does not contain any statutory language which requires the "representative action" to be brought as a class action. The statute uses the terms "on behalf of himself and other current or former employees," yet the statute is silent whether the requirements of class certification must be met. Where the California Legislature intends a class action to be mandatory, the Legislature has been specific in other acts. Compare the Unfair Competition Laws, Cal.Bus Prof. C § 17203 ("Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of Section 17204 and complies with Section 382 of the Code of Civil Procedure."); Consumer Protection laws, Cal.Civ.Proc. § 1781 (A consumer may "bring an action on behalf of himself and such other consumers" and the suit may be "maintained on behalf of all members of the represented class if [certain] conditions exist.") Thus, when a class action is required, the Legislature expressly so states. The Legislature has not expressly stated that class actions are mandated for causes of action under PAGA.
California's "class action" statute, Section 382, provides: "(W)hen the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all." Cal.Code.Civ.P § 382.
A class action requires an ascertainable class and a well-defined community of interest among class members. The "community of interest" requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 326, 17 Cal.Rptr.3d 906, 911 (2004).
A "representative" action is not same as a class action. "[W]hile every class action is a representative action, the converse is not the case." Salton City etc. Owners Assn. v. M. Penn Phillips Co., 75 Cal.App.3d 184, 191, 141 Cal.Rptr. 895, 900 (1977). "In either instance, however, justification for the procedural device whereby one may sue for the benefit of many rests on considerations of necessity, convenience, and justice." Salton City etc. Owners Assn., 75 Cal.App.3d at 191 (Generally in a class action suit seeking damages the class representative is obliged to give notice to the class.)
From the Court's research of recent cases, all PAGA cases have been brought as class actions, and not as individual claims. See e.g., Lu v. Hawaiian Gardens Casino, Inc., ___ Cal.App.4th ___, 88 Cal.Rptr.3d 345, 350 (2009), as modified, 2009 WL 325544 (class action for violation of employee protections contained in Labor Code section 221 (employers may not compel wage kickbacks); section 351 (employers may not take, collect or receive gratuities); section 450 (employers may not compel employees to patronize the employer)); Deleon v. Verizon Wireless, 170 Cal.App.4th 519, 88 Cal.Rptr.3d 29, 33 (2008) (class action under PAGA for penalties for unpaid hours worked, failure to pay reimbursements and overtime, waiting time penalties, and wage-statement violations, among other things,); Lopez v. Lassen Dairy, Inc., 2008 WL 4657740, 1 (E.D.Cal. 2008) (class action alleging eleven causes of action including violation of PAGA); Dimon v. County of Los Angeles, 166 Cal.App.4th 1276, 1279, 83 Cal.Rptr.3d 576, 579 (2008) (probation officer brought action on behalf of all current and former county probation officers who were not provided "with lawful meal periods" and "not paid the hour of pay for each meal period not provided."); Beebe v. Mobility, Inc., 2008 WL 474391, 6 (S.D.Cal. 2008) (in a class action, holding that identities of the employees "by name or job title" for whom Plaintiff seeks penalties is not required by the liberal pleading standards contained in Federal Rule of Civil Procedure 8.) While these cases did not decide the direct issue involved in this motion, the cases imply that the class action is the norm.
Plaintiffs argue that the PAGA does not require class certification because plaintiffs are asserting only the State of California's claims. Plaintiffs argument, however, that it is suing on behalf of the State of California, has been rejected by case law. "PAGA's language is clear and unambiguous: In a PAGA representative action, plaintiffs sue on behalf of themselves and other aggrieved employees, not on behalf of the State." Deleon v. Verizon Wireless, 88 Cal.Rptr.3d at 38. Indeed, the PAGA is not like a qui tam action, which is an action brought in the name of the state. Deleon, 88 Cal.Rptr.3d at 40 (the California False Claims Act allows an individual to bring a civil action "for the person and either for the State of California in the name of the state, . . ." Gov. Code, § 12652, (c)(1).) The PAGA allows plaintiffs bring their action "on behalf of himself or herself and other current or former employees, not on behalf of the government." Deleon, 88 Cal.Rptr.3d at 40 (emphasis in original). Accordingly, plaintiffs are not suing on behalf of the State.
Defendants raise a Due Process issue if a class action is not required under PAGA. Defendants argue that they "run the very real risk of facing multiple litigations over the very same claim." Defendants argue that "if plaintiffs proceed as a non-class and Defendants prevail, there is nothing whatsoever from stopping a different current or former employee of Defendants from filing up the very same claim, as they would not be bound by that judgment." (Doc. 15, Reply brief p. 10.)
