Friday, November 21, 2025
Page 3
Court of Appeal:
Early Filing in PAGA Action Did Not Gut Preclusive Effect
Opinion Says Representative Plaintiff’s Filing of Amended Pleading Before End of Time Frame for Agency to Decide Whether to Pursue New Claim Did Not Create Loophole for Other Party to Litigate Same Issue
By Kimber Cooley, associate editor
Div. Eight of this district’s Court of Appeal has held that a motion for judgment on the pleadings was properly granted in a representative wage-and-hour action after an earlier-filed matter alleging the same wage and hour claims had settled, rejecting the assertion that the settling plaintiff’s failure to comply with a 65-day waiting period before filing an amended pleading gutted the preclusive effect of the earlier judgment as to the newly filed cause of action.
At issue is Labor Code §2699.3, which provides that an aggrieved employee or representative may commence a lawsuit to recover civil penalties on behalf of the State of California for wage and hour violations, under the Private Attorneys General Act (“PAGA”), if the Labor and Workforce Development Agency does not assert the right to pursue the matter within 65 calendar days of receiving notice of the violations.
Under PAGA, civil penalties recovered are allocated such that 65% of the funds go to the state and 35% to affected employees. Successful plaintiffs are also authorized to request attorney fees.
The question arose after Lauren Brown filed a representative PAGA complaint against her former employer, Dave & Buster’s of California Inc., as well as a related entity in June 2019, alleging that the company failed to provide meal and rest periods, vacation pay, and wage statements. Brown worked for the arcade’s Westchester location from November 2016 to April 2018.
Same Representative Claims
After the defendants filed a demurrer to stay the action on the ground that two previously filed actions had asserted the same representative causes of action against the employer, Los Angeles Superior Court Judge Rupert Byrdsong sustained the filing in October 2019.
Following a settlement in one of the other matters on Nov. 4, 2022, the defendants filed a motion for judgment on the pleadings as to Brown’s complaint, arguing that claim preclusion barred Brown’s lawsuit in its entirety. Brown contended that her claim relating to vacation pay survived because the earlier plaintiff, Jessica Andrade, had asserted the leave violations in an amended pleading that was filed a mere 35 days after giving notice to the labor agency.
Birdsong sided with the defendants and granted their request. Judgment in favor of the defendants was entered on June 14 of last year.
Justice John Shepard Wiley Jr. authored Thursday’s opinion, joined in by Presiding Justice Maria E. Stratton and Justice Victor Viramontes, affirming the judgment. Wiley said that “only one issue is before us: did Andrade’s failure to adhere strictly to the 65-day waiting period for her amended claims defeat Buster’s claim preclusion argument?”
Concluding that the answer to the question was “no,” he said it was not clear whether the notice requirements even apply to amended pleadings and remarked:
“Andrade’s failure to wait 65 days was a harmless defect.”
Wiley noted that claim preclusion bars a new lawsuit if an earlier case had the same cause of action, involved the same parties, and resulted in a final judgment on the merits. Brown cited the 2023 decision in LaCour v. Marshalls of California, in which Div. Four of the First District Court of Appeal addressed the application of the doctrine to PAGA actions.
In that case, the court found that a prior PAGA judgment did not bar the later action because the employee in the earlier suit only notified the agency of a failure to compensate for off-the-clock work and did not mention “the raft of additional wage-and-hour violations.” As such, the prior plaintiff was not “authorized” to assert the same claims at issue in LaCour.
Rejecting Brown’s interpretation of the case “to mean Andrade…was [similarly] never authorized to pursue the additional vacation pay claim…in her amended complaint” due to her failure to comply with §2699.3, Wiley said:
“The statute itself and case law are silent as to whether the pre-filing notice requirements apply to Andrade’s amended notice. Regardless, Andrade substantially fulfilled the purpose of the PAGA pre-filing notice requirement in her amended notice.”
Harmless Defect
He opined that the failure to wait 65 days was a “harmless defect” because “[t]he Agency accepted Andrade’s global settlement with Buster’s after it had an opportunity to object.”
The jurist continued:
“The Supreme Court has firmly rejected the efforts of PAGA plaintiffs ‘to file objections to the settlement reached by another aggrieved employee representing the same state interest and also acting on the state’s behalf.’…It reasoned that opening the door to these objections was contrary to PAGA’s text, statutory scheme, and legislative history….Andrade’s settlement fully encompassed and released Brown’s claims as to all Buster’s entities, thus satisfying all elements of claim preclusion….The trial court was right to grant Buster’s motion.”
The case is Brown v. Dave & Buster’s of California Inc., 2025 S.O.S. 3327.
Acting for Brown were Thomas A. Segal and Shaun Setareh of the Beverly Hills firm Setareh Law Group. Alaya Ben Meyers and Gayle Gonda of the Irvine office of Littler Mendelson P.C. represented the defendants.
Copyright 2025, Metropolitan News Company