Barragan vs Heritage Health Care et al

On March 24, 2026, the Plaintiff filed an opposition to the demurrer, opposition to Defendants’

request for judicial notice, their own request for judicial notice and a declaration of Sareen K.

Klakh, Esq. Plaintiff also filed an opposition to the motion to strike with all the above and

evidentiary objections.

On May 1, 2026, Defendant filed replies and multiple objections.

Analysis

Request for Judicial Notice. In support of the Demurrer, the Defendants seek to have the Court

take judicial notice of the following because they are records of the Court.

1. The December 24, 2024, Notice Letter of on Behalf of Jorge Nava Gomez and Aggrieved

Employees Under California Labor section 2699.3, LWDA-CM-1069251-24, a true and correct

copy of which is attached hereto as Exhibit A;

2. The September 26, 2024, Notice Letter of on Behalf of Michelle Barragan and Aggrieved

Employees Under California Labor section 2699.3, LWDA-CM-1052944-24, a true and correct

copy of which is attached hereto as Exhibit B;

3. The February 13, 2025, Letter from the State of California Labor & Workforce Development

Agency to Bibiyan Law Group re Notice Directing Submission of Amended PAGA Notices, a true

and correct copy of which is attached hereto as Exhibit C.

Plaintiff in opposition, request judicial notice of the following:

Exhibit A: Court Order on Motion for Judgement on the Pleadings in Sara Jara v. Regus

Management Group, LLC et. al., Superior Court of California County of Sonoma, Case No.

24CV01857

Exhibit B: Court Order Granting in Part and Denying In Part Defendants’ Demurrer to

Plaintiff’s Complaint in James Caramazza v. Greystar Management Services LP et. al., Superior

Court of California County of San Francisco, Case No. CGC-20-584345

Exhibit C: Minute Order Ruling on Demurrer and Motion to Strike in Larry Beneviste v. Gelson’s

Markets et. al., Superior Court of California County of Ventura, Case No. 56-2022-00570409-

CU-OE-VTA

“Strictly speaking, a court takes judicial notice of facts, not documents.” (Fontenot v. Wells Fargo

Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on another ground in Yvanova v. New

Century Mortg. Corp. (2016) 62 Cal.4th 919, 939, fn. 13.) “When a court is asked to take judicial

notice of a document, the propriety of the court's action depends upon the nature of the facts of

which the court takes notice from the document.” (Ibid.) In the case of court records, not all

matters contained therein (e.g., pleadings, affidavits, etc.) are indisputably true. While the

existence of any document in a court file may be judicially noticed, the truth of matters asserted

in such documents – including the factual findings of the judge who was sitting as the trier of fact

– is not necessarily subject to judicial notice unless the document is an order, statement of

decision, or judgment. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; Garcia v.

Sterling (1985) 176 Cal.App.3d 17, 22.)

Here, the Court will take judicial notice of the PAGA letter to the LWDA in this matter pursuant to

Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754. Additionally, the Plaintiff

does not object and references it in the SAC and in Mrs. Khakh’s declaration. However, all of the

other requests from Defendant and Plaintiff are irrelevant in this proceeding.

The Court takes judicial notice of Defendant Ex. 2 only.

Objection. Plaintiff objects to the request for judicial notice in Exhibit A and C, since the

documents are not necessary, helpful or relevant to the instant action. Defendant objects to

Plaintiff’s request as irrelevant. The Court agrees with both. Therefore, the Court sustains

Plaintiff and Defendants’ objections to the request for judicial notice for the reasons stated

above. Defendant additionally objects to the declaration of Sareen Khakh, Esq. The declaration

has no place in a demurrer. Thus, the Court sustains those objections.

Timing. While Code Civ. Proc., §430.40 states a demurrer should be filed within 30 days, the

SAC in this matter was served electronically on November 10, 2025. Since the document was

served electronically, Defendant had two extra days to file. (Code Civ. Proc., §1010.6.) Hence,

the Court finds the demurrer was timely filed on December 12, 2025.

Analysis. Both the demurrer and the motion to strike concern the PAGA notice provided in this

action. Defendant claims that since Plaintiff’s firm has notice from the LWDA (RJN, Ex. 3) in

other cases stating that its PAGA notice was deficient, and that this PAGA notice is similar to

one of the cases on the list, the PAGA cause of action should be stricken/subject to demurrer

since it too general. However, while not taking judicial notice of the Letter from the LWDA, and

as Plaintiff points out, this case is not one of the 137 cases the LWDA found the notice deficient.

Defendant claims this notice is similar to one of the cases on the list, Gruma Corporation. (RJN,

Ex. 1.)

