Benitez v. Wilbur, 2008 U.S. Dist. LEXIS 15018

Plaintiff’s tenth cause of action was brought under the PAGA for alleged Labor Code Violations.  Defendants argued that the Plaintiff’s failed to properly plead this cause of action because case law requires the claim to be plead as a class action, with all the protections afforded to the class certification process. Defendant’s cited Arias v. Superior Court, 153 Cal. App. 4th 777, review granted (Oct. 10, 2007), for the proposition that the California Supreme court granted review on the issue of whether PAGA actions must be brought as a representative action or as a class action.  Because Arias is not citable, the District Court used its best judgment to predict how the Court would decide the issue. (See, General Motors Corp. v. Doupnik, 1 F.3d 862 865 (9th Cir. 1993.)

The District Court pointed out that the PAGA does not contain any statutory language which requires the “representative action” to be brought as a class action.  The Court then distinguished a “representative” action from a “class action,” noting, “while every class action is a representative action, the converse is not the case.”  (Salton City ect. Owner Assn. v. M. Penn Philips Co. 75 Cal. App. 3d 184, 191 (1977.) “In either instance, however, justification for the procedural devie whereby one may sue for the benefit of many rests on considerations of necessity, convenience, and justice.” (Id. at 191).  The Court also noted that, from the Court’s research, the cases imply that the class action is the norm as, “all PAGA cases have been brought as class actions, and not as individual claims.”

The Court also discusses how Defendants argument regarding issues of Due Process has merit if a class action is not required under the PAGA.  The Court acknowledged that “absent a class action mechanism under PAGA, a defendant could win against a named plaintiff and then face additional suits by other employees similarly situated.” The Court further declared that, “A class action lawsuit pursuant to the PAGA would guard against such potential violations of due process…would bind all potential class members to the adjudication of the civil penalties.”  The Court further stated that requiring class action lawsuits under the PAGA would benefit the judicial system, “by eliminating repetitious litigation and providing a method of method of obtaining redress for claims too small to warrant litigation on their own.” Finally, the Court held that it was of their opinion that the California Supreme Court will interpret PAGA as requiring a class action.