In California, the principles of res judicata and collateral estoppel apply in the class action context to bar later relitigation of claims by absent class members. A class action lawsuit affects the rights of persons not before the court; the individual representative represents the interests of those absent persons. The success or failure of the individual litigant binds the absent class members. La Sala v. American Sav. Loan Assn., 5 Cal. 3d 864, 871, 872, 97 Cal. Rptr. 849 (1971). Thereafter, res judicata bars members of the class from relitigating claims related to the primary right already decided. Johnson v. American Airlines, Inc., 157 Cal. App. 3d 427, 203 Cal. Rptr. 638 (1984). Res judicata and collateral estoppel will apply as long as there was sufficient notice and opportunity to opt out, and adequate representation of the class members in the earlier case. Johnson v. American Airlines, 157 Cal.App.3d at 430-431; City of San Jose v. Superior Court, 12 Cal.3d 447, 463 (1974) (adequate representation requirement is the product in part of the relation between the res judicata effect of the class judgment on absent members and the requirements of due process.)
Defendants' argument has merit. Absent a class action mechanism under PAGA, a defendant could win against the named plaintiff and then face additional suits by other employees similarly situated. Absent a class action mechanism, a loss by the plaintiff would not bind other employees. As the California Supreme Court aptly analogized, a defendant is then open to "being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed." Fireside Bank v. Superior Court, 40 Cal.4th 1069, 1078, 56 Cal.Rptr.3d 861, 868 (2007) (establishing the rule that plaintiffs must seek class certification before resolution of the merits to eliminate what is known as "one way intervention").
Plaintiffs in a PAGA action assert claims that would otherwise be asserted by the State Labor and Workforce Development Agency. See Cal.Gov. Code § 12813. The Labor and Workforce Development Agency is authorized, pursuant to Labor Code section 210, to bring an action "in the name of the people of the State of California and the Labor Commissioner and the attorneys thereof may proceed and act for and on behalf of the people in bringing these actions." The civil penalties in such an action include a penalty of $100 or $200 for each failure to pay each employee, plus 25% of the amount unlawfully withheld. Lab.C. §§ 210, 225.5.
By analogy, a class action is similar in form as an action the Labor and Workforce Development Agency for civil penalties; a single action for all alleged violations. A class action is the same "single lawsuit," without the potential of multiple lawsuits, as would be filed by the Labor and Workforce Development Agency. A "representative action," on the other hand, would permit what the Supreme Court cautioned against, successive plaintiffs to peck a defendant to death with repeated claims until successful. People v. Pacific Land Research Co., 20 Cal.3d 10, 17, 141 Cal.Rptr. 20, 24 (1977) (Acknowledging due process rights to protect a defendant from multiple suits and other harmful consequences from adjudication of an uncertified class action).
A class action lawsuit pursuant to the PAGA would guard against such potential violations of due process. A class action would bind all potential class members to the adjudication of the civil penalties. Indeed, absent class action requirements, aggrieved employees may be encouraged to file multiple suits. An unsuccessful suit could be refiled by a different plaintiff because PAGA permits any "aggrieved employee to recover penalties." There is an incentive to file multiple suits: "[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the [State] and 25 percent to the aggrieved employees." Cal. Labor Code § 2699(I) (emphasis added). Thus, the PAGA provides incentives to "peck away" at a defendant. To allow a non-class action to proceed, would expose the defendant to the risk of multiple litigations, and possible inconsistent adjudications. Whether "one may sue for the benefit of many rests on considerations of necessity, convenience, and justice." Salton City etc. Owners Assn., 75 Cal.App.3d at 191. A class action would thus bind the members to the adjudication of the class.
Further, the potential of multiple litigations has a direct impact upon limited judicial resources. Class actions serve the important function of resolving the claims of many individuals at once, saving time and reducing cost. Kaye v. Mount La Jolla Homeowners Assn., 204 Cal.App.3d 1476, 252 Cal. Rptr. 67 (1988). This benefits the judicial system by eliminating repetitious litigation and providing a method of obtaining redress for claims too small to warrant litigation on their own. Richmond v. Dart Industries, Inc., 29 Cal.3d 462, 174 Cal. Rptr. 515 (1981). The potential of repetitious litigations fails to serve a legitimate purpose and consumes resources that are scarce.
Accordingly, this Court is of the opinion that the California Supreme Court will interpret PAGA as requiring a class action.
CONCLUSION
For the foregoing reasons, the Court rules as follows:
1. The Court DENIES the motion to dismiss the First, Fifth and Sixth Causes of Action.
2. The Court GRANTS the motion to dismiss the Tenth Cause of Action with leave to amend.
IT IS SO ORDERED.