Wage Law

In spite of clear authority under the Caliber Bodyworks (134 Cal.App.4th 365) decision, defense lawyers continue to argue that plaintiffs cannot file suit for remedies such as waiting time penalties, meal and rest period pay, and other claims under Labor Code §§ 203, 226, 226.7, etc. Every so often, a trial court agrees. To our knowledge, no appellate court has ever agreed.

Yesterday, in an unpublished opinion, yet another Court of Appeal (addressing a trial court ruling that was issued pre-Caliber Bodyworks) upheld an employee's right of private action, without any regard for or compliance with the Labor Code Private Attorneys General Act of 2004 (PAGA), to seek damages and statutory penalties for those various Labor Code violations. Dunlap v. Superior Court (Bank of America) (2nd District, Div. 3, 7/27/2006, Case No. B185247)

After a motion to strike was granted by Los Angeles County Superior Court Judge Judith Chirlin, Dunlap filed a petition for writ of mandate, seeking the issuance of a writ directing the trial court to vacate its order granting the motion to strike and to enter a new order denying the motion. The Court of Appeal granted the writ.

Plaintiff Omar Dunlap, a former employee of defendant Bank of America, N.A. (“Bank”), seeks a writ of mandate directing the trial court to vacate its order granting the Bank’s motion to strike certain portions of Dunlap’s first amended class action complaint and to enter an order denying the motion to strike. The essential issue presented is whether the trial court properly struck Dunlap’s claims for statutory penalties on the ground he failed to exhaust his administrative remedies in accordance with the Labor Code Private Attorneys General Act of 2004 (PAG Act) (Lab. Code, § 2698 et seq.). Dunlap’s second through fifth causes of action, which are at issue herein, did not seek any penalties which previously were recoverable only by the Labor and Workforce Development Agency (LWDA). The only penalties being sought therein were various statutory penalties, which penalties already were recoverable by employees under the Labor Code prior to the adoption of the PAG Act. Therefore, Dunlap was not required to comply with the PAG Act’s administrative prerequisites to filing suit before pursuing statutory penalties in said causes of action. Accordingly, the trial court erred in granting the motion to strike. We grant the relief requested.

The decision took quite some time to reach, as far as writ proceedings go. The petition for writ of mandate was filed on August 19, 2005; the case was argued on January 18, 2006; and the opinion was issued on July 27, 2006. Govern yourselves accordingly if you are before this panel, as they noted in April that "[d]ue to the press of other court business and the complexity of the issue in this case, a brief additional amount of time is needed to complete and file the opinion in this matter." You can download the opinion here in pdf or Word format.