ANTHONY W. ISHII, Senior District Judge.
On July 10, 2015, Amie Holak ("Plaintiff") filed a motion for certification for interlocutory appeal of the Court's May 19, 2015 order. (Doc. 186). For the reasons discussed below, the Court finds that Plaintiff has not met the requirements for an interlocutory appeal and therefore Plaintiff's motion will be denied.
Plaintiff claims Defendant violated Labor Code Sections 510, 1198, 1194, 1197, 1197.1, 201, 202, 226(a), 1198, 2698 et seq., as well as California Code of Regulations, Title 8, Section 11070(14) and California Business and Professions Code Section 17200. On November 17, 2014, Defendant filed a motion for partial summary judgment on Plaintiff's sixth cause of action for civil penalties under the Private Attorneys General Act ("PAGA") and fourth cause of action regarding penalties under California Labor Code Section 226(e). (Doc. 150). On May 19, 2015, the Court granted Defendant's motion. (Doc. 180). The Court's order concluded, among other things, that (1) Plaintiff is "constrained to her involuntary wait time theory in bringing a claim for PAGA penalties" because it was the only remaining theory properly exhausted in her notice letter, and (2) that Plaintiff cannot recover under Section 226(e) because Plaintiff never suffered an injury. (Doc. 180). Plaintiff now asks the Court to certify its May 19, 2015 order for an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
A district judge may certify an order for an interlocutory appeal if such an order involves, (1) a controlling question of law, (2) to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). A question is "controlling" if resolution of the "issue on appeal could materially affect the outcome of litigation in the district court." In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d 1020, 1026 (9th Cir. 1981). The controlling question of law requirement is "intend[ed] to capture those `exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.'" Dalie v. Pulte Home Corp., 636 F.Supp.2d 1025, 1028 (E.D. Cal. 2009)(quoting U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966)). "To determine if a `substantial ground for difference of opinion' exists under § 1292(b), courts must examine to what extent the controlling law is unclear." Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010). The requirement of substantial ground for difference of opinion is not satisfied simply because, settled law might be applied differently (Id.), a party strongly disagrees with the court's decision (Hansen v. Schubert, 459 F.Supp.2d 973, 1000 (E.D. Cal. 2006)), or there is a "dearth of case" law contradicting the court's decision (Davis Moreno Const., Inc. v. Frontier Steel Bldg. Corp., 2011 WL 347127, at *2 (E.D. Cal. Feb. 2, 2011)). Third, the ultimate termination of litigation is materially advanced if "trial is avoided or the time to litigate a matter is substantially shortened." Conte v. Jakks Pac., Inc., 2012 WL 3069971, at *3 (E.D. Cal. July 27, 2012).
Section 1292(b) should be applied "sparingly and only in exceptional cases." In re Cement Antitrust Litig. (MDL No. 296), 673 F.2d at 1027. An interlocutory appeal is not "intended merely to provide review of difficult rulings in hard cases." U. S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). Section 1292(b) must be construed narrowly since it is a departure from the general rule that only final judgments are appealable. Zone Sports Ctr., LLC v. Rodriguez, 2013 WL 3766749, at *4 (E.D. Cal. July 16, 2013). Generally, a district court should not certify an order for an interlocutory appeal where it would prolong rather than advance resolution of the litigation. Porter v. Mabus, 2014 WL 669778, at *2 (E.D. Cal. Feb. 20, 2014). The burden to show the presence of exceptional circumstances justifying an interlocutory appeal is on the party seeking certification. Hansen v. Schubert, 459 F.Supp.2d 973, 1000 (E.D. Cal. 2006).
Plaintiff seeks certification of two issues, (1) whether the Court may limit a PAGA plaintiff to the specific facts and theories alleged in the PAGA notice letter and the degree of detail required for the letter, and (2) whether Plaintiff herself must have suffered an actual injury to recover under 226(e). Although Plaintiff states she seeks certification of only two questions, the Court believes that the first question is appropriately divided into two separate questions. Plaintiff's first question addresses two different issues, (1) whether the Court may limit a PAGA plaintiff to the specific theories alleged in the PAGA notice, and (2) the degree of detail required in a PAGA notice letter to exhaust any one specific theory. The Court will address each question separately.
