Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from orders of the Superior Court of Los Angeles County No. BC344333. James C. Chalfant and Tricia Ann Bigelow, Judges.
Schonbrun Desimone Seplow Harris & Hoffman, Wilmer J. Harris and Peggy Roman-Jacobson for Cross-complainants and Appellants.
Law Offices of Howard S. Fisher and Howard S. Fisher for Cross-defendant and Respondent.
Cross-complainants and appellants Maria Elena Sinolinding and Bermalyn Bascug appeal from two separate orders sustaining demurrers without leave to amend as to their claims under Labor Code section 2699, part of the California Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.). Appellants are foreign nurses who brought their claims against cross-defendant and respondent United Staffing Solutions, Inc. (USSI), alleging that USSI required them to enter into employment agreements that provided for wages below the prevailing wage for nurses set by the U.S. Department of Labor. The trial courts ruled that while the alleged conduct violated section 432.5—which provides that an employer may not require an employee to agree to a term which the employer knows is prohibited by law—that statute could not form the basis of an enforcement action under section 2699. The trial courts further ruled that appellants had failed to comply with the administrative procedures set forth in section 2699.3 and that their failure to comply with the requirements of Code of Civil Procedure section 382 precluded them from pursuing their matters in a representative capacity.
Unless otherwise indicated, all further statutory references are to the Labor Code.
We construe the appeal as a petition for writ of mandate and grant the writ. Section 432.5 is among the statutes enumerated in section 2699.5 that gives rise to a civil action under section 2699. Moreover, appellants adequately pled exhaustion of the notice requirements set forth in section 2699.3. Finally, nothing in section 2699 or its related provisions establishes that compliance with the class action procedures outlined in Code of Civil Procedure section 382 is a prerequisite to bringing an action under that provision. Accordingly, appellants stated claims under section 2699.
FACTUAL AND PROCEDURAL BACKGROUND
On appeal from a judgment of dismissal following a demurrer sustained without leave to amend, we assume the truth of all well pleaded facts, as well as those that are judicially noticeable. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Appellants are registered nurses. Between 2000 and 2004, USSI actively advertised in the Philippines to recruit Filipino nurses to work in the United States. USSI retained then-attorney Deepak Parwatikar to recruit and negotiate with prospective candidates. On the basis of Parwatikar’s representations, among others, that appellants would be paid the prevailing wage as set by the United States Department of Labor, appellants signed written employment agreements (agreements) with USSI that provided they would be paid starting wages ranging from $10 to $16 per hour and a maximum wage of $21 per hour following an eight-week training period. The agreements also provided that in the event appellants breached the agreements within the first two years, appellants would be required to reimburse USSI in the amount of $20,000 for recruiting and training.
Though the complaints address other representations and contractual provisions, we address only those provisions relevant to the dismissed claims under section 2699.
In late 2004 and early 2005, appellants relocated from the Philippines to the United States. Though USSI initially refused to employ appellants as promised in the agreements, USSI ultimately employed appellants at an initial wage of $16 per hour and a subsequent wage of $18 per hour following the eight-week training period. In late 2005, appellants resigned from their employment with USSI after they learned that Department of Labor’s prevailing wage for registered nurses began at $23.26 per hour.
Appellant Sinolinding filed her operative third amended cross-complaint (TACC) in June 2006, and appellant Bascug filed her operative second amended cross-complaint (SACC) in October 2006. They alleged nine causes of action—penalties pursuant to section 2699 on behalf of themselves and all persons similarly situated, violation of section 1197, violation of section 203, violation of section 970, violation of Business and Professions Code section 17200, fraud, breach of contract, intentional infliction of emotional distress and negligence. In connection with their claims under section 2699, appellants alleged that USSI violated sections 432.5 and 1197 in the following manner: “a. That USSI failed to pay the minimum prevailing wages earned for all hours worked, including applicable waiting time penalties. [¶] b. That USSI engaged in an ongoing practice and scheme of forcing prospective employees to sign employment contracts containing agreement to perform work for less than the mandated prevailing wage for nurses in Southern California. [¶] c. That USSI [had a] practice and scheme of forcing prospective employees to sign employment contracts containing pay rates below the prevailing wage and illegal penalty provisions in the guise of liquidated damages.” Appellants also alleged that they provided written notice of the alleged violations via certified mail to USSI and the Labor and Workforce Development Agency (LWDA) and that they had exhausted all administrative procedures required by sections 2698, 2699 and 2699.3.
