Thursday, November 29, 2018

City of Oakland v. Oakland Police and Fire Retirement System

Following this court’s published decision in City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210 (OPFRS)—which involved the legitimacy of certain retirement benefits regularly paid by the Oakland Police and Fire Retirement Board (Board) to members and beneficiaries of the Oakland Police and Fire Retirement System (PFRS)—the Retired Oakland Police Officers Association, along with several individual PFRS pensioners (collectively, the “Association”) sought attorney fees in the trial court.  Specifically, the Association—interveners in the underlying action—claimed an entitlement to fees under both California’s private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5), and section 1988 of the federal Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988 (section 1988).  After considering the matter at some length, the trial court determined that fees were not warranted under either statute.  On appeal, many of the trial court’s numerous conclusions made in connection with its denial of fees are disputed either by the Association or by respondent City of Oakland (City).  We have considered the arguments raised by both parties, and deem an award of attorney fees under section 1021.5 to be proper.  We therefore reverse and remand the matter so that the trial court can determine the appropriate amount of such an award, consistent with our conclusions herein.

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Sulyma v. Intel Corp. Inv. Policy Comm.

The panel reversed the district court’s grant of summary judgment in favor of the defendants in an ERISA action on the ground that the limitations period had expired.

A former employee and participant in Intel’s retirement plans sued the company for allegedly investing retirement funds in violation of ERISA section 1104. The district court concluded that the employee had the requisite “actual knowledge” to trigger ERISA’s three-year limitations period, 29 U.S.C. § 1113(2).

The panel held that a two-step process is followed in determining whether a claim is barred by section 1113(2). First, the court isolates and defines the underlying violation on which the plaintiff’s claim is founded. Second, the court inquires whether the plaintiff had “actual knowledge” of the alleged breach or violation. The panel held that actual knowledge does not mean that a plaintiff had knowledge that the underlying action violated ERISA, nor does it merely mean that a plaintiff had knowledge that the underlying action occurred. Rather, the defendant must show that the plaintiff was actually aware of the nature of the alleged breach more than three years before the plaintiff’s action was filed. In an ERISA section 1104 case, the plaintiff must have been aware that the defendant had acted and that those acts were imprudent. Disagreeing with the Sixth Circuit, the panel held that the plaintiff must have actual knowledge, rather than constructive knowledge.

The panel concluded that disputes of material fact as to the plaintiff’s actual knowledge precluded summary judgment, and remanded the case to the district court for further proceedings.

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Friday, November 16, 2018

Hernandez v. Pacific Bell Telephone Company

Workers are not entitled to be compensated for time spent traveling in employer-provided vehicles between their homes and worksites under an optional and voluntary home dispatch program. Simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport.

Hernandez v. Pacific Bell Telephone Company - filed Nov. 15, 2018, Third District 
Cite as 2018 S.O.S. 5415 

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G.R.P. Mechanical Company, Inc.

G.R.P. Mechanical Company, Inc.  (14-CA-211817)  Bethalto, IL, November 6, 2018.  No exceptions having been filed to the September 24, 2018 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order.  Charge filed by an individual. 

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Rhode Island LFG Genco, LLC

Rhode Island LFG Genco, LLC  (01-RC-208704)  Johnston, RI, November 7, 2018.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision on Challenged Ballot and Certification of Representative, finding the petitioned-for unit of maintenance-department technicians appropriate for collective bargaining purposes, as it raised no substantial issues warranting review.  The Board also denied the Employer’s Motion to Stay the Certification of Representative.  Petitioner—International Brotherhood of Teamsters Local 251.  Chairman Ring and Members Kaplan and Emanuel participated.

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Thursday, November 15, 2018

Huerta v. Kava Holdings

Code of Civil Procedure Sec. 998 does not apply to nonfrivolous Fair Employment and Housing Act litigation that predates the application of the amended version of Government Code Sec. 12965(b).

