A class of plaintiffs must show how their employer's no-premium-wages policy harmed the class m

The Court of Appeal for the Second District has ruled that while a policy or practice of failing to pay premium wages after meal period violations is an unfair business practice within the meaning of the Unfair Competition Law, a class of plaintiffs must still show the no-premium-wages policy harmed the class members in a manner entitling them restitution. The Court further ruled that a plaintiff cannot have his/her untimely-filed Private Attorneys General Act claim relate-back to a prior complaint that did not raise a PAGA claim, and that did not allege a pre-filing notice to the Labor and Workforce Development Agency. (See, Esparza v. Safeway, Inc. - filed June 10, 2019, Second District, Div. Four - 2019 S.O.S. 2669.)

In Esparza, the Respondent employer – Safeway, Inc. and The Vons Companies, Inc. (collectively Safeway) – formerly maintained a policy or practice of failing to pay statutorily required premium wages when, if ever, Safeway violated its duty to provide employees meal periods. Safeway’s duty was not to police meal breaks to ensure that no employees skipped them, but only to free employees from obligation and control, without impeding or discouraging them from taking their breaks. (See, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1039-1041.) If Safeway did unlawfully dissuade an employee from taking a meal break, the Labor Code required Safeway to pay that employee a premium wage equal to one hour’s pay. (Ibid.; Lab. Code, § 226.7, subd. (c).) Prior to June 17, 2007, Safeway paid no premium wages for missed meal periods, without regard to whether an employee had been impeded or discouraged from taking a meal break.

Following a prior appeal in this matter, Safeway moved in the trial court for summary adjudication of the UCL claim, arguing that appellants had shown no viable theory upon which the class could obtain restitution. The trial court agreed, concluding that appellants improperly sought recovery of premium wages without proving the classwide meal period violations necessary for the class members’ interest in premium wages to vest. The court excluded the expert declaration on which appellants relied, exercising its gatekeeping duty under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747. The court also granted Safeway’s motion to strike the PAGA claim -- asserted for the first time in the 2009 second amended complaint -- as time-barred. Because Safeway ended its challenged practice on June 17, 2007, the court measured the applicable one-year limitations period from that date, yielding a deadline of June 17, 2008. It concluded that the statute of limitations barred the employee’s claim because she waited until after that deadline to give notice to the Labor and Workforce Development Agency (LWDA), as PAGA required her to do before filing suit. The trial court rejected her argument that the PAGA claim related back to the April 2007 date of the original complaint. The trial court reasoned that the notice requirement serves the LWDA’s interest in acting before information becomes stale; here, the LWDA received no notice prior to the 2007 original complaint and only untimely notice from the 2008 notice letter. The Court of Appeal agreed.


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