PAGA allows “aggrieved employees, acting as private attorneys general, to recover civil

penalties for Labor Code violations, with the understanding that labor law enforcement agencies

were to retain primacy over private enforcement efforts.” (Thurman v. Bayshore Transit Mgmt.,

Inc. (2012) 203 Cal.App.4th 1112, 1125; see also, Iskanian v. CLS Transportation Los Angeles,

LLC (2014) 59 Cal.4th 348, 379-380.) Section 2699, subdivision (a) provides, in relevant part:

“[A]ny provision of this code that provides for a civil penalty to be assessed and collected by the

Labor and Workforce Development Agency ... 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.” (Lab. Code, § 2699, subd. (a).) Subdivision (c) defines an “aggrieved employee” as

“any person who was employed by the alleged violator and against whom one or more the

alleged violations was committed.” (Lab. Code, § 2699, subd. (c).)

A claim alleging a violation of any provision listed in Section 2699.5 may not be commenced (or

a pending action amended to include a PAGA claim) until an aggrieved employee gives written

notice by certified mail to the employer and by online filing with the LWDA specifying the Labor

Code provisions violated, "including the facts and theories to support the alleged violation." (Lab.

Code, § 2699.3(a)(1); CaliberBodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365,

370). The LWDA must notify the employer and the aggrieved employee that is does not intend to

investigate the alleged violation within 60 days. When the employee receives the notice, or if the

agency provides no notice within 65 calendar days, the employee may bring a civil action under

Labor Code section 2699. The statute further provides that if the LWDA intends to investigate, it

must notify the employer and the aggrieved employee of its decision within 33 days of the

postmark date of the notice received, and then LWDA has 120 calendar days to conduct the

investigation and issue a citation, or notify the employer and employee that no citation will be

issued, at which time, the employee may file a civil action. (Lab. Code, § 2699.3.)

Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 59 states:

Before bringing a PAGA action, an aggrieved employee must give the LWDA written notice of

the facts and theories supporting the Labor Code violations alleged. (Lab. Code, §§ 2699.3,

subds. (a)(1)(A), (b)(1) & (c)(1)(A) [civil action “shall commence only after” aggrieved employee

gives notice].) As California courts have repeatedly recognized, PAGA's prefiling notice

requirement is a mandatory precondition to bringing a PAGA claim. (E.g., Khan v. Dunn-

Edwards Corp. (2018) 19 Cal.App.5th 804, 808–810 [228 Cal. Rptr. 3d 90] [affirming summary

judgment against PAGA plaintiff due to noncompliance with the prefiling notice requirement];

Williams v. Superior Court (2017) 3 Cal.5th 531, 545 [220 Cal. Rptr. 3d 472, 398 P.3d 69]

(Williams) [PAGA plaintiff must provide prefiling notice as a “condition of suit”].) The employee

may bring a PAGA action only after the LWDA either fails to act within a specified time or notifies

the employee that the LWDA does not intend to take further action. (Lab. Code, § 2699.3, subd.

(a)(2)(A), (B); see also id., § 2699.5 [these procedures apply to alleged violations of Lab. Code,

§ 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 (Brown), citing Code Civ. Proc., § 340, subd. (a).)

Santos v. El Guapos Tacos, LLC (2021) 72 Cal.App.5th 363, 366-367 states:

Before bringing a PAGA claim, a plaintiff must comply with administrative procedures outlined in

Labor Code section 2699.3, requiring notice to the Labor and Workforce Development Agency

(LWDA) and allowing the employer an opportunity to cure unspecified violations not listed in

Labor Code section 2699.5. (Lab. Code, §§ 2699, subds. (a), (c), (g)(1), 2699.3.) “Our Supreme

Court has explained that: ‘[a]s a condition of suit, an aggrieved employee acting on behalf of the

state and other current or former employees must provide notice to the employer and the

responsible state agency “of the specific provisions of [the Labor Code] alleged to have been

violated, including the facts and theories to support the alleged violation.”’” (Khan, supra, 19

Cal.App.5th at p. 809.)

Hutcheson v. Superior Court (2022) 74 Cal.App.5th 932, 943 states:

Notice serves two purposes: it allows the LWDA “to decide whether to allocate scarce resources

to an investigation,” and it allows the employer to submit a response to the LWDA which can

inform the agency's decision. (Williams v. Superior Court, supra, 3 Cal.5th at p. 546, citing §

2699.3, subd. (a)(1)(B).)