Huerta v. Kava Holdings - filed Nov. 14, 2018, Second District, Div. Eight 
Cite as 2018 S.O.S. 5371 

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Prison Group Faces Lawsuit Over Immigrant Wages

ALBUQUERQUE, N.M. — The operator of one of the largest private prison systems in the United States paid detained immigrants at a New Mexico prison as little as $1 per day as part of “volunteer” work programs, and refused to pay them minimum wages even though they were not convicted of any crimes, a new federal class-action lawsuit alleges.

Three detained men from the Central African country of Cameroon who came to the U.S. seeking asylum were paid the low wages for janitorial and kitchen work at the CoreCivic-run prison at the Cibola County Correctional Center in Milan, New Mexico, according to court documents filed Wednesday in U.S. District Court in Maryland.

For about six months, Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang were held at the detention center after surrendering to U.S. officials at the U.S.-Mexico border in Texas in June 2017, said Joseph Sellers, the attorney for the men and a partner at New York law firm of Cohen Milstein Sellers & Toll.

All three men are members of a politically persecuted Anglophone minority in Cameroon and they came to the U.S. fleeing torture and persecution by police, Sellers said.

But it was while they awaiting the hearing for asylum that prison officials offered the men a chance to make money to cover basic necessities like phone calls, food and toiletries while in detention.

The men were sometimes paid around $0.50 an hour or $15 a week regardless of the number of hours they worked in violation of state and federal wage laws, the lawsuit said.

“They had no way of knowing if that was unlawful or not until they consulted a lawyer,” Sellers said. “They were doing real work like the rest of us work. They are entitled to be paid overtime. They are entitled to be paid the prevailing wage. They were paid far below it.”

The Nashville, Tennessee-based CoreCivic did not immediately return an email from The Associated Press.

Sellers said the men were not facing criminal charges and are now U.S. residents living in Maryland and Ohio. The men are seeking an unspecified amount in back pay and damages.

Attorneys said they believe as many as 1,000 other immigrants held at the Cibola County Correctional Center might have worked for similarly low wages and could be entitled to relief.

Last year, a federal judge ruled that Washington state could pursue its lawsuit seeking to force GEO Group — one of the nation’s largest privately run immigration detention centers — to pay minimum wage for work done by detainees.

The for-profit company runs the Northwest Detention Center, a 1,575-bed facility in Tacoma, Washington, where detainees are held pending deportation proceedings.

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Thursday, November 8, 2018

Rookaird v. BNSF Railway Company

An employer can be held liable under the Federal Railroad Safety Act for retaliating against a worker for refusing to engage in an action when he had an objectively reasonable belief that the act would violate a railroad safety rule or regulation.

Rookaird v. BNSF Railway Company - filed Nov. 8, 2018
Cite as 2018 S.O.S. 16-35786

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Manavian v. Dept. of Justice

A career executive assignment (CEA) is “an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority.  Such a position can be established only in the top managerial levels of state service and is typified by broad responsibility for policy implementation and extensive participation in policy evolvement.  Assignment by appointment to such a position does not confer any rights or status in the position other than provided in Article 9 . . . of Chapter 2.5 of Part 2.6.”  (Gov. Code, § 18547.) The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.  (§ 19889.2.)

CEA positions are part of the general civil service system, but an employee enjoys no tenure in a CEA.  (Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678, 689, 692 (Professional Engineers).)  The CEA legislation was created to encourage the use and development of well-qualified selected executives.  (Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 293.)  As a result of the need for flexibility at this level, the appointing authority may terminate a CEA without cause.  (Professional Engineers, at p. 692.)

This case illustrates the need for flexibility in terminating a CEA position.  Plaintiff Edward Manavian held a CEA position as chief of the Criminal Intelligence Bureau (Bureau), part of the Department of Justice (DOJ).  Formed after the September 11 terrorist attacks, the Bureau is a partnership of local and state law enforcement agencies created pursuant to a memorandum of understanding (MOU) between the Governor and Attorney General.  The Bureau’s mission is to facilitate local, state, and federal law enforcement intelligence collection and sharing.  In particular, Manavian’s job description was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. 

