Defendant Smart & Final Stores LLC’s Demurrer to Complaint

 Plaintiff alleges she “was employed by Defendants from on or about April 2016 until May 17, 2018”.  Complaint, ¶ 1; see also ¶ 9 (identifying the “liability period” as  5/15/18 to the present) and Plaintiff’s RJN, Exhibit A at ¶¶ 23 and 25.

On May 15, 2019, Plaintiff gave notice to the LWDA of alleged PAGA violations.  On May 17, 2019, she filed various wage and hour claims against Defendant in the Central District of California, Shahandeh v. Smart & Final Stores, LLC (C.D. Cal), Case No. 8-19-cv-00949.  On August 1, 2019, she filed this action, alleging various PAGA violations.

Defendant demurs to the complaint in this action and each cause of action therein on the ground that the claims are time-barred.

“The statute of limitations for PAGA claims is one year.” Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.   However, before bringing a claim under PAGA, the aggrieved employee must give written notice to the LWDA and the employer of the specific provisions allegedly violated and the facts and theories underlying the claims, as Plaintiff did here.  Lab. Code § 2699.3. The LWDA then has 60 days to notify the employee if it intends to investigate the alleged violation. The employee “may commence a civil action pursuant to Section 2699” if the agency provides notice that it will not investigate the claim, or no notice at all, “within 65 calendar days of the postmark date of the notice given.”  Because Plaintiff gave her LWDA notice on May 15, 2019, she had until July 19, 2019 (65 days later) in which to file her complaint.  However, her complaint was not filed until nearly two weeks later.

In addition to the 65 extra days, the statute can be further extended another 60 days for an employee to “amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.” Lab. Code § 2699.3.

Plaintiff argues that her this action, filed on August 1, 2019 was, somehow, an “amendment” of the federal complaint she filed in May and falls within the additional 60 days.

“The basic rules of statutory construction are well established. When construing a statute, a court seeks to determine and give effect to the intent of the enacting legislative body. We first examine the words themselves because the statutory language is generally the most reliable indicator of legislative intent. The words of the statute should be given their ordinary and usual meaning and should be construed in their statutory context. If the plain, commonsense meaning of a statute’s words is unambiguous, the plain meaning controls.”  Catlin v. Superior Court (2011) 51 Cal.4th 300, 304 (internal quotation marks and citations omitted). Section 2699.3 says a plaintiff “may as a matter of right amend an existing complaint to add a cause of action arising under this part at any time within 60 days of the time periods specified in this part.”  (Emphasis added.)  The state court complaint filed on August 1, 2019 is not an “amendment” of the federal complaint nor does it “add” a cause of action.  The statute of limitations on the PAGA claims made in this action expired on July 19, 2019.

Defendant’s demurrer is sustained without leave to amend.

Defendant’s and Plaintiff’s RJNs are granted.