Plaintiff argues the question regarding whether a PAGA plaintiff can be limited to the precise facts and theories enumerated in the notice letter is an issue of disagreement among district courts. (Doc. 186 at 14). Plaintiff acknowledges that the court in Bradescu limited the plaintiff to the theories contained in the notice letter, but argues that other courts have taken a "more permissive approach." (Doc. 186 at 14-15)(compare Bradescu v. Hillstone Rest. Grp., Inc., 2014 WL 5312546, at *11 (C.D. Cal. Sept. 18, 2014) order confirmed, 2014 WL 5312574 (C.D. Cal. Oct. 10, 2014)(holding that a plaintiff is "limited to specifically those theories (and those Labor Code sections) mentioned" in the PAGA notice); with Ovieda v. Sodexo Operations, LLC, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013)(holding that a notice must contain at least "some `facts and theories' specific to the plaintiff's principal claims" to constitute adequate notice)).
Most of the cases cited by Plaintiff address the issue of what constitutes a substantively sufficient notice letter rather than the question of whether a plaintiff is limited to the theories exhausted in their PAGA notice. Cardenas is the only case cited by Plaintiff which comes close to supporting the argument that a plaintiff is not limited to the theories alleged in their PAGA notice.
In Cardenas the plaintiffs' notice letter informed the defendant that "the action was being `brought on behalf of thirty-seven truck drivers.'" Cardenas v. McLane FoodServices, Inc., 796 F.Supp.2d 1246, 1259 (C.D. Cal. 2011). The letter also stated the defendant employed plaintiffs out of its Southern California distribution center as truck drivers. Id. The defendant argued the letter limited the action to the southern California area and the thirty-seven plaintiffs. Id. The letter did not, according to the defendant, support a PAGA claim on behalf of employees from a distribution center located in northern California. Id. The court determined that the plaintiffs were not bound to the facts and theories exactly as laid out in the letter and that PAGA does not require "inclusion of every potential fact or every future theory." Id. at 1260. The court held that as long as the letter "reasonably details facts and theories sufficient to comply with PAGA's administrative procedures . . . the addition of future employees will not suggest a failure to exhaust." Id. at 1261.
In Cardenas the plaintiffs did not seek to add a new theory of liability. Instead, the plaintiffs sought to expand the membership of the representative action to include employees from a distribution center in northern California who were impacted by the defendant's same policy in the same manner. The plaintiffs' claims and theories of liability were based on the facts and theories explained in the notice letter. Here, Plaintiff's letter articulated the theory that she and other employees "were `required to wait off-the-clock while their supervisors finished up his or her duties, including closing procedures, and physically let them out of the store.'" (Doc. 180, p. 6). Plaintiff is not attempting to expand the membership of the representative action — based on the same theory — like the plaintiffs in Cardenas; instead she seeks to introduce a new theory of liability that "Defendant failed to pay overtime at a rate of 1.5 times the base hourly rate." Id. Plaintiff has identified no authority for that proposition. Accordingly, Plaintiff has not demonstrated that there is a substantial ground for difference of opinion on whether a plaintiff is limited to the theories stated in their notice letter.
In fact, this case is nearly on all fours with Bradescu. In Bradescu the court noted that the plaintiff's notice letter was substantively sufficient because it contained facts and theories and specific provisions of the Labor Code which had allegedly been violated. Bradescu v. Hillstone Rest. Grp., Inc., 2014 WL 5312546, at *11 (C.D. Cal. Sept. 18, 2014) order confirmed, 2014 WL 5312574 (C.D. Cal. Oct. 10, 2014). Although the court determined the plaintiff's letter was sufficient, it concluded that the plaintiff's PAGA claim was "limited to specifically those theories (and those Labor Code sections) mentioned in her PAGA notice." Id. Since Plaintiff has not demonstrated that there is a substantial difference of opinion on whether a plaintiff is limited to the theories stated in the notice letter, Plaintiff's request for certification of the order on this issue will be denied.
