Brown v. Ralphs Grocery Co., B278911

CourtCalifornia Court of Appeals
Writing for the CourtSEIGLE, J.
Citation28 Cal.App.5th 824,239 Cal.Rptr.3d 519
Parties Terri BROWN, Plaintiff and Appellant, v. RALPHS GROCERY COMPANY et al., Defendants and Respondents.
Decision Date31 October 2018
Docket NumberB278911

28 Cal.App.5th 824
239 Cal.Rptr.3d 519

Terri BROWN, Plaintiff and Appellant,
v.
RALPHS GROCERY COMPANY et al., Defendants and Respondents.

B278911

Court of Appeal, Second District, Division 5, California.

Filed October 31, 2018


Capstone Law, Glenn A. Danas, Melissa Grant, Liana Carter, Los Angeles and Arnab Banerjee, for Plaintiff and Appellant.

Reed Smith, Linda S. Husar, San Diego, Mara D. Curtis and Kasey J. Curtis, Los Angeles, for Defendants and Respondents.

SEIGLE, J.*

28 Cal.App.5th 829

I. INTRODUCTION

Plaintiff Terri Brown brought a representative action against her employer, Ralphs Grocery Company (Ralphs), and its parent company, The Kroger Co. (collectively defendants), under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698, et seq. ), alleging wage and hour violations. In 2009, plaintiff filed with the California Labor and Workforce Development Agency (LWDA) a notice of alleged Labor Code violations, as required under Labor Code section 2699.3, subdivision (a) as a condition of filing a PAGA action, and filed her complaint in this action alleging PAGA claims. Thereafter, plaintiff filed a second amended complaint alleging new violations of different Labor Code provisions not specified in her 2009 notice.

Defendants moved for judgment on the pleadings arguing the 2009 notice was deficient,

239 Cal.Rptr.3d 523

which the trial court granted with leave to amend the notice and the complaint. In March 2016, plaintiff amended her notice and filed a third amended complaint.

Defendants demurred to the third amended complaint, which was sustained by the trial court. The trial court held that the PAGA claims were barred because the 2009 notice was deficient and the 2016 notice and third amended complaint were filed more than five years after the expiration of the statute of limitations. The trial court rejected plaintiff's contention that equitable tolling saved the PAGA claims.

We conclude part of plaintiff's 2009 notice was adequate and satisfied the PAGA notice requirements under Labor Code section 2699.3, subdivision (a), and part was not and did not. We also conclude plaintiff's later-added PAGA claims for violations of Labor Code provisions not alleged in the 2009 notice did not timely comply with section 2699.3's notice requirements and are time-barred. Furthermore, the deficient claims and later-added claims are not saved by equitable tolling, the relation back doctrine, judicial estoppel, or waiver, except to the extent the later-added claims may relate back to the PAGA claim adequately and timely noticed in 2009. We reverse the judgment and remand with directions.

28 Cal.App.5th 830

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was employed by Ralphs as an hourly, nonexempt security guard at two distribution centers from October 2005 to December 2009. She worked eight hours or more a day and 40 hours or more per week.

On October 12, 2009, she sent two two-page letters to the LWDA and defendants alleging violations of Labor Code 1 sections 204, 226, subdivision (a), 226.7, and 512 (2009 Notice). The 2009 Notice identified defendants as her employer, defendants' addresses, and plaintiff's job as an hourly-paid security guard in Los Angeles County. The 2009 Notice alleged defendants had violated sections 226.7 and 512 because "[plaintiff] and other aggrieved employees did not take all meal and rest periods and were not properly compensated for missed meal and rest periods." The 2009 Notice alleged defendants had violated section 204 because they "failed to pay [plaintiff] and other aggrieved employees all wages due to them within any time period specified by California Labor Code section 204." And it alleged defendants had violated section 226, subdivision (a) by not providing "[plaintiff] and other aggrieved employees with proper itemized wage statements" because, among other things, the wage statements failed "to include the name and address of the legal entity that is the employer."