In July and August 2006, USSI demurred to the TACC and SACC, respectively. With respect to the claims under section 2699, USSI argued that the failure to pay the “prevailing wage” identified by the Department of Labor was not an act prohibited by law and therefore not actionable under section 432.5 and, in turn, under section 2699. It further asserted that appellants’ letters were inadequate to satisfy the requirements of section 2699.3. Finally, it asserted that appellants failed to comply with the requisite procedures for bringing a class action.
Following hearings in August and October 2006, the trial courts sustained USSI’s demurrers without leave to amend as to the first cause of action brought pursuant to section 2699. As to the TACC, the trial court agreed with each of the three grounds raised by USSI, ruling that a violation of section 432.5 “does not and, standing alone, cannot be the basis for a section 2699 private enforcement action”; that appellant Sinolinding’s notice was inadequate under section 2699.3 because it did “not set forth any provision of the Labor Code which actually would be violated by not paying a prevailing wage”; and that “Sinolinding may not pursue this cause of action in a representative fashion without fulfilling the requirements of [Code of Civil Procedure] section 382.” The trial court sustaining the demurrer without leave to amend as to the SACC based its decision on only one ground, ruling that a violation of section 432.5 could not form the basis for a cause of action under section 2699 because the underlying statute did not provide for civil penalties. Addressing the balance of the complaints, the trial court sustained the demurrer without leave to amend as to the second and ninth causes of action in the TACC and overruled the demurrer as to the remaining causes of action. The trial court sustained the demurrer without leave to amend as to the second cause of action in the SACC and overruled the demurrer as to all other causes of action.
These appeals followed. Although appellants have appealed from a nonappealable order sustaining a demurrer to less than all causes of action alleged, the procedural posture of this case is akin to that in Mounger v. Gates (1987) 193 Cal.App.3d 1248. In deciding to address the issues raised by an order sustaining a demurrer without leave to amend to some but not all of a complaint’s causes of action, the Mounger court reasoned: “Rather than dismiss the appeal, we treat the purported appeal as a petition for writ of mandate because it presents a question of public importance [citations]; the parties have fully briefed the propriety of the trial court’s ruling [citation]; and respondent did not challenge its appealability [citations]. We find the circumstances here compel us to decide the issue presented. [Citations.]” (Id. at p. 1254.)
In February 2007, we granted appellants’ petitions for writ of supersedeas and stayed trial on the remaining causes of action pending disposition of this appeal.
DISCUSSION
We review the trial court’s sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We assume the truth of properly pleaded factual allegations in the complaint as well as the truth of facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We construe the pleading in a reasonable manner and read the allegations in context. (Ibid.) However, we will not assume the truth of contentions, deductions, or conclusions of law or fact. (People ex rel. Lungren v. Superior Court, supra, at pp. 300–301; Moore v. Regents of University of California, supra, at p. 125.) Facts appearing in exhibits attached to the complaint are also accepted as true and given precedence over inconsistent allegations in the complaint. (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)
We apply the abuse of discretion standard in reviewing the trial court’s denial of leave to amend. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497–1498.) When a demurrer is sustained without leave to amend, we determine whether there is a reasonable probability that the defect can be cured by amendment. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1701.) Appellants bear the burden of proving the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (Blank v. Kirwan, supra, at p. 318; Coutin v. Lucas (1990) 220 Cal.App.3d 1016, 1020.)
Applying these standards, we conclude that the trial courts erred in sustaining the demurrers to the first cause of action in the TACC and the SACC. Appellants adequately alleged a violation of section 432.5 and, according to sections 2699 and 2699.5, a violation of that statute may form the basis for a cause of action under section 2699. Moreover, appellants adequately pled compliance with the notice procedures set forth in section 2699.3. Finally, there is no statutory or decisional law basis for requiring appellants to comply with Code of Civil Procedure section 382 in order to bring their section 2699 claims.