There is no question that Plaintiff filed a PAGA Notice. Defendant just argues the notice is not

sufficient. In Brown v. Ralphs Grocery Co., supra, the appellate court discussed the notice

requirements of Section 2699.3, subdivision (a), in the context of PAGA claims and amended

PAGA claims alleged over a five-year period. Regarding the notice requirement, the Brown court

cited to the California Supreme Court case of Williams v. Superior Court (2017) 3 Cal.5th

531. Brown stated:

Plaintiff contends that the trial court erroneously concluded that the 2009 Notice was deficient

under section 2699.3, subdivision (a). In its decision granting defendants' motion for judgment on

the pleadings following the second amended complaint and its decision sustaining defendants'

demurrer to the third amended complaint, the trial court found the 2009 Notice deficient for two

reasons. The trial court concluded the notice did not sufficiently allege “facts and theories” to

support the violations claimed in the first amended complaint (i.e., violations of §§ 204, 226,

subd. (a), 226.7, and 512) and did not refer to violations of Labor Code statutes that plaintiff later

alleged in the second and third amended complaints (i.e., violations of §§ 201, 202, 203, 558,

1174, subd. (d), and 1198).5 We agree in part. After the trial court's rulings, our Supreme Court

issued its decision in Williams. The Supreme Court identified “the clear legislative purposes

[PAGA] was designed to serve,” namely “to advance the state's public policy of affording

employees workplaces free of Labor Code violations, notwithstanding the inability of state

agencies to monitor every employer or industry” and “to remediate present violations and deter

future ones.” (Williams, supra, 3 Cal.5th at p. 546.)

In the context of deciding whether a PAGA plaintiff must have “some modicum of substantial

proof before proceeding with discovery,” the Supreme Court addressed the PAGA notice

requirement: “Nothing in ... section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and

theories’ provided in support of ‘alleged’ violations must satisfy a particular threshold of

weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing.

(See Code Civ. Proc., § 128.7.) The evident purpose of the notice requirement is to afford the

relevant state agency, the [LWDA], the opportunity to decide whether to allocate scarce

resources to an investigation, a decision better made with knowledge of the allegations an

aggrieved employee is making and any basis for those allegations. Notice to the employer

serves the purpose of allowing the employer to submit a response to the agency (see [] §

2699.3, subd. (a)(1)(B)), again thereby promoting an informed agency decision as to whether to

allocate resources toward an investigation. Neither purpose depends on requiring employees to

submit only allegations that can already be backed by some particular quantum of admissible

proof.” (Williams, supra, 3 Cal.5th at pp. 545–546; see also Caliber, supra, 134 Cal.App.4th at p.

375 [notice provision intended to “‘allow[] the [LWDA] to act first on more “serious” violations

such as wage and hour violations and give employers an opportunity to cure less serious

violations’”].)

The Supreme Court in Williams recognized the distinction in the notice provision between the

alleged violation (i.e., “the allegations an aggrieved employee is making”) and the facts and

theories to support the alleged violation (i.e., “any basis for those allegations”). (Williams, supra,

3 Cal.5th at p. 546.) Federal court decisions also recognize that the notice provision requires

something more than bare allegations of a Labor Code violation. In Alcantar v. Hobart

Service (9th Cir. 2015) 800 F.3d 1047, the court held the plaintiff's notice was “a string of legal

conclusions with no factual allegations or theories of liability to support them.” (Id. at p.

1057.) The notice identified plaintiff's employer and stated the employer “‘(1) failed to pay wages

for all time worked; (2) failed to pay overtime wages for overtime worked; (3) failed to include the

extra compensation required by ... section 1194 in the regular rate of pay when computing

overtime compensation, thereby failing to pay Plaintiff and those who earned additional

compensation for all overtime wages due’”; and so on. (Ibid.) The court reasoned these bare

allegations were insufficient because they simply paraphrased the allegedly violated

statutes. (Ibid. [“The only facts or theories that could be read into this letter are those implied by

the claimed violations of specific sections of the California Labor Code”].) The notice did not

allow the LWDA “to intelligently assess the seriousness of the alleged violations” or give the

employer enough information “to determine what policies or practices are being complained of

so as to know whether to fold or fight.” (Ibid.; see, e.g., Green v. Bank of America, N.A. (9th Cir.

2015) 634 Fed. Appx. 188, 191 [notice stating “plaintiffs could use a seat in their position” was

sufficient for “simple seating claim”]; Moua v. International Business Machines Corp. (N.D. Cal.,

Jan. 31, 2012, No. 5:10-cv-01070 EJD) 2012 WL 370570, p. *5 [notice “identifies at least

some alleged facts and theories”]; Mireles v. Paragon Systems, Inc. (S.D. Cal., Feb. 9, 2016, No.