However, Manavian’s relationships with state and federal decisionmakers were not good.  The director and deputy director of the state Office of Homeland Security were ready to withdraw from the DOJ partnership and refused to work with Manavian.  Richard Oules, Manavian’s superior, decided to terminate Manavian’s CEA position because of his dysfunctional relationship with federal and state representatives and because of Manavian’s hostility toward Oules.

As a chief designated as a peace officer by the Attorney General, Manavian is also entitled to the protections of the Public Safety Officers Procedural Bill of Rights Act (POBRA), section 3300 et seq.  (Pen. Code, § 830.1, subd. (b); § 3301.)  POBRA provides certain protections pertaining to the investigation, interrogation, and administrative appeal of punitive actions.  (§§ 3303, 3304, subd. (b).)  This case is premised on the claim that the termination of Manavian’s CEA position was a punitive action protected by POBRA, despite clear language to the contrary in section 19889.2.
Manavian also claims that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by the California whistleblower statutes.            

We shall conclude that POBRA protections were not triggered by the termination of Manavian’s CEA position, and that he is not protected as a whistleblower.

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BNSF Railway Company v. Loos

Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

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Guerrero v. Cal. Dept. of Corrections and Rehabilitation

Victor Guerrero, a Mexican immigrant and aspiring California correctional officer, filed a federal action alleging discriminatory failure-to-hire against the California Department of Corrections and Rehabilitation (the CDCR), among other defendants.  He pled federal and state law claims, but only his state claims allowed him to seek general damages. 

The federal court dismissed Guerrero’s state claims on Eleventh Amendment grounds, effectively limiting his potential money recovery to the equitable remedy of backpay.  To recoup damages, Guerrero filed this action in superior court.  After final judgment was entered in the federal action—in Guerrero’s favor—the superior court dismissed his state claims under California claim preclusion principles.

On appeal, Guerrero now argues that federal law, not California law, governs the preclusive effect of the federal judgment.  Under federal law, Guerrero contends, there is a well-recognized exception to claim preclusion rules where jurisdictional limitations in a prior suit blocked the plaintiff’s request for complete relief, as was the case here.  We agree and shall reverse.  

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Tuesday, November 6, 2018

Mount Lemmon Fire Dist. v. Guido

John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b). 

Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previous, 1972, amendment to Title VII added States and their subdivisions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amendment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By contrast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment also amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).

Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.

The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivisions with agents, a discrete category that carries no numerical limitation.

Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the number of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold.

Pp. 4–6. 859 F. 3d 1168, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

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Monday, November 5, 2018

Ramos v. Superior Court

An arbitration provision in an employment agreement was procedurally and substantively unconscionable as applied to the worker’s claims to vindicate her statutory rights and for wrongful termination. If a worker’s claims have their “roots in the relationship” created by the agreement that required arbitration of claims “arising under or related to” the agreement, then the claims fall within the scope of the agreement. The law remains that mandatory employment contracts that require employees to waive their rights to bring statutory discrimination claims under the Fair Employment and Housing Act and related claims for wrongful termination in violation of public policy are unlawful.

Ramos v. Superior Court (Winston & Strawn) - filed Nov. 2, 2018, First District, Div. One 
Cite as 2018 S.O.S. 5302 

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Quiles v. Parent

In this latest chapter in what originated as a wage and hour class action, defendant Arthur J. Parent, Jr. (Parent) appeals from the amended judgment entered in favor of plaintiff Amanda Quiles on her individual claim for wrongful employment termination in violation of the federal Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.).  (All further statutory references are to title 29 of the United States Code unless otherwise specified.)  In addition to the damages awarded by the jury, the amended judgment awarded Quiles $689,310.04 in attorney fees and $50,591.69 in costs of litigation. 

