On January 14, 2022, in Lehauli v. All Nippon Airways Co., Case No. 21STCV02847, Judge Holly J. Fujie of the Los Angeles Superior Court granted the defendant’s motion for judgment on the pleadings, finding that the plaintiff failed to allege sufficient facts in his pre-suit notice regarding his alleged Private Attorneys General Act (PAGA) claims. The decision illustrates how an inadequate notice may justify a dismissal with prejudice, under the right conditions.

Before filing a PAGA lawsuit, an “aggrieved employee” must first exhaust administrative remedies by filing a notice of his or her claims with the Labor and Workforce Development Agency (LWDA), setting forth the specific provisions of the Labor Code the employee alleges were violated, and the facts and theories to support the alleged violation. Cal. Lab. Code § 2699.3(a)(1)(A). The purpose of this provision is to give the LWDA an opportunity to evaluate whether to use its scarce resources on the alleged violations. The filing of a proper notice tolls the statute of limitations for a 65-day period, in which the LWDA may decide to investigate and prosecute the alleged violations itself.

Cases interpreting the “facts and theories” provision have not demanded a high degree of specificity, but they have made clear that the employee should do more than merely paraphrase the statute or parrot the elements of a cause of action. Thus, challenges to an LWDA notice share similarities with a demurrer or motion to dismiss for failure to plead sufficient facts in a complaint. And like demurrer or a motion to dismiss, the employee can often cure the defect by amending his or her deficient filing to alleged additional facts.

Lehauli illustrates a notable exception to this general rule. Citing authority from the California Court of Appeal, the court concluded that the statute of limitations was not tolled by the plaintiff’s boilerplate notice to the LWDA. Because the statute kept running, the plaintiff’s claims were time-barred on their face: PAGA claims are subject to a one-year statute of limitations and by the time the court ruled on the defendant’s motion more than a year had passed since the plaintiff separated from employment. The court therefore granted judgment on the pleadings, without leave to amend.

Lehauli illustrates that where a plaintiff’s LWDA notice is even arguably inadequate, defendants should consider challenging the sufficiency of the notice if more than a year has passed since the plaintiff separated employment. If the court agrees that the plaintiff did not give sufficient pre-notice to the state, that failure could dispose of the claims in their entirety.