13-cv-00122-L-BGS) 2016 WL 7634439, p. *5 [notice reciting elements from the Lab. Code and

a wage order and alleging a violation of § 226.7 “fails to provide any facts, not implied by

reference to the Labor Code or Wage Order, as to how [the] defendant violated ... [s]ection §

226.7”]; Cardenas v. McLane Foodservices, Inc. (C.D. Cal. 2011) 796 F.Supp.2d 1246, 1260

[“the plain meaning” of the phrase “‘facts and theories to support [the] alleged violation’”

“suggests that [the p]laintiffs were required to put forward sufficient facts to support their claims

of labor violations”].) (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 835-837.)

Williams v. Superior Court (2017) 3 Cal.5th 531, 545-546 states:

Nothing in Labor Code section 2699.3, subdivision (a)(1)(A), indicates the “facts and theories”

provided in support of “alleged” violations must satisfy a particular threshold of weightiness,

beyond the requirements of nonfrivolousness generally applicable to any civil filing. (See Code

Civ. Proc., § 128.7.) The evident purpose of the notice requirement is to afford the relevant state

agency, the Labor and Workforce Development Agency, the opportunity to decide whether to

allocate scarce resources to an investigation, a decision better made with knowledge of the

allegations an aggrieved employee is making and any basis for those allegations. Notice to the

employer serves the purpose of allowing the employer to submit a response to the agency (see

Lab. Code, § 2699.3, subd. (a)(1)(B)), again thereby promoting an informed agency decision as

to whether to allocate resources toward an investigation. Neither purpose depends on requiring

employees to submit only allegations that can already be backed by some particular quantum of

admissible proof.

PAGA's standing provision similarly contains no evidence of a legislative intent to impose a

heightened preliminary proof requirement. Suit may be brought by any “aggrieved employee”

(Lab. Code, § 2699, subd. (a)); in turn, an “‘aggrieved employee’” is defined as “any person who

was employed by the alleged violator and against whom one or more of the alleged violations

was committed” (id., subd. (c), italics added). If the Legislature intended to demand more than

mere allegations as a condition to the filing of suit or preliminary discovery, it could have

specified as much. That it did not implies no such heightened requirement was intended.

Moreover, to insert such a requirement into PAGA would undercut the clear legislative purposes

the act was designed to serve. PAGA was intended to advance the state's public policy of

affording employees workplaces free of Labor Code violations, notwithstanding the inability of

state agencies to monitor every employer or industry. (Iskanian v. CLS Transportation Los

Angeles, LLC, supra, 59 Cal.4th at p. 379; Arias v. Superior Court (2009) 46 Cal.4th 969, 980–

981 [95 Cal. Rptr. 3d 588, 209 P.3d 923].) By expanding the universe of those who might

enforce the law, and the sanctions violators might be subject to, the Legislature sought to

remediate present violations and deter future ones. These purposes would be ill served by

presuming, notwithstanding the failure explicitly to so indicate in the text, that deputized

aggrieved employees must satisfy a PAGA-specific heightened proof standard at the threshold,

before discovery.

Other federal courts also found that the notice provision required something more than bare

allegations of a Labor Code violation or a paraphrase of the allegedly violated statutes. (See,

e.g., Alcantar v. Hobart Service (9th Cir. 2015) 800 F.3d 1047, 1057.) Notices that did not allow

the LWDA “to intelligently assess the seriousness of the alleged violations,” or give the employer

adequate information “to determine what policies or practices are being complained of so as to

know whether to fold or fight,” were found to be deficient. (Ibid.)

In Alcantar v. Hobart Service (9th Cir. 2015) 800 F.3d 1047 (Alcantar), the plaintiff’s PAGA

Notice stated he was a former employee of the defendant, and it alleged the defendant failed to

pay wages for all time worked, including overtime, to provide accurate wage statements, to

provide reimbursement for work related expenses, to provide off-duty meal periods and to pay

compensation for work without off-duty meal periods. The PAGA Notice also stated the sections

of the Labor Code the defendant was allegedly in violation. (Alcantar, supra, 800 F.3d at p.

1057.) The letter at issue specifically said:

Our offices have been retained by Joseluis Alcantara [sic] (Plaintiff). Plaintiff is a former

employee of ITW Food Equipment Group, LLC aka Hobart Service (Defendant). Plaintiff

contends that Defendant (1) failed to pay wages for all time worked; (2) failed to pay overtime

wages for overtime worked; (3) failed to include the extra compensation required by California

Labor Code section 1194 in the regular rate of pay when computing overtime compensation,

thereby failing to pay Plaintiff and those who earned additional compensation for all overtime

wages due; (4) failed to provide accurate wage statements to employees as required by

California Labor Code section 226; (5) failed to provide reimbursement for work related

expenses as required by Labor Code § 2802; and, (6) failed to provide off-duty meal periods and

to pay compensation for work without off-duty meal periods to its California employees in

violation of California Labor Code sections 226.7 and 512, and applicable Industrial Welfare

Commission orders. Said conduct, in addition to the forgoing, violated each Labor Code section

as set forth in California Labor Code section 2699.5.

