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Mendez v. Tween Brands

June 30, 2010

HOLLI MENDEZ, AN INDIVIDUAL, AND KATHRYN HAWKES, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED AND ON BEHALF OF THE STATE OF CALIFORNIA LABOR AND WORKFORCE DEVELOPMENT AGENCY AS A PRIVATE ATTORNEY GENERAL, PLAINTIFFS,
v.
TWEEN BRANDS, INC., A DELAWARE CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present action, Plaintiffs seek monetary damages and civil penalties against Defendant Tween Brands, Inc. for violations of both state and federal labor laws. Plaintiffs assert individual, class action, and collective action claims, as well as claims brought under the Private Attorney General Act of 2004 ("PAGA") (Cal. Labor Code § 2698 et seq.). Plaintiffs contend in their First Amended Complaint ("FAC") that PAGA causes of action do not require class certification.

Defendant now moves to strike that portion of the FAC pursuant to Federal Rule of Civil Procedure 12(f).*fn1 In the alternative, Defendant requests an order pursuant to Rule 23(d)(1) that PAGA claims must comply with Rule 23 class certification requirements. For the following reasons, both the motion to strike and the motion for an order that PAGA claims are governed by Rule 23 are denied.*fn2

BACKGROUND

Plaintiffs Mendez and Hawkes filed their FAC against Defendant on March 29, 2010. While the FAC asserts multiple causes of action, those at issue here seek to recover civil penalties pursuant to the Labor Code Private Attorneys General Act of 2004 ("PAGA").*fn3 Cal. Lab. Code §§ 2698, et seq.

This Court has both federal question and diversity jurisdiction over this matter as well as jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. 1332(d).

PAGA allows "aggrieved employees" to act as private attorneys general by bringing claims for civil penalties against employers for violations of the Labor Code. Cal. Lab. Code § 2699(a). Seventy-five percent of any funds recovered go to the Labor and Workforce Development Agency ("LWDA") and the remaining twenty-five percent go to the aggrieved employees. Id. § 2699(i). A PAGA claim does not preclude "an employee's right to pursue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part." Id. § 2699(g)(1).

PAGA sets out procedural requirements that must be met before a claim can be brought. The proposed plaintiff must notify the LWDA of the alleged violations by certified mail, and can only pursue a claim if the LWDA either declines to investigate or neglects to respond within 33 days. Id. § 2699.3(1). If the LWDA decides to investigate, it must do so within 120 days. Should it fail to investigate or decide not to issue a citation, the proposed plaintiff may then bring a cause of action. Id. § 2699.3(a)(2)(B).

Defendant does not argue that Plaintiffs have failed to meet these procedural requirements. Rather, Defendant asserts that unless Plaintiffs comply with Rule 23 class certification requirements, in addition to the PAGA requirements, their claim cannot be heard in federal court.

STANDARD

The Court may strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (rev'd on other grounds Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)) (internal citations and quotations omitted). Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.

ANALYSIS

The California Supreme Court held in Arias v. Superior Court that PAGA claims need not satisfy class action requirements.

46 Cal. 4th 969 (2009). The Arias court found, inter alia, that an employee plaintiff brings a claim "as the proxy or agent of the state's labor law ...


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