I. Appellants Stated a Cause of Action for Violation of Labor Code Section 2699.
Section 2699 provides in pertinent part: “(a) Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency 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.” The Labor Code provision allegedly violated was section 432.5, which provides that “[n]o employer, or agent, manager, superintendent, or officer thereof, shall require any employee or applicant for employment to agree, in writing, to any term or condition which is known by such employer, or agent, manager, superintendent, or officer thereof to be prohibited by law.”
As the factual basis for the violation, appellants alleged that “USSI engaged in an ongoing practice and scheme of forcing prospective employees to sign employment contracts containing agreement to perform work for less than the mandated prevailing wage for nurses in Southern California.” Appellants further alleged that in 2005 the lowest “prevailing wage” for registered nurses in the Los Angeles/Long Beach area was $23.26 per hour according to the Department of Labor statistics. (See OES/SOC Code 29-1111.00 (2005).) Accordingly, appellants alleged that by having them enter into employment agreements which included pay rates below the prevailing wage, ranging from $10 to $21 per hour, USSI violated section 432.5 by requiring appellants to agree in writing to a term which was known by USSI to be prohibited by law.
Both trial courts properly rejected USSI’s argument—renewed on appeal—that the agreements’ inclusion of a wage payment below the prevailing wage did not trigger section 432.5 because such payment was not a term prohibited by law. According to 20 Code of Federal Regulations part 656.10, an employer must follow specified application procedures for “any alien who is required by the Act to be a beneficiary of a labor certification in order to obtain permanent resident status in the United States . . . .” (20 C.F.R. § 656.10(a); see Buetini v. I.N.S. (E.D. Mich. 1994) 860 F.Supp. 1222, 1227 [“That regulation [20 C.F.R. § 656.10] set forth fields of occupation for which aliens may receive a blanket (i.e. automatic) labor certification due to the shortage of American workers in those fields”].) The regulation further provides that “[a]n employer seeking labor certification for an occupation listed on Schedule A must apply for a labor certification under this section and § 656.15.” (20 C.F.R. § 656.10(a)(3).) Part 656.5 Schedule A includes “[a]liens who will be employed as professional nurses . . . .” (20 C.F.R. § 656.5(a)(2).)
As part of the application process, the employer must provide certain attestations regarding the conditions of employment: “The employer must certify to the conditions of employment listed below on the Application for Permanent Employment Certification under penalty of perjury under 18 U.S.C. 1621(2). Failure to attest to any of the conditions listed below results in a denial of the application. [¶] (1) The offered wage equals or exceeds the prevailing wage determined pursuant to § 656.40 and § 656.41, and the wage the employer will pay to the alien to begin work will equal or exceed the prevailing wage that is applicable at the time the alien begins work or from the time the alien is admitted to take up the certified employment . . . .” (20 C.F.R. § 656.10(c)(1).) According to 20 Code of Federal Regulations part 656.40, the application process further requires that “[t]he employer must request a prevailing wage determination from the SWA [State Workforce Agency] having jurisdiction over the proposed area of intended employment.” (20 C.F.R. § 656.40(a).) If no collective bargaining agreement (CBA) applies and the employer has not independently conducted and provided an acceptable survey that complies with 20 Code of Federal Regulations part 656.40(g), “[t]he SWA determines the prevailing wage as follows: [¶] . . . [¶] (2) If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided in paragraph (b)(3) of this section, of the wages of workers similarly employed in the area of intended employment. The wage component of the DOL Occupational Employment Statistics Survey shall be used to determine the arithmetic mean, unless the employer provides an acceptable survey under paragraph (g) of this section.” (20 C.F.R. § 656.40(b)(2).) The employer may appeal the SWA’s prevailing wage determination under 20 Code of Federal Regulations part 656.41.
These provisions confirm that USSI was required by law to pay appellants a wage equal to or exceeding the prevailing wage as determined by the Department of Labor’s occupational employment statistics survey. We are unpersuaded by USSI’s assertion that it was governed by the labor certification application process outlined in 20 Code of Federal Regulations part 656.15, which requires the employer to obtain a prevailing wage determination but makes no provision for the payment of that wage. The express language of 20 Code of Federal Regulations part 656.10 requires an employer seeking labor certification for a professional nurse to file “under this section and § 656.15.” (20 C.F.R. § 656.10(a)(3), italics added; compare 20 C.F.R. § 656.10(a)(2) & (a)(4) [permitting employers seeking labor certification for other occupations to file under “§ 656.17 or § 656.18” and “§ 656.16 or § 656.17”].) Because federal law requires an employer to pay an alien the prevailing wage determined by the Department of Labor under the circumstances alleged here, appellants’ allegation that USSI required them to sign an employment agreement contrary to federal law adequately stated a violation of section 432.5.