The Alcantar Court held the letter was “a series of legal conclusions,” as “[t]he only facts or

theories that could be read into this letter are those implied by the claimed violations of specific

sections of the California Labor Code—that [the defendant] failed to pay wages for time worked,

failed to pay overtime wages for overtime worked, failed to include the extra compensation

required by § 1194 in the regular rate of pay when computing overtime compensation, and so

on. This is insufficient.” (Ibid.) Since the intent of section 2699.3 of the Labor Code was “to cure

perceived abuses of the Act,” the “[p]laintiff’s letter—a string of legal conclusions with no factual

allegations or theories of liability to support them—is insufficient to allow the Labor and

Workforce Development Agency to intelligently assess the seriousness of the alleged violations.

Neither does it provide sufficient information to permit the employer to determine what policies or

practices are being complained of so as to know whether to fold or fight.” (Ibid.)

The Alcantar Court pointed out that “Section 2699.3(a)(1) was adopted as part of an amendment

to PAGA, intended to cure perceived abuses of the Act. As the California Court of Appeal

observed:

The Senate floor analysis stated ‘[the amendment] improves [the Act] by allowing the Labor

Agency to act first on more serious violations such as wage and hour violations and give

employers an opportunity to cure less ‘serious’ violations. The bill protects businesses from

shakedown lawsuits, yet ensures that labor laws protecting California’s working men and women

are enforced—either through the Labor Agency or through the courts.’ (Dunlap v. Superior

Court (2006) 142 Cal.App.4th 330, 338-339 (quoting Calif. S. Rules Comm., Off. of S. Floor

Analyses, Bill Analysis for SB1809, at 5–6 (Aug. 27, 2004).)” (Alcantar v. Hobart Service (2015)

800 F.3d 1047, 1057.)

The Alcantar Court went on to state:

“Plaintiff’s letter - a string of legal conclusions with no factual allegations or theories of liability to

support them - is insufficient to allow the Labor and Workforce Development Agency to

intelligently assess the seriousness of the alleged violations. Neither does it provide sufficient

information to permit the employer to determine what policies or practices are being complained

of so as to know whether to fold or fight. Thus, we affirm. This conclusion is consistent with our

unpublished opinion in Archila v. KFC U.S. Properties, Inc. (2011) 420 Fed.Appx. 667, 669, in

which we affirmed a district court’s dismissal of a PAGA claim, observing that ‘none of the

materials Archila submitted to KFC or the LWDA contain ‘facts and theories’ to support his

allegations’ and the demand letter ‘merely lists several California Labor Code provisions Archila

alleges KFC violated and requests that KFC conduct an investigation.’ (See also Amey v.

Cinemark USA Inc., No. 13–CV–05669 (2015) 2015 WL 2251504, at *13-14; Soto v. Castlerock

Farming & Transp. Inc., No. CIV–F–09–0701 (2012) 2012 WL 1292519, at *7-8.)” (Alcantar v.

Hobart Service (2015) 800 F.3d 1047, 1057-1058.)

However, Santos v. El Guapos Tacos (2021) 72 Cal.App.5th 363, 371-372 states in part:

Defendants argue that because Labor Code section 2699.3 requires notice to the LWDA of “the

facts and theories to support the alleged violation” (Lab. Code, § 2699.3, subd. (a)(1)), a plaintiff

must identify “the group of other alleged employees that are also allegedly affected by the

claimed wrongs.” But the statute refers to a violation in the singular, and it does not require “the

‘facts and theories’ provided in support of ‘alleged’ violations [to] satisfy a particular threshold of

weightiness, beyond the requirements of nonfrivolousness generally applicable to any civil filing.”

(Williams v. Superior Court (2017) 3 Cal.5th 531, 545 [220 Cal. Rptr. 3d 472, 398 P.3d 69]

(Williams).) We do not see how a general reference to “a group of others” or to “other aggrieved

employees” is necessary to inform the LWDA or the employer of the representative nature of a

PAGA claim. While we appreciate that uniquely individual claims would not satisfy the statute, a

prefiling notice is not necessarily deficient merely because a plaintiff fails to state that she is

bringing her PAGA claim on behalf of herself and others. PAGA claims “‘function[] as a substitute

for an action brought by the government itself.’ [Citation.] Thus, PAGA claims, by their very

nature, are only brought on a representative basis.” (Mays v. Wal-Mart Stores, Inc. (C.D.Cal.