Plaintiff argues there is substantial ground for difference of opinion because district courts have disagreed on what degree of specificity is required in a notice letter under PAGA. (Doc. 186 at 14-15). Plaintiff claims this is a controlling question of law because it would "substantially affect a large number of cases." (Doc. 186 at 11). According to Plaintiff, resolution of this issue on appeal would have a "material effect on the outcome of the litigation." (Doc. 186 at 12).
The Court's May 19, 2015 order granted summary judgment for Defendant on Plaintiff's PAGA penalty claims. (Doc. 180). The Court concluded that Plaintiff had not complied with the exhaustion requirements regarding her theory that Defendant violated Section 226(a) by "`incorrectly stat[ing] the overtime rate as an amount markedly less than 1.5 times Plaintiff's regular rate.'" (Doc. 180 at 5). Plaintiff's PAGA letter stated:
Violation of California Labor Code § 226(a)
(Doc. 155-3 at 5). The Court held that the quoted section of the letter contained no facts or theories of liability and would not constitute sufficient notice under Section 2699.3 by itself. (Doc. 180 at 6). But, read as a whole the letter was substantively sufficient because it explained the theory that Plaintiff and other aggrieved employees were required to wait off the clock. Id. The Court determined that because only Plaintiff's off the clock wait time theory had been adequately exhausted, she was limited to that theory of liability in bringing a claim for PAGA penalties. Id.
Section 2699.3(a)(1) requires an aggrieved employee to send written notice to the LWDA and the employer detailing the specific Labor Code provisions which have allegedly been violated and the facts and theories to support the alleged violations. Cal. Lab. Code § 2699.3 (West 2015). In Archila, the Ninth Circuit found the plaintiff's notice letter did not comply with the requirements of Section 2699.3 because it did not contain facts and theories to support the plaintiff's allegations. Archila v. KFC U.S. Properties, Inc., 420 F. App'x 667, 669 (9th Cir. 2011). Soto interpreted Archila as requiring an "exceedingly detailed level of specificity for Section 2699.3(a)(1) to be satisfied." Soto v. Castlerock Farming & Transp. Inc., 2012 WL 1292519, at *8 (E.D. Cal. Apr. 16, 2012)(citing Archila, 420 F. App'x at 669).
Relying on Soto, Alcantar applied the higher standard to determine if exhaustion is satisfied. In Alcantar the court explained that the plaintiff's letter was insufficient because, like the letter in Archila, it only "vaguely list[ed] ways in which the California Labor Code provisions were violated and fail[ed] to allege specific facts." Alcantar v. Hobart Serv., 2013 WL 228501, at *4 (C.D. Cal. Jan. 22, 2013). The letter stated:
Id. at *2. The court did not use the term "exceedingly detailed level of specificity," but citing Soto the court explained that Soto "demonstrates that simply claiming violations of Labor Code provisions without specifying the factual context underlying those violations is insufficient for satisfying the statutory prerequisites of PAGA." Id. at *3.