Parent challenges the attorney fees and costs awards of the amended judgment only, arguing the trial court erred by awarding costs that were not statutorily authorized and by awarding attorney fees and costs that were jointly incurred by Quiles with her coplaintiffs for whom litigation remains pending.  He also argues the trial court otherwise abused its discretion by awarding attorney fees and costs that were unrelated and unnecessary to Quiles’s successful FLSA claim. 

We affirm.  We hold, in this case of first impression, that federal law applies to the determination of what type of costs are recoverable by a prevailing party in an FLSA action filed in state court.  Section 216(b) provides that any employer who wrongfully terminates the employment of an employee in retaliation for filing an FLSA action shall be liable for legal or equitable relief and shall pay the employee’s reasonable attorney fees and costs of the action.  Federal courts have construed section 216(b) to authorize awarding a prevailing employee a broad measure of costs, which include copying, postage, and mediation expenses. 

We reject Parent’s argument that the trial court erred by awarding Quiles mediation costs because the parties had contractually agreed to mediate the matter and divide the costs between them.  The record shows that the parties agreed to each pay the mediation services provider half the costs of mediation, but Parent did not go through with any agreement to mediate, having failed to personally appear at the mediation or otherwise be available to participate in the mediation.  Parent forfeited his argument that the trial court awarded expert witness fees that were unauthorized by the FLSA.  He failed to raise that argument in the trial court which resulted in the issue not having been fully briefed and in depriving the trial court the opportunity to make that determination in the first instance.

We also reject Parent’s claim that the trial court erred by awarding Quiles costs she jointly incurred with other plaintiffs who continue to litigate their claims.  The trial court painstakingly reviewed the lengthy record regarding Quiles’s requests for attorney fees and costs and awarded her what the court determined she reasonably incurred on her own behalf and in relation to her successful claim.  Contrary to Parent’s argument, the trial court did not err by awarding Quiles attorney fees and costs she incurred in connection with the trial as to the joint employer issue.  Having proven Parent’s status as her joint employer enabled Quiles to avail herself of the opportunity to pursue damages, penalties, attorney fees and costs against Parent for violating the FLSA by wrongfully terminating Quiles’s employment.

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Ramos v. Super. Ct.

Constance Ramos, an experienced litigator and patent practitioner with a doctorate in biophysics, was hired as an “Income Partner” at the law firm Winston & Strawn, LLP (Winston).  After allegedly being denied recognition for her work, excluded from opportunities for career advancement, evaluated based on the success of her male colleagues, and denied compensation and bonuses to which she was entitled, Ramos sued Winston, asserting various causes of action under state law for discrimination, retaliation, wrongful termination, and anti-fair-pay practices. 

Winston moved to compel arbitration pursuant to the partnership agreement Ramos signed shortly after joining the firm.  In opposing the motion, Ramos argued she was an “employee” of Winston, not a partner, and therefore Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz) applied to the arbitration agreement.  Ramos further argued the arbitration provision in the partnership agreement failed to meet the minimum requirements set forth in Armendariz for arbitration of unwaivable statutory claims.  The trial court disagreed, finding Ramos was “in a partnership relationship” for purposes of the motion to compel.  The trial court severed provisions of the arbitration agreement related to venue and cost-sharing, and granted Winston’s motion.  Ramos sought a writ of mandate, and we granted review.            

We conclude the trial court erred in compelling Ramos to submit her claims to arbitration.  Under the framework set forth by our Supreme Court in Armendariz, we find the parties’ arbitration agreement is unconscionable.  Further, because we cannot remove the taint of illegality by severing the unlawful provisions without altering the nature of the parties’ agreement, we must void the entire agreement to arbitrate.  Accordingly, we reverse and remand for Ramos to proceed with her claims in superior court.

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Friday, November 2, 2018

AMN Healthcare, Inc. v. Aya Healthcare Services, Inc.

Plaintiff AMN Healthcare, Inc. (AMN) appeals (1) the judgment in favor of defendants Kylie Stein, Robin Wallace, Katherine Hernandez, Alexis Ogilvie (sometimes collectively, individual defendants) and Aya Healthcare, Inc. (Aya) (sometimes individual defendants and Aya are collectively referred to as defendants); (2) the injunction preventing AMN from enforcing its nonsolicitation of employee provision against individual defendants and its other former employees; and (3) the award of attorney fees in favor of defendants. 