Two days later on October 14, 2009, plaintiff filed a class action and PAGA representative action against defendants. The complaint alleged defendants violated sections 226.7 and 512 by requiring plaintiff to work through meal and rest periods without compensation, violated section 204 by failing to pay plaintiff the full wages due within the required time period, and violated section 226, subdivision (a) by failing to provide complete and accurate wage statements, including by not listing the legal name and address of the employer. In addition, plaintiff advanced a Business and Professions Code section 17200 cause of action.

On November 30, 2009, plaintiff filed a first amended complaint alleging the same causes of action and adding an allegation

239 Cal.Rptr.3d 524

that she had satisfied the administrative prerequisites under section 2699.3, subdivision (a) by sending the 2009 Notice. She alleged that more than 33 days had passed since she sent the 2009 Notice and the LWDA had not provided any response. On December 8, 2009, the LWDA advised plaintiff and defendants that it had received the 2009 Notice and did not intend to investigate the allegations.

On approximately December 11, 2009, plaintiff's employment with defendants was terminated.

28 Cal.App.5th 831

Rather than answer or demur, on January 6, 2010, Ralphs filed a petition to compel arbitration. The trial court concluded the class action and PAGA waivers were substantively unconscionable and denied the petition. On July 12, 2011, we reversed the trial court's ruling invalidating the class action waiver because plaintiff's opposition to the petition had not made the necessary factual showing under the test in Gentry v. Superior Court (2007) 42 Cal.4th 443, 446, 64 Cal.Rptr.3d 773, 165 P.3d 556. ( Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 497, 128 Cal.Rptr.3d 854.) But we affirmed the ruling that the PAGA waiver was substantively unconscionable and held PAGA was not preempted by the Federal Arbitration Act. ( 197 Cal.App.4th at pp. 500-503, 128 Cal.Rptr.3d 854.) We reversed and remanded for a determination whether the PAGA waiver provision could be severed from the arbitration agreement. ( Id. at p. 504, 128 Cal.Rptr.3d 854.) Defendants' petition for review by our Supreme Court was denied on October 19, 2011. ( Id. at p. 510, 128 Cal.Rptr.3d 854.) Defendants' petition for certiorari to the United States Supreme Court was denied on April 16, 2012. ( Ralphs Grocery Co. v. Brown (2012) 566 U.S. 937, 132 S.Ct. 1910, 182 L.Ed.2d 771.)

On May 2, 2012, the trial court severed the PAGA waiver provision from the arbitration agreement, granted Ralphs's request to arbitrate the non-PAGA claims on an individual basis, and stayed the PAGA claims until completion of the arbitration. Shortly thereafter, plaintiff decided not to pursue her individual claims in arbitration and instead to amend her complaint to drop her individual claims and proceed only on her PAGA claims.

On September 21, 2012, plaintiff moved for leave to file her second amended complaint. The proposed second amended complaint no longer alleged class and individual causes of action. It included the PAGA claims for violations of sections 204, 226, subdivision (a), 226.7, and 512 from the first amended complaint, and it added new PAGA claims. The new claims alleged violations of sections 201, 202, and 203 by not paying plaintiff and other aggrieved employees within the statutory time period after terminating their employment, and violations of section 1198 by failing to provide meal and rest periods, timely paid wages, and accurate employment records. The proposed second amended complaint also sought civil penalties under section 558 for the Labor Code violations.

Defendants filed an opposition to plaintiff's motion on procedural grounds. They argued the proper course was to allow plaintiff to dismiss the non-PAGA causes of action from the first amended complaint and lift the stay on the PAGA claims. Defendants did not challenge the substance of the proposed second amended complaint and did not argue that the PAGA claims were based on inadequate notice or time-barred.

28 Cal.App.5th 832

On October 16, 2012, the trial court granted plaintiff's motion for leave to file the second amended complaint "on the grounds that Defendants essentially do not oppose this motion and will not suffer any prejudice by the proposed amendments."

239 Cal.Rptr.3d 525

Defendants were ordered to file their answer by November 15, 2012.