2019) 354 F.Supp.3d 1136, 1149; Huff, supra, 23 Cal.App.5th at p. 760 [“The Labor

Commissioner... has the authority to seek penalties for all known violations committed by an

employer—just as a PAGA plaintiff has that authority when standing in the shoes of the Labor

Commissioner”].) A PAGA judgment binds not only the named employee plaintiff but also any

aggrieved employee not a party to the proceeding. (Arias v. Superior Court (2009) 46 Cal.4th

969, 985 [95 Cal. Rptr. 3d 588, 209 P.3d 923].)

Because a PAGA claim as a matter of law is a claim “brought by an aggrieved employee on

behalf of himself or herself and other current or former employees” (Lab. Code, § 2699, subd.

(a)), and because plaintiffs' notice is not by nature or in context limited to an individual claim,

plaintiffs' failure to state “and other aggrieved employees” (or otherwise refer to an employee

other than themselves) does not expressly or impliedly limit the alleged violations to plaintiff

alone. Plaintiffs' letter to the LWDA stated that over the course of five years, two employees

were denied meal and rest breaks and not properly compensated for those violations, which

could be proven through defendants' time keeping records. The notice provided facts and

theories sufficient to put the LWDA on notice of specified Labor Code violations, which satisfies

the policy goal of Labor Code section 2699.3 subdivision (a). (See Williams, supra, 3 Cal.5th at

p. 548 [“[s]tate regulation of employee wages, hours and working conditions is remedial

legislation for the benefit of the state's workforce,” and “[h]urdles that impede the effective

prosecution of representative PAGA actions undermine the Legislature's objectives”].) The notice

allows the LWDA “‘to intelligently assess the seriousness’” of the violations claimed, and gives

defendants, who have access to their own timekeeping records, sufficient information “‘to

determine what policies or practices are being complained of so as to know whether to fold or

fight.’” (Brown, supra, 28 Cal.App.5th at p. 837.)

Rojas-Cifuentes v. Superior Court (2020) 58 Cal.App.5th 1051, 1060-1061, additionally states:

A complaint, as an analogue, is generally not deficient merely because it fails to describe the

particular date when a defendant's misconduct began. (See People v. Superior Court (1973) 9

Cal.3d 283, 288 [107 Cal. Rptr. 192, 507 P.2d 1400] [complaint that accused the defendants of

making false and misleading statements, but without noting “the time and place of the

misrepresentations,” was not inadequate for that reason; “[i]f defendants require further specifics

in order to prepare their defense, such matters may be the subject of discovery proceedings”].)

And we see nothing in section 2699.3 suggesting that factual allegations in PAGA notices must

exceed those normally found sufficient in complaints.

Nor do we find anything in PAGA as a whole supporting this proposition. To the contrary, taking

our cues from Williams, we find that requiring some sort of heightened-pleading standard at the

notice stage would “undercut the clear legislative purposes the act was designed to serve.”

(Williams, supra, 3 Cal.5th at p. 546.) PAGA, again, sought to “expand[] the universe of those

who might enforce the law, and the sanctions violators might be subject to,” to “remediate

present violations [of the Labor Code] and deter future ones.” (Williams, at p. 546.) And,

tweaking the Williams court's words slightly, we find “[t]hese purposes would be ill served by

presuming, notwithstanding the failure explicitly to so indicate in the text, that deputized

aggrieved employees must satisfy a PAGA-specific heightened [pleading] standard at the

threshold, before discovery.” (Ibid.; see also id. at p. 548 [“Hurdles that impede the effective

prosecution of representative PAGA actions undermine the Legislature's objectives.”].)

Ibarra v. Chuy & Sons Labor, Inc. (2024) 102 Cal.App.5th 874, 882-883, states in part:

The notice “‘“must be specific enough such that the LWDA and the defendant can glean the

underlying factual basis for the alleged violations.”’” (Id. at p. 350.) A “‘“written notice is sufficient

so long as it contains some basic facts about the violations, such as which provision was

allegedly violated and who was allegedly harmed.”’” (Ibid.)

Our reading of PAGA's prefiling notice requirement is consistent with Williams, supra, 3 Cal.5th

531. In Williams, our Supreme Court examined the notification requirements of section 2699.3 in

the context of whether a PAGA plaintiff “must have some modicum of substantial proof before

proceeding with discovery.” (Williams, at p. 545.) The court observed that “[n]othing in ...

