In the first significant ruling of its kind, the Los Angeles Superior Court in Bright v. 99¢ Only Stores granted the defendant’s motion to strike the plaintiff’s representative Private Attorneys General Act (PAGA) allegations. The plaintiff, Eugina Bright, filed a complaint against 99¢ Only Stores in June 2009 alleging that the store failed to provide her, and all other cashiers, with suitable seating. In October 2009, the court granted the store’s demurrer prohibiting the plaintiff from pursing a suitable seating claim through PAGA (California Labor Code §§ 2698 et seq.). In November 2010, the court of appeal reversed and remanded the case.

Back at the trial court, the plaintiff represented that she intended to seek class certification for her PAGA claim; yet she ultimately failed to move for certification. Instead, the store proactively moved to strike the plaintiff’s representative allegations in order to prevent her from seeking to recover penalties on behalf of all other alleged “aggrieved” employees. The store first argued that the plaintiff was an inadequate representative of its other cashiers. The store submitted declarations from 376 of its cashiers, all of whom indicated they disagreed with the plaintiff’s demand that they be provided seats, and the plaintiff failed to provide even a single rebuttal declaration. The store also noted the plaintiff’s independent interests in recovering lost wages and her failure to reach out to even a single “aggrieved” employee she sought to represent.

Second, the store argued that any trial would actually require a series of mini-trials to determine whether there is a reasonable need to offer a seat based upon each individual cashier’s specific duties, store, and other responsibilities. The store argued it would be deprived of its due process rights if it were not able to defend itself on a cashier-by-cashier basis.

Ultimately the court agreed with the store, and held that the plaintiff was not an adequate and competent representative and that allowing her to prosecute the action in a representative capacity pursuant to PAGA would be unmanageable. Thus, with trial set for January 23, 2012, the plaintiff is left to pursue only her individual PAGA claim. The penalties provided for by PAGA are subject to a one year statute of limitations and limited to $100 per pay period for the initial violation and $200 per pay period for each subsequent violation – undoubtedly a significantly lower amount than the plaintiff initially sought to recover.

While this case has significant implications for the ever-popular seating lawsuits plaguing many California employers, it also has a wider impact on all cases asserting PAGA claims. The court reaffirmed that a defendant may proactively utilize a motion to strike in order to test a plaintiff’s representative status and the manageability of a representative claim, while at the same time providing some guidance for defending against a PAGA representative action. 

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