Defendants elected instead to renew their petition to compel arbitration pursuant to Code of Civil Procedure section 1008, subdivision (b) based on new decisions from various California and federal courts. The trial court denied the motion, and we dismissed defendants' appeal because an order denying a renewed motion under Code of Civil Procedure section 1008, subdivision (b) is not appealable. ( Brown v. Ralphs Grocery Co. (Mar. 6, 2014,...

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45 practice notes
  • Senne v. Kansas City Royals Baseball Corp., 14-cv-00608-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2022
    ...that related to the alleged Labor Code violations.” Id. (citing Cal. Lab. Code § 2699.3(a)(1)(A); Brown v. Ralphs Grocery Co., 28 Cal.App. 5th 824, 837-38 (2018); Mitchell v. Corelogic, Inc., No. SA CV 17-2274-DOC (DFMx), 2019 WL 7172978, at *7 (C.D. Cal. Nov. 20, 2019); 174 Alcantar v. Hob......
  • Amaro v. Anaheim Arena Mgmt., LLC, G058371
    • United States
    • California Court of Appeals
    • September 28, 2021
    ...class members' PAGA claims beyond the one-year limitations period of her own PAGA claim. (See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839, 239 Cal.Rptr.3d 519 ( Brown ) [establishing one-year limitations period for PAGA claims].) The settlement releases class members' PAGA cl......
  • Esparza v. Safeway, Inc., B287927
    • United States
    • California Court of Appeals
    • June 10, 2019
    ...of Labor Code section 226.7 ].) A PAGA action is subject to a one-year statute of limitations. ( Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839, 239 Cal.Rptr.3d 519 ( Brown ), citing Code Civ. Proc., § 340, subd. (a).) Generally, a statute of limitations begins to run when a cau......
  • Hutcheson v. Superior Court, A159861
    • United States
    • California Court of Appeals
    • February 7, 2022
    ...875 ( Esparza ).) Finally, a PAGA action is subject to a one-year statute of limitations. ( Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 239 Cal.Rptr.3d 519 ( Brown ), citing Code Civ. Proc. § 340, subd. (a).) The 65-day period following notice to the LWDA and employer is "not cou......
  • Request a trial to view additional results
43 cases
  • Senne v. Kansas City Royals Baseball Corp., 14-cv-00608-JCS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 10, 2022
    ...that related to the alleged Labor Code violations.” Id. (citing Cal. Lab. Code § 2699.3(a)(1)(A); Brown v. Ralphs Grocery Co., 28 Cal.App. 5th 824, 837-38 (2018); Mitchell v. Corelogic, Inc., No. SA CV 17-2274-DOC (DFMx), 2019 WL 7172978, at *7 (C.D. Cal. Nov. 20, 2019); 174 Alcantar v. Hob......
  • Amaro v. Anaheim Arena Mgmt., LLC, G058371
    • United States
    • California Court of Appeals
    • September 28, 2021
    ...class members' PAGA claims beyond the one-year limitations period of her own PAGA claim. (See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839, 239 Cal.Rptr.3d 519 ( Brown ) [establishing one-year limitations period for PAGA claims].) The settlement releases class members' PAGA cl......
  • Esparza v. Safeway, Inc., B287927
    • United States
    • California Court of Appeals
    • June 10, 2019
    ...of Labor Code section 226.7 ].) A PAGA action is subject to a one-year statute of limitations. ( Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839, 239 Cal.Rptr.3d 519 ( Brown ), citing Code Civ. Proc., § 340, subd. (a).) Generally, a statute of limitations begins to run when a cau......
  • Hutcheson v. Superior Court, A159861
    • United States
    • California Court of Appeals
    • February 7, 2022
    ...875 ( Esparza ).) Finally, a PAGA action is subject to a one-year statute of limitations. ( Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 239 Cal.Rptr.3d 519 ( Brown ), citing Code Civ. Proc. § 340, subd. (a).) The 65-day period following notice to the LWDA and employer is "not cou......
  • Request a trial to view additional results
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