[former] section 2699.3, subdivision (a)(1)(A), indicates the ‘facts and theories’ provided in

support of ‘alleged’ violations must satisfy a particular threshold of weightiness, beyond the

requirements of nonfrivolousness generally applicable to any civil filing.” (Ibid.) Moreover, the

court examined other statutory provisions within the PAGA framework and found “no evidence of

a legislative intent to impose a heightened preliminary proof requirement” a plaintiff must satisfy

before bringing a lawsuit. (Williams, at p. 546.) To insert a heightened requirement of proof

“would undercut the clear legislative purposes the act was designed to serve.” (Ibid.)

Similarly, our view is that section 2699.3 does not impose a heightened requirement of defining

aggrieved employees in the prelitigation notice. So long as the PAGA plaintiff provides facts and

theories to support that alleged wage and hour violations were committed against them, and

includes nonfrivolous allegations that other employees were similarly subjected to such

practices, the notice is sufficient. Interpreting section 2699.3 to include an additional requirement

to define aggrieved employees would be inconsistent with the purpose of PAGA, which is to

“advance the state's public policy of affording employees workplaces free of Labor Code

violations, notwithstanding the inability of the state agencies to monitor every employer or

industry.” (Williams, supra, 3 Cal.5th at p. 546.) “Hurdles that impede the effective prosecution of

representative PAGA actions undermine the Legislature's objectives.” (Id. at p. 548.)

Based on the contents of the PAGA notice, and the reasoning of Santos and Rojas-Cifuentes

and Ibarra, the PAGA notice is sufficient to include the requisite facts and theories to support

Plaintiff’s claim and therefore the Court OVERRULES the demurrer. The PAGA notice is long in

that it is 17 pages long. As noted by Plaintiff in the opposition:

Plaintiff’s Notice not only includes facts as to her dates of employment, duties, and employers,

but also lists out the specific Labor Code violations alleged and the legal theories applicable to

each. For instance, with respect to the claim for civil penalties arising from Defendant’s violation

of state law relating to the provision of mandatory meal periods, Plaintiff asserts a range of

specific factual allegations, including that Defendant was “...providing short meal periods,

including without, limitation meal periods that were recorded for less than thirty minutes, and

meal periods that may appear on the record to be thirty minutes or longer but in practice were

shorter than thirty minutes due to time required to walk to and from a suitable break area, time

spent having to wait in line to clock back in, having to don and doff safety gear during the meal

period, having to undergo security or bag checks during the meal period, and /or having to

retrieve and store personal belongings during the meal period; requiring that employees carry

cellular telephones or walkie-talkies during meal periods; not permitting employees to leave the

premises; otherwise requiring on-duty/on-call meal periods; and auto-deducting meal periods

that could not be auto-deducted by law or during which employees worked.” (Khakh Decl.,

Exhibit A, pg. 4.) With respect to the claim for unpaid minimum wages, Plaintiff alleges, among

other facts, that Defendant was “...engaging, suffering, or permitting employees to work off the

clock, including, without limitation, by requiring employees: to come early to work and leave late

work without being able to clock in for all that time, to suffer under Employer’s control due to long

lines for clocking in, to complete pre-shift tasks before clocking in and post-shift tasks after

clocking out, to clock out for meal periods and continue working, to clock out for rest periods, to

don and doff uniforms and/or safety equipment off the clock, to undergo security checks and/or

bag checks off the clock, to store and retrieve personal belongings off the clock, to attend

company meetings off the clock, to make phone calls, receive and respond to emails and/or

texts, or drive off-the-clock...” (Khakh Decl., Exhibit A, pg. 3.) With respect to reimbursement

claims, Plaintiff’s Notice states that Defendant “failed and refused, and continues to fail and

refuse, to reimburse employees, including, without limitation, Employee and other Aggrieved

Employees, with their costs incurred for driving personal vehicles (i.e., mileage and gas),

purchasing uniforms, providing uniform and other deposits, separately laundering mandatory

uniforms, for the purchase of tools and safety equipment, and for the purchase and maintenance

of cellular phones and cellular phone plans, for pre-employment medical, physical or drivers’

exams taken as a condition of employment, or for compelling or coercing Employee and

Aggrieved Employees, including applicants, to patronize in the purchase of a value or things,

including, without limitation, the Employer’s product(s) and/or service(s), in direct consequence

of the discharge of their duties, or of their obedience to the directions of Employer...” (Khakh

Decl., Exhibit A, pg. 9.) Each allegation specifies that these policies, practices, and procedures

applied to the Employee (defined as Plaintiff) and Aggrieved Employees throughout the

Notice. (Opposition at pp. 7:24-8:28.)

Therefore, the Court finds the PAGA notice sufficient and overrules the demurrer.