AMN and Aya are competitors in the business of providing on a temporary basis healthcare professionals, in particular "travel nurses," to medical care facilities throughout the country.  Individual defendants were former "travel nurse recruiters" of AMN who, for different reasons and at different times, left AMN and joined Aya, where they also worked as travel nurse recruiters. 

As a condition of employment with AMN, individual defendants each signed a Confidentiality and Non-Disclosure Agreement (CNDA), which, as discussed post, included a provision preventing individual defendants from soliciting any employee of AMN to leave the service of AMN for at least a one-year period.  Significant in the instant case, a travel nurse was deemed to be an employee of AMN while on temporary assignment through AMN.            

AMN sued defendants, asserting various causes of action including breach of contract and misappropriation of confidential information, including trade secrets as set forth in the Uniform Trade Secrets Act, Civil Code sections 3426 et seq. (UTSA).  Defendants filed a cross-complaint for declaratory relief and unfair business competition.

Defendants moved for summary judgment of AMN's operative complaint and of their own cross-complaint.  Defendants claimed that the nonsolicitation of employee provision in the CNDA was an improper restraint on individual defendants' ability to engage in their profession, in violation of Business and Professions Code section 16600; that as such, AMN's contract-based causes of action failed as a matter of law; and that AMN's tort-based causes of action also failed as a matter of law because the information allegedly used by defendants to recruit travel nurses was not protected. 

The trial court agreed with defendants, granted summary judgment against AMN, and granted summary adjudication of defendants' declaratory relief cause of action in their cross-complaint.  After granting such relief, the court subsequently enjoined AMN from enforcing the nonsolicitation of employee provision in the CNDA as to any former (California) AMN employee and awarded defendants attorney fees.           

As we explain, we independently conclude the court properly granted summary judgment of AMN's operative complaint and of defendants' declaratory relief cause of action in their cross-complaint.  We further conclude the court properly exercised its discretion when it enjoined AMN from attempting to enforce its nonsolicitation of employee provision with respect to its former employees, including individual defendants, and when it awarded defendants their reasonable attorney fees.

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Sali v. Corona Regional Med. Ctr.

The panel filed an order denying a petition for panel rehearing and a petition for rehearing en banc, in a case in which the panel reversed the district court’s denial of class certification in a putative class action.

Judge Bea, joined by Judges Bybee, Callahan, Ikuta, and Bennett, dissented from the denial of rehearing en banc because he would hold that the panel erred in concluding that expert opinion testimony need not be admissible evidence in order to be considered at the class certification stage. Judge Bea wrote that the panel’s decision goes against the court’s own binding precedent, the law of four other circuits, and the Supreme Court’s clear guidance on the issue.

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Nunies v. HIE Holdings, Inc.

The Americans with Disabilities Act Amendments Act expanded the scope of the Americans with Disabilities Act's "regarded-as" definition of disability. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity, but under the ADAAA the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Nunies v. HIE Holdings, Inc. - filed Nov. 1, 2018 
Cite as 2018 S.O.S. 16-16494 

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Thursday, November 1, 2018

Brown v. Ralphs Grocery Company

A plaintiff bringing a wage and hour claim under the Private Attorneys General Act must state facts and theories supporting the alleged violations not implied by reference to the Labor Code and give the employer sufficient information to assess the seriousness of the alleged violations. However, a bare allegation of a violation of an employer's duty to maintain accurate and complete wage statements is itself sufficient. A plaintiff does not need to specify Labor Code Sec. 558 in her PAGA notice and can proceed with a claim for remedies under that section so long as she gave adequate notice of a violation for which Sec. 558 provides a remedy.

Brown v. Ralphs Grocery Company - filed Oct. 31, 2018, Second District, Div. Five 
Cite as 2018 S.O.S. 5223 

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