Other courts in this Circuit have disagreed with Soto's reading of Archila, requiring instead that the notice contain "at least some alleged facts and theories." Ovieda v. Sodexo Operations, LLC, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013); Gonzalez v. Millard Mall Servs., Inc., 2012 WL 3629056, at *6 (S.D. Cal. Aug. 21, 2012); Moua v. Int'l Bus. Machines Corp., 2012 WL 370570, at *5 (N.D. Cal. Jan. 31, 2012); see York v. Starbucks Corp., 2012 WL 10890355, at *4 (C.D. Cal. Nov. 1, 2012); Gonzalez v. Millard Mall Servs., Inc., 2012 WL 3629056, at *3 (S.D. Cal. Aug. 21, 2012). Amey, Ovieda, and Moua explicitly applied the lower standard requiring "some facts and theories" to satisfy the exhaustion requirement. The Amey letter stated
Violation of California Labor Code § 226(a)
The court noted that the Central District's opinion in York appeared to support the plaintiffs' argument that "it is unreasonable to expect [plaintiffs] to include every theory and detail of their allegation under section 226 prior to discovery." Amey v. Cinemark USA Inc., 2015 WL 2251504, at *14-15 (N.D. Cal. May 13, 2015)(citing York v. Starbucks Corp., 2012 WL 10890355, at *4 (C.D. Cal. Nov. 1, 2012)). But, the court did not find York to be persuasive. Id. It explained that the sole factual allegation contained in the notice, failure to state the total hours worked as a result of working off the clock, was unrelated to the plaintiffs' new claim that the overtime rate was listed the same as employees' hourly rate. Id. at 15. As such, the court determined that the one factual allegation did not adequately give the defendant notice of plaintiffs' facts and theories regarding the new alleged violation of Section 226. Id. After analyzing a number of cases, the court held that it is clear that "plaintiffs are required to provide at least some information regarding the theories relating to the alleged violations." Id. at 14.
In Ovieda the court held that "to constitute adequate notice under § 2699.3(a), the notice must allege at least some `facts and theories' specific to the plaintiff's principal claims." Ovieda v. Sodexo Operations, LLC, 2013 WL 3887873, at *3 (C.D. Cal. July 3, 2013). The court found the plaintiff's letter was insufficient because it did not describe the defendant's allegedly unlawful policies or practices. Id. at *4. Instead, the letter merely "recit[ed] the statutory requirements defendants allegedly violated." Id. at *3. The term "principal claims" appears to refer to the underlying labor code provisions.
The Moua court determined the plaintiff's letter was sufficient because it named the specific employees and identified "at least some facts and theories." Moua v. Int'l Bus. Machines Corp., 2012 WL 370570, at *5 (N.D. Cal. Jan. 31, 2012).
York did not articulate the standard necessary for exhaustion, but it appears the court used a standard similar to, if not the same as, the "some facts and theories" standard. York v. Starbucks Corp., 2012 WL 10890355, at *4. In York the plaintiffs' letter stated
Violation of California Labor Code § 226(a)
The defendants argued the notice was not sufficient because it did not meet the "exceedingly detailed level of specificity" standard. York v. Starbucks Corp., 2012 WL 10890355, at *3 (C.D. Cal. Nov. 1, 2012). The defendants found fault with the fact that the letter "alleged the `applicable hourly rates' were absent from the wage statements instead of specifically alleging that the `overtime rate' was missing." Id. at 4. The court noted that Archila and Soto involved more complex claims and that the plaintiff's letter was more detailed than the letters involved in those cases. Id. The court concluded — without explicitly articulating what standard it applied — that the letter was sufficient and that no case law required the level of detail suggested by the defendants. Id. at *4.
The court in Gonzalez also did not explicitly articulate what standard it applied, but it appears the court relied on a standard similar to the "some facts and theories" standard of Moua. The plaintiffs' letter in Gonzalez stated:
Gonzalez v. Millard Mall Servs., Inc., 2012 WL 3629056, at *3 (S.D. Cal. Aug. 21, 2012). The defendants argued the letter did not provide notice of the facts and theories supporting the allegation that there was no California address where the checks could be cashed. Id. at *5. The court stated that it disagreed with the Soto court's interpretation that Archila requires a PAGA notice to contain an exceedingly detailed level of specificity. Id. The court explained that the notice "states one specific labor code violation as well as facts to support that violation." Id. at *6. The court found this constituted "sufficient facts" since the plaintiffs' theory that there was no California address where the checks could be cashed could be understood from the phrase "Defendants issued pay checks out of a bank in Illinois and the address of the bank does not appear on the checks." Id.
