Private Attorneys General Act Review – 2023 - Report - Page 17
In Adolph, et al. v. Uber, No. S274671, the California Supreme Court is currently
considering this PAGA standing issue. Given the California Supreme Court’s track
record of pro-employee decisions, it ultimately may conclude that, even if an individual
PAGA claim has successfully been compelled to arbitration, the plaintiff still has
standing to pursue a separate representative PAGA claim in court. Thus, while initially
hailed as a significant win for employers, the Viking River Cruises decision ultimately
merely might require a PAGA plaintiff to split his or her claims and pursue them in two
separate forums. Briefing in Adolph has concluded and a decision is expected in 2023.
C.
Settlement Issues
In 2022-2023, courts continued to show that they are apt to deny settlement approval
where procedurally the settled claims do not align with the pleadings and the case
theories stated in the operative complaint. For that reason, the court in Rivera, et al. v.
Marriott International, Inc., 2022 U.S. Dist. LEXIS 191238 (C.D. Cal. Oct. 19, 2022),
denied the parties’ proposed class-wide settlement. The plaintiff filed a class action
alleging violations of the California Labor Code and Business and Professions Code on
individual basis and representative basis pursuant to the Private Attorneys General Act
(PAGA). The plaintiff asserted claims for failure to pay all wages due, failure to provide
meal periods, failure to provide rest periods, failure to pay wages of terminated or
resigned employees, failure to issue itemized wage statements and records, and unfair
business practices. Following the filing of the plaintiff’s third amended complaint, his
counsel submitted a declaration stating that plaintiff only wanted to proceed on an
individual basis and by way of a representative proceeding pursuant to PAGA and
wanted the court to permit dismissal of the class allegations. Subsequently, the parties
settled the matter and the plaintiff filed a motion for preliminary settlement approval on a
class basis. The court denied the motion. The plaintiff acknowledged that the court
previously had dismissed the class allegations in the matter. The court determined that,
without any class allegations in the case, it could not conditionally grant class
certification for settlement purposes or grant preliminary approval of a class action
settlement. For these reasons, the court denied the plaintiff’s motion.
Standing concepts also supported challenges to class-wide settlements in 2022-23. An
illustrative decision in this regard is Saucillo, et al. v. Peck, 25 F.4th 1118 (9th Cir.
2022), where the Ninth Circuit held that a plaintiff - who was not a party to claims under
the Private Attorneys General Act (PAGA) representative action - lacked standing to
appeal the PAGA settlement. Plaintiffs brought class action claims and representative
claims under the PAGA on the basis of alleged violations of the California Labor Code.
After several years of litigation, the parties reached a settlement. The district court
overruled the objection of an objector who had filed a separate PAGA claim in a
different case, but was not a party to the underlying PAGA claims. On review, the Ninth
Circuit held that the objector did not have standing to appeal the PAGA settlement
because a representative action under PAGA is distinct from a class action. In
essence, the Ninth Circuit opined that the objector had no right to appeal in the action to
which he was not a party. In reaching this conclusion, the Ninth Circuit rejected the
objector’s contention that he could appeal because, ultimately, he might receive a
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© Duane Morris LLP 2023
PAGA Litigation Review – 2023