MOTION TO STRIKE

Defendant HHC brings this Motion seeking an order from the Court: (1) striking Plaintiff’s class

and representative PAGA claims because she failed to satisfy her PAGA prefiling requisite, she

lacks standing to bring her claims, and her claims are not manageable as pled, or, in the

alternative (2) bifurcating discovery to require individual discovery before Plaintiff is permitted to

engage in class-wide discovery.

The same declaration of John S. Keeney, Esq. and request for judicial notice was filed. However,

in addition a declaration was filed by Cathy West, Director of Quality Assurance and Risk

Management for HHC in this action, a healthcare provider designed to meet the needs of both

short-term rehabilitation and long-term care residents. HHC provides skilled nursing and

rehabilitation. The declaration then continued that Plaintiff worked a total of eight shifts in 2024

and introduced pay records, and other factual discrepancies with regard to off the clock and

bonds for uniforms. The motion argues that Court should strike the PAGA and Class allegations

and dismiss the claims.

Statement of Law. The court may, upon a motion made pursuant to Code Civ. Proc., §435, or at

any time in its discretion, and upon terms it deems proper, strike out all or any part of any

pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of

the court. (Code Civ. Proc., §§ 435 & 436.) Motions to strike are disfavored, and the policy is to

construe the pleadings liberally, with a view toward substantial justice. (Code Civ. Proc.,

§452.) Code Civ. Proc., §436, subd. (a), provides the court may strike any irrelevant, false or

improper matter in a pleading. “Irrelevant” is any immaterial allegation in the complaint.

“Immaterial” is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or

defense.

(3) A demand for judgment requesting relief not supported by the allegations of the

complaint or cross-complaint. (Code Civ. Proc., § 431.10, subd. (b).)

A motion to strike can be used to attack the entire pleading, or any part thereof, i.e., even single

words or phrases. (Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24,

40.) Although a motion to strike can reach conclusory allegations, such language cannot be

stricken where the complaint contains sufficient facts to support such an allegation. (Perkins v.

Sup. Ct. (General Tel. Directory Co.) (1981) 117 Cal.App.3d 1, 6.) “The distinction between

conclusions of law and ultimate facts is not at all clear and involves at most a matter of

degree.” (Id.) “What is important is that the complaint as a whole contain sufficient facts to

apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Id.)

Similar to a demurrer, the grounds on a motion to strike shall appear on the face of the

challenged pleading or from matters that are judicially noticed. (Code Civ. Proc., § 437.)

Additionally, the allegations are read as a whole, with all parts in their context, and assumed

true. (Clauson v. Superior Court (1989) 67 Cal.App.4th 1253, 1255.)

As noted by Plaintiff, this appears to be a motion to strike like that of In re BCBG Overtime

Cases (2008) 163 Cal.App.4th 1293, 1298-1299. That matter was filed in 2002 and the motion

was made in 2007 after other cases had been consolidated. The Court stated:

Class certification is generally not decided at the pleading stage of a lawsuit. “[T]he preferred

course is to defer decision on the propriety of the class action until an evidentiary hearing has

been held on the appropriateness of class litigation.” (Rose v. Medtronics, Inc. (1980) 107

Cal.App.3d 150, 154 [166 Cal. Rptr. 16].) However, if the defects in the class action allegations

appear on the face of the complaint or by matters subject to judicial notice, the putative class

action may be defeated by a demurrer or motion to strike. (Id. at p. 154.) BCBG's “motion to

strike” was not a motion to strike as used during the pleading stage of a lawsuit in both California

and federal procedure. (Code Civ. Proc., § 435; Fed. Rules Civ.Proc., rule 12(f), 28 U.S.C.) It

was a motion seeking to have the class allegations stricken from the complaint by asking the trial

court to hold an evidentiary hearing and determine whether Plaintiffs' proposed class should be

certified. “A motion to strike class allegations is governed by Rule 23, not Rule 12(f). Rule 23

requires that the Court decide the certification issue at the earliest time possible.” (Bennett v.

Nucor Corp. (E.D.Ark., July 6, 2005, No. 3:04CV002915WW) 2005 WL 1773948, at p. *2, fn.

1.) Under both California and federal law, either party may initiate the class certification process.

Here, the motion seeks to strike everything at the beginning by submitting a declaration that is

not even able to be considered at this time because it seeks to bring in facts which are not a part

of the SAC. The Court finds the PAGA notice proper based upon the relevant case law and

therefore the Court DENIES the motion to strike.

RULING

For all the reasons stated above, the Court:

1. FINDS a proper meet and confer;

2. RULES on the requests for judicial notice and objections as listed above;

3. OVERRULES the demurrer and DENIES the motion to strike;

4. ORDERS the Defendant to file an answer within 20 days from the date of this ruling; and,

5. ORDERS Plaintiff’s counsel to give notice of the Court’s ruling.