Employment, Private Attorney General: Trial Court Did Not Abuse Its Discretion Nor Err In Denying Fees And Costs To Plaintiffs Under PAGA

Plaintiffs Prevailed At Trial On Their California Labor Code Section 1102.5 Claims, But Failed To Pursue Their PAGA Section 2699 Claim, Thereby Sealing Their Fate For PAGA-Related Fees and Costs

        In order to prevail on a PAGA-related fees and costs motion, a plaintiff first has to pursue a PAGA claim and prevail.

        In Nolasco v. Scantibodies Laboratory, Inc., Case No. D072945 (4^th Dist., Div. 1 February 26, 2019) (unpublished), Plaintiffs sued employer Defendant for retaliation under section 1102.5 of the California Labor Code, and included a claim under section 2699 – the Private Attorney General Act of 2004 (PAGA).

        PAGA authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations. The penalty may be recovered through a civil action brought by an aggrieved employee on behalf of himself/herself and other current or former employees.

        At trial, the jury found that Plaintiffs proved their section 1102.5 retaliation claims, and also awarded punitive damages under those retaliation claims. With regard to their PAGA claim, however, Plaintiffs failed to pursue their PAGA claim before the jury, and their verdict forms did not address PAGA – thereby abandoning and/or waiving their PAGA claims.

        Because Plaintiffs had abandoned and never tried their PAGA claim – though prevailing on the section 1102.5 predicate base for PAGA – the trial court determined Plaintiffs did not prevail on the PAGA claim. As a result, the trial court denied their motion for fees.

        On appeal, without providing relevant authority in support or substantive statutory analysis, Plaintiffs argued that fees are due to “[a]ny employee who prevails in action” and that they could recover PAGA fees generally, without recovering under PAGA specifically.

        The 4/1 DCA disagreed with Plaintiffs' contention and affirmed the trial court’s order – finding the trial court’s assessment to be supported by the record. Plaintiffs had taken no steps to pursue PAGA penalties, had failed to prove compliance with section 2699.3 notice requirements, and had abandoned their PAGA claim. As such, Plaintiffs did not prevail under PAGA and were not entitled to PAGA-related fees and costs.