Both trial courts concluded that despite the sufficiency of the allegations demonstrating a violation of section 432.5, such a violation could not form the basis of a claim under section 2699. They reasoned that because section 2699 permits the enforcement of “any provision of this code that provides for a civil penalty to be assessed and collected,” the absence of a civil penalty provision in section 432.5 removed that statute from the purview of section 2699. (§ 2699, subd. (a).) But section 2699, subdivision (f), expressly specifies a penalty for statutes, such as section 432.5, that do not otherwise provide for one: “For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows: [¶] (1) If, at the time of the alleged violation, the person does not employ one or more employees, the civil penalty is five hundred dollars ($500). [¶] (2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.” (§ 2699, subd. (f); see also Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 375 [“For violations of ‘all provisions of [the Labor Code] except those for which a civil penalty is specifically provided,’ the Act establishes a default penalty and a private right of action for an aggrieved employee to bring a civil action to enforce those provisions, subject to the procedures in section 2699.3”].)
Equally as significant, that a violation of section 432.5 may form the basis of a claim under section 2699 is codified in section 2699.5. Section 2699 allows an aggrieved employee to bring a civil action “pursuant to the procedures specified in Section 2699.3.” (§ 2699, subd. (a).) In turn, section 2699.3 specifies the procedural requirements that an employee must satisfy when pursuing a civil action under “Section 2699 alleging a violation of any provision listed in Section 2699.5 . . . .” (§ 2699.3, subd. (a).) Section 432.5 is one of the statutory provisions listed in section 2699.5. (§ 2699.5 [“The provisions of subdivision (a) of Section 2699.3 shall apply to any alleged violation of the following provisions: . . . Section . . . 432.5”].)
Thus, according to the relevant statutory scheme, section 2699, subdivision (f) establishes a penalty provision for a violation of section 432.5, and section 2699.5 specifies that a violation of section 432.5 may form the basis for a claim under section 2699. The trial courts erred in ruling that appellants’ allegations setting forth a violation of section 432.5 were insufficient to state a claim under section 2699.
II. Appellants Adequately Alleged Compliance with Labor Code Section 2699.3.
Although the trial court ruling on the SACC concluded that it must accept as true appellant’s allegations that she complied with the notice procedures required by section 2699.3, the trial court ruling on the TACC found that “[t]he notice is inadequate because it does not set forth any provision of the Labor Code which actually would be violated by not paying a prevailing wage.”
Before an employee may commence a civil action under section 2699 that alleges a violation of a code provision listed in section 2699.5—which includes section 432.5—certain requirements must be met: “(1) The aggrieved employee or representative shall give written notice by certified mail to the Labor and Workforce Development Agency and the employer of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” (§ 2699.3, subd. (a)(1).) Thereafter, the LWDA is required to notify the employee whether it intends to investigate the alleged violation. (§ 2699.3, subd. (a)(2).) Upon receipt of a notice that the LWDA does not intend to investigate, or the expiration of 33 days from the date of the employee’s notice, the employee may commence a civil action. (Ibid.)
Relevant to this statutory requirement, appellants each alleged that “she provided written notice by certified mail to the Labor and Workforce Development Agency (‘LWDA’) and CROSS-DEFENDANTS of the violations of the California Labor Code §§ 432.5 and 1197 . . . .” They further alleged that “[o]n or about March 10, 2006, the LWDA sent CROSS-COMPLAINANT a letter indicating that it did not intend to investigate the allegations made in CROSS-COMPLAINANT’s written notice.” Appellants alleged that as a result of these actions, they had exhausted all administrative remedies required by statute.
In connection with its demurrers, USSI sought judicial notice of the letters that appellants sent to both it and the LWDA, which stated in relevant part that appellants were “investigating a potential class action lawsuit on behalf of current and former employees of USSI who worked in California pursuant to employment agreements with illegal terms and conditions in violation of Labor Code Section 432.5 and who worked for less than the mandated prevailing wages.” The letter demanded that USSI end certain employment practices, including a request “[t]hat USSI agrees to end its practice and scheme of forcing prospective employees to sign employment contracts containing agreement to perform work for less than the mandated prevailing wage for nurses in Southern California.” A cover letter provided to both the LWDA and USSI stated that the demand letter was intended to serve as the notice required by section 2699.3.