The notice letters in York and Amey are very similar to Plaintiff's letter and both apply a lower standard for exhaustion than articulated in Soto. However, York and Amey come to opposite outcomes regarding the adequacy of the largely identical notice letters. York determined that the plaintiff's letter was sufficient to support the theory that the overtime rate was missing from the wage statements despite the fact that the notice letter only alleged the applicable hourly rates were missing. Amey, on the other hand, held that the plaintiff's allegation in the notice letter, that defendant failed to state the total hours worked as a result of working off the clock, was not sufficient to support the plaintiff's new theory that the overtime rate was listed incorrectly. Amey supports this Court's conclusion that the notice letter regarding Defendant's alleged Section 226(a) violation is not sufficient to support the theory that Defendant violated Section 226(a) by incorrectly stating the overtime rate as less than 1.5 times Plaintiff's regular rate. But, York supports Plaintiff's argument that the portion of the letter explaining the alleged Section 226(a) violation is sufficient to support her PAGA claim. Other courts seem to side with Amey's and this Court's conclusion that if a plaintiff gives no notice of a particular theory in their letter, they cannot later rely on that theory of liability.
The Court agrees that there is disagreement among federal district courts regarding what standard should be used when determining whether a PAGA notice letter contains sufficient facts and theories. This Court and Alcantar relied on Soto to determine whether the notice letter was sufficient. Amey, Ovieda, and Moua explicitly applied a standard requiring "some facts" or "some information" regarding the plaintiff's facts and theories. Gonzalez and York appear to apply the same standard — although it was not explicitly articulated. Although these cases applied different standards, all, except York, seem to agree that if a plaintiff provides no notice of a specific theory, that theory is not exhausted under Section 2699.3. Plaintiff's letter gave no notice of the theory that the wage statements were in violation of Section 226(a) because they incorrectly stated the overtime rate as less than 1.5 times Plaintiff's regular rate. Even under the lower standard, providing no notice of a theory is not sufficient to exhaust. The only case supporting Plaintiff's position is York. But, since a "dearth of cases" —a single outlier in this instance — contradicting the Court's decision does not constitute a substantial ground for difference of opinion, the Court will not certify an interlocutory appeal on this issue. See Davis Moreno Const., Inc. v. Frontier Steel Bldg. Corp., 2011 WL 347127, at *2 (E.D. Cal. Feb. 2, 2011).
Plaintiff argues the Court's order requiring Plaintiff to have suffered an injury herself during her employment "imposed a limitation unsupported in any case law including the pre-2013 Amendment case law on which the Court relied." (Doc. 186 at 9). Further, Plaintiff claims there are competing lines of authority as to whether Section 226(e) requires "actual injury" or whether an injury can be found under an objective standard. (Doc. 186 at 17-20).
In the May 19, 2015 order the Court concluded that whether information is promptly and easily determinable is an objective standard, but that an employee must have actually viewed the wage statements. (Doc. 180 at 10-11). The Court found that the 2013 amendment "clarified the injury requirement of Section 226(e)" rather than eliminate any actual injury requirement
Novoa explained that "the 2013 Amendment is best understood as clarifying that the Section 226 injury requirement hinges on whether an employee can `promptly and easily determine' from the wage statement, standing alone, the information needed to know whether he or she is being underpaid." Novoa v. Charter Commc'ns, 2015 WL 1879631, at *14 (E.D. Cal. Apr. 22, 2015). The court determined the plaintiff had suffered an injury because he had to "engage in mathematical computations to reconstruct time records and determine if he was correctly paid." Id. at 15.
Boyd interpreted the 2013 Amendment as clarifying that the injury requirement of Section 226(e) is "presumptively satisfied if the employer fails to provide accurate and complete information as required by" Section 226(e)(2)(B). Boyd v. Bank of Am. Corp., 2015 WL 3650207, at *33 (C.D. Cal. May 6, 2015). The court found the plaintiffs had satisfied the injury requirement because the plaintiffs could not "readily determine the total hours worked and applicable hourly pay, which made it difficult for them to determine the amount of overtime worked." Id. Boyd explains that the injury requirement is "presumptively satisfied if the employer fails to provide accurate and complete information." Here, Plaintiff presumptively satisfied the injury requirement because Defendant failed to provide accurate information on the wage statements. But, nothing indicates that this presumption cannot be rebutted. In her deposition testimony Plaintiff testified that she never viewed her wage statements; rebutting the presumption that she had suffered an injury. (Doc. at 11-12).
