Seyfarth Synopsis: The Fifth District Court of Appeal held that under pre-reform PAGA, headless PAGA actions in which plaintiffs seek civil penalties only on behalf of other employees and not for violations they personally experienced are permitted.
The Fifth District Court of Appeal considered the meaning of pre-reform PAGA language stating that a PAGA action "may" be brought "on behalf of [the PAGA plaintiff] and other current or former employees." As the Court of Appeal framed it, "[t]he question is whether this text authorized [a PAGA plaintiff] to bring a lawsuit that seeks to recover civil penalties imposed for Labor Code violations suffered only by other employees," also known as a "headless PAGA action."
When initiating the lawsuit in 2019, the PAGA plaintiff sought civil penalties on behalf of himself and all other aggrieved employees. But in 2024, the PAGA plaintiff dismissed his individual PAGA claim, leaving only a request for civil penalties for harm suffered by other employees. The Court of Appeal recognized that the PAGA plaintiff strategically abandoned his individual PAGA claim "to avoid arbitrating [it] under the Federal Arbitration Act, as interpreted by Viking River." The employer filed a motion for judgment on the pleadings, contending that the PAGA plaintiff lacked standing to pursue the nonindividual PAGA claims, because he had dismissed his individual PAGA claim which the trial court denied.
After conceding that the word "and" is "usually ... interpreted as a conjunctive that means 'also' or 'an additional thing,'" the Court of Appeal held that "[i]n exceptional situations, however, it is sometimes 'fair and rational' to construe [the word] and disjunctively." As support that the word "and" actually means or in the pre-reform PAGA statute, the Fifth Appellate District found that "PAGA is not an ordinary statute, the problems it attempts to remedy are unusual, and Viking River drastically altered the legal landscape in which PAGA is applied." As such, the Court of Appeal held that under pre-reform PAGA, a plaintiff may bring a PAGA action seeking civil penalties (1) for the Labor Code violations suffered only by the plaintiff, (2) for the Labor Code violations suffered only by other employees, or (3) both.
Ultimately, the reach of the Fifth District's opinion is limited. The Court specifically stated that it was "not decid[ing] whether a headless PAGA action can be brought under the [amended] version of PAGA that has been in effect since July 1, 2024." Moreover, there is a split of authority among the Courts of Appeal on this issue, with Leeper and Williams reasoning that a PAGA claim is necessarily comprised of both an individual and nonindividual component.
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