We fail to see how appellants’ allegations, coupled with the judicially-noticed letters, fell short of the requirements of section 2699.3. Appellants apprised USSI and the LWDA of both the specific provision of the Labor Code allegedly violated (section 432.5) and the facts and theories supporting the alleged violation (the requirement that employees contract to receive less than the prevailing wage). Addressing the claims statutes applicable to claims against public entities—which likewise require plaintiffs to provide notice before filing suit—the court in City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, explained that “the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” Elaborating on the adequacy of the notice that must be provided, the court in Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447, stated: “The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ [Citation.] . . . . Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint. [Citation.]”
Here, appellants alleged that they provided notice to USSI and the LWDA in accordance with section 2699.3 and that their notice enabled the LWDA to make a determination not to investigate the matter. These allegations undermine USSI’s reliance on Caliber Bodyworks, Inc. v. Superior Court, supra, 134 Cal.App.4th at page 381, where the court ruled that the plaintiffs’ failure to plead compliance with section 2699.3 was fatal to their claims for civil penalties based on violations of the Labor Code provisions specified in section 2699.5. Furthermore, the judicially-noticed letters established that appellants complied with section 2699.3 by providing the statutorily-required information. Under these circumstances, it was error to sustain the demurrer to the first cause of action in the TACC on the ground of lack of compliance with section 2699.3.
III. Appellants Did Not Need to Comply with Code of Civil Procedure Section 382 to Bring a Claim Under Labor Code Section 2699.
The final basis on which the trial court sustained the demurrer without leave to amend as to the TACC was that appellant Sinolinding had failed to comply with the class certification procedures outlined in Code of Civil Procedure section 382. The trial court stated: “Nothing in section 2699.3 purports to do away with class procedures required by [Code of Civil Procedure] section 382, nor could it. Due process would prevent a penalty from being imposed in favor of an absent party without compliance with class notice procedures.” Although USSI raised this argument in its demurrer to the SACC, the trial court’s order sustaining the demurrer did not address it.
Code of Civil Procedure section 382 provides: “If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when 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.” Pursuant to this provision, “‘[t]he party seeking certification has the burden to establish the existence of both an ascertainable class and a well-defined community of interest among class members. [Citations.]’” (Dunbar v. Albertson’s, Inc. (2006) 141 Cal.App.4th 1422, 1430.)
Currently, no case law addresses the question of whether compliance with Code of Civil Procedure section 382 is a necessary prerequisite for the maintenance of an action under section 2699. On the basis of statutory language alone, however, we conclude that an employee bringing an action under section 2699 need not satisfy the procedural requirements for bringing a class action. Section 2699 provides that “[n]otwithstanding any other provision of law,” an aggrieved employee may bring a civil action to recover civil penalties “on behalf of himself or herself and other current and former employees pursuant to the procedures specified in Section 2699.3.” (§ 2699, subd. (a).) The requirements outlined in section 2699.3 make no explicit or implicit reference to the class action requirements embodied in Code of Civil Procedure section 382.
The California Supreme Court recently granted review in the only previously published case on the issue, Arias v. Superior Court, No. S155965 (rev. granted Oct. 10, 2007), which had held that an employee may bring an action under section 2699 without complying with the requirements necessary to bring a class action.
To construe these provisions, we apply well-settled principles of statutory construction: “‘In construing statutes, we must determine and effectuate legislative intent.’ [Citation.] ‘To ascertain intent, we look first to the words of the statutes’ [citation], ‘giving them their usual and ordinary meaning’ [citation]. If there is no ambiguity in the language of the statute, ‘then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.’ [Citation.] ‘Where the statute is clear, courts will not “interpret away clear language in favor of an ambiguity that does not exist.” [Citation.]’ [Citation.]” (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.) Moreover, “[s]tatutes should be interpreted with reference to the whole system of law of which they are a part [citation], and sections relating to the same subject must be read together and harmonized [citation].” (Valley Vista Services, Inc. v. City of Monterey Park (2004) 118 Cal.App.4th 881, 889.)