In Ridgeway the plaintiffs argued they did suffer an injury because the defendant failed to include the required information on their wage statements and as a result they could not "promptly and easily determine from the wage statements alone the total hours worked, piece rates paid, or applicable hourly rates." Ridgeway v. Wal-Mart Stores, Inc., 2014 WL 2600326, at *8 (N.D. Cal. June 10, 2014). The court granted summary judgment for the defendant because the plaintiffs had not stated in their declarations or depositions that they actually engaged in any mathematical calculation. Id. at *9. The court concluded "that plaintiffs have failed to identify evidence of injury sufficient to raise an issue of material fact as to whether [plaintiffs] suffered a compensable injury under Section 226(e)." Id.
In Green the defendant admitted that the plaintiff's wage statements did not include the required information about the applicable hourly rates. Green v. Lawrence Serv. Co., 2013 WL 3907506, at *13 (C.D. Cal. July 23, 2013). But, the defendant argued the plaintiff had not suffered an injury and could not recover under Section 226(e). Id. During her deposition, the plaintiff testified that it was not difficult to find the information missing from the wage statements online. Id. at *14. The court found the plaintiff had "never experienced confusion, based on a wage statement, over whether she received all wages she was owed; she also never experienced difficulty in reconstructing pay records, and did not have to perform complex mathematical computations to analyze whether she was properly compensated." Id. Therefore, although the wage statement did not comply with Section 226(a), the plaintiff could not recover because she had not suffered an injury. Id. Here, Plaintiff never viewed her wage statements, and so, like the plaintiff in Green, she never experienced confusion based on her wage statements.
Nguyen held that to recover under Section 226(e) a plaintiff must demonstrate they suffered some injury due to the employer's violation of Section 226(a). Nguyen v. Baxter Healthcare Corp., 2011 WL 6018284, at *8 (C.D. Cal. Nov. 28, 2011). The court determined that, "in light of the fact [plaintiff] did not check her wage statements electronically," there was "insufficient evidence to raise a triable issue as to whether [the plaintiff]" suffered an injury. Id. at *9.
Courts are in agreement that the injury requirement under Section 226(e) is minimal, but that a plaintiff must still have suffered some injury.
In addition, interlocutory appeal on any question presented would not materially advance termination of this litigation. An appeal cannot be said to materially advance the ultimate termination of litigation, "when litigation will be conducted in substantially the same manner regardless" of the appellate court's decision. Gitson v. Trader Joe's Co., 63 F.Supp.3d 1114, 1117 (N.D. Cal. 2014)(quoting White v. Nix, 43 F.3d 374, 378-79(8th Cir. 1994)). In Medlock, the plaintiffs filed a motion for certification of an order for interlocutory appeal. Medlock v. Taco Bell Corp., 2014 WL 6389382, at *2 (E.D. Cal. Nov. 14, 2014). The plaintiffs sought to appeal the court's denial of class certification with respect to plaintiffs' PAGA claims for alleged wage and hour violations. Id. In denying the motion the court reasoned,
Id.
This case is very similar to Medlock. Here, Plaintiff seeks certification of an appeal to revive her PAGA claim and her claim pursuant to Section 226(e). Whether Plaintiff appeals the Court's order now or waits until final judgment, the same result would occur and little, if any, time would be saved. Plaintiff argues that interlocutory appeal will materially advance the termination of litigation because it would be more "economical" if the Court only has to preside over one trial with one jury. Like the court in Medlock, this Court agrees that while a single trial might be more convenient, it does not satisfy the materially advanced standard justifying certification for an interlocutory appeal.
Plaintiff's motion for certification of the Court's May 19, 2015, order for interlocutory appeal is DENIED.