Applying these principles, we find no indication in the statutory language that the Legislature intended to require employees filing an action under section 2699 to comply with Code of Civil Procedure section 382. The Legislature expressly intended section 2699 to apply “[n]otwithstanding any other provision of law . . . .” (§ 2699, subd. (a).) In Caliber Bodyworks, Inc. v. Superior Court, supra, 134 Cal.App.4th 365, the court found significant the Legislature’s use of that phrase in section 2699, explaining: “The statutory phrase ‘notwithstanding any other law’ has been called a ‘“term of art”’ [citation] that declares the legislative intent to override all contrary law. (People v. Tillman (1999) 73 Cal.App.4th 771, 784–785; see also In re Marriage of Cutler (2000) 79 Cal.App.4th 460, 475 [‘“notwithstanding any other provision of law”’ ‘“signals a broad application overriding all other code sections”’].)” (Caliber Bodyworks, Inc. v. Superior Court, supra, at p. 383, fn. 17.) The Legislature’s expression of intent to override other provisions, coupled with its omission of any mention of Code of Civil Procedure section 382, leads to the inescapable conclusion that it did not intend for class action procedures to apply to actions under section 2699.
We find no basis for concluding, as the trial court did, that permitting an employee to maintain a representative action without satisfying the class action requirements violates due process. Rather, the language of section 2699, which permits an aggrieved employee to bring an action “on behalf of himself or herself and other current or former employees,” is similar to former Business and Professions Code section 17204, which permitted a person to bring a representative action “for the interests of itself, its members or the general public.” (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 126, fn. 10 [“We use the term ‘representative action’ to refer to a UCL action that is not certified as a class action in which a private person is the plaintiff and seeks disgorgement and/or restitution on behalf of persons other than or in addition to the plaintiff”].) Notably, the Legislature amended Business and Professions Code section 17203 in 2004 to require that representative actions satisfy the same procedural requirements as class actions; the statute currently provides that “[a]ny 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 . . . .” (Bus. & Prof. Code, § 17203.) The specific inclusion in Business and Professions Code section 17203 of a requirement to comply with Code of Civil Procedure section 382 and the concomitant omission of any such requirement in section 2699.3 are further indications that the Legislature did not intend that a representative action under section 2699 comply with class action procedures. (See, e.g., Tracy A. v. Superior Court (2004) 117 Cal.App.4th 1309, 1316, fn. 6 [“‘Legislative enactments must be construed in accordance with the language of the ordinance given its ordinary meaning [citation], and in construing such language the courts may not insert any omitted provision (Code of Civ. Proc., § 1858)’”]; see also Campbell v. Zolin (1995) 33 Cal.App.4th 489, 497 [“Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning”].)
Finally, the purpose of section 2699 is to permit an aggrieved employee to bring an enforcement action in the role of a private attorney general to collect civil penalties from employers who violate specified labor law provisions. (Dunlap v. Superior Court (2006) 142 Cal.App.4th 330, 337 [“the PAG Act empowers or deputizes an aggrieved employee to sue for civil penalties ‘on behalf of himself or herself and other current or former employees’ (§ 2699, subd. (a)), as an alternative to enforcement by the LWDA”].) Section 2699, subdivision (i) provides that 75 percent of the recovered penalties are distributed to the LWDA and the remaining 25 percent are allocated to the aggrieved employees. Moreover, section 2699 does not provide an exclusive remedy, and an employee bringing an enforcement action is not foreclosed from bringing any other claim he may have available under law. (§ 2699, subd. (g)(1).) Thus, an enforcement action under section 2699 is distinct from a typical class action, which generally has restitution as its primary object. (Corbett v. Superior Court (2002) 101 Cal.App.4th 649, 683.)
Accordingly, we find no reason to impose a procedural requirement that neither appears in the statutory language nor is supported by the purpose of section 2699. Accordingly, it was error for the trial court to sustain the demurrer without leave to amend to the TACC on the ground that appellant Sinolinding had not complied with Code of Civil Procedure section 382.
DISPOSITION
The petition for writ of mandate is granted. The orders sustaining the demurrers without leave to amend are reversed and the matters are remanded. Appellants to recover their costs.
We concur: ASHMANN-GERST, J., CHAVEZ, J.