Hutcheson v. Superior Court ( 2022 )

Filed 2/7/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
ANDREW HUTCHESON,
Petitioner,
v.
THE SUPERIOR COURT OF A159861
ALAMEDA COUNTY,
(Alameda County
Respondent;
Super. Ct. No. RG18894787)
UBS FINANCIAL SERVICES, INC.,
Real Party in Interest.
The Legislature enacted the Private Attorneys General Act of 2004
(Lab. Code, 1 § 2698 et seq., (PAGA)) for the “sole purpose” of increasing the
limited capability of the State of California to enforce violations of the Labor
Code. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 86
(Kim).) The statute authorizes “aggrieved employees” to file lawsuits on
behalf of the state seeking civil penalties for violations of the Labor Code, and
allocates 75 percent of the civil penalties recovered to the California Labor
and Workforce Development Agency (LWDA) and the remaining 25 percent to
all employees affected by the violation. (§ 2699, subd. (i); Moorer v. Noble
L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 742.) PAGA requires that before
All further statutory references are to the Labor Code unless
1
otherwise specified.
1
filing suit, the so-called PAGA plaintiff must submit notice of the alleged
violations to the LWDA and to the employer. (§ 2699.3, subd. (a).)
This case raises a narrow legal issue at the intersection of PAGA and
the judicially created doctrine of relation back, a doctrine which, in certain
circumstances, deems the claims in an amended complaint to have been filed
on the date of the initial complaint for purposes of the statute of limitations.
In this appeal, an aggrieved employee (the first employee) submitted notice of
alleged Labor Code violations by his employer to the LWDA in compliance
with PAGA and subsequently filed a complaint in superior court alleging a
PAGA claim. The first employee later sought to amend his complaint to
substitute in as the named plaintiff a different aggrieved employee (the
second employee) who had worked for the same employer. The issue before
us is whether the amended PAGA complaint (with the second employee as
the named plaintiff) can relate back to the original PAGA complaint where
the second employee submitted his PAGA notice after the original complaint
was filed. At stake is the length of time for which the employer may be liable
for statutory civil penalties if the alleged violations of the Labor Code are
proven to be true.
This issue was presented below in a motion for summary adjudication
brought by the employer on stipulated facts. The trial court granted the
motion, concluding that the doctrine of relation back does not apply to PAGA
claims in these circumstances. Because we conclude that the doctrine of
relation back may apply, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Stipulated Facts
The parties stipulated to the following facts:
2
Larry Van Steenhuyse (the first employee) worked for UBS Financial
Services, Inc. (UBS) as a financial advisor. On December 22, 2017, he gave
notice to the LWDA and UBS that he intended to seek penalties under PAGA
on behalf of himself and all aggrieved UBS financial advisors in California for
alleged Labor Code violations by UBS. He alleged that he and other financial
advisors routinely incurred reasonable and necessary business expenses for
travel, mileage, education, entertainment, and marketing, but were not
reimbursed by UBS, in violation of section 2802. He also alleged that UBS
failed to timely pay commissions to him and other financial advisors, in
violation of section 204.
Van Steenhuyse did not receive any response from the LWDA within
the statutorily required 65 days, and on the 66th day, February 26, 2018, as
permitted by statute (§ 2699.3, subd. (a)(2)), he filed suit in Alameda County
Superior Court against UBS alleging a single cause of action for penalties
under PAGA. The complaint, like the notice that Van Steenhuyse had
submitted to the LWDA and UBS, alleged that UBS violated section 2802, by
failing to indemnify financial advisors for business expenses, and violated
section 204 with respect to the timely payment of commissions.
Andrew Hutcheson (the second employee) also worked for UBS as a
financial advisor until he resigned his employment in December 2017. Like
Van Steenhuyse, he gave notice to the LWDA and UBS of his intent to seek
penalties under PAGA on behalf of himself and all aggrieved UBS financial
advisors in California for UBS’s alleged failure to reimburse business
expenses and timely pay commissions. Hutcheson submitted his notice on
April 18, 2018, and did not receive any response from the LWDA within 65
days, but he waited several months—until February 2019—to file his suit
against UBS. Like Van Steenhuyse, Hutcheson filed suit in Alameda County
3
alleging a single cause of action seeking penalties under PAGA for alleged
violations of sections 2802 and 204.
Van Steenhuyse’s and Hutcheson’s notices and complaints are worded
almost identically, and they make the same allegations of facts and theories
concerning UBS’s purported violations of sections 2802 and 204.
B. Proceedings in the Trial Court
In March 2019, Hutcheson filed a motion to intervene in Van
Steenhuyse’s lawsuit and replace Van Steenhuyse as the named plaintiff. 2
The parties stipulated to the filing of an amended complaint that added
Hutcheson as the named plaintiff and removed Van Steenhuyse. The parties
also stipulated to the dismissal of Van Steenhuyse’s PAGA claim with
prejudice and the dismissal of Hutcheson’s separate lawsuit without
prejudice. What the parties could not agree upon was whether the doctrine of
relation back could apply.
The amended complaint alleged that under the doctrine of relation back
the statute of limitations for Hutcheson’s claim as substitute plaintiff
extended back to December 22, 2016, which was one year before Van
Steenhuyse submitted his notice of intent. UBS disputed that the doctrine of
relation back applied, and the parties agreed to submit the issue for
resolution by the trial court in a motion for summary adjudication to be filed
by UBS based on stipulated facts. 3
2 According to the motion, Van Steenhuyse was “no longer able to bear
the financial burden and risk associated with serving as the named plaintiff
in the litigation,” but was concerned that dismissal of the complaint “would
operate as res judicata with respect to all claims for civil penalties” under
PAGA based on the violations alleged in his complaint. Hutcheson was
“ready, willing and able to take over prosecution” of the action.
3The motion for summary adjudication was filed under section 437c,
subdivision (t), of the Code of Civil Procedure, which authorizes a party to
4
In its motion, UBS argued that Hutcheson was barred from recovering
PAGA penalties for any alleged Labor Code violations that occurred before
December 19, 2017, one year and 65 days before Hutcheson had filed his own
suit. UBS argued that the amended complaint did not meet the general
requirements for relation back, and even if it did, the doctrine could not apply
because Hutcheson had not submitted his PAGA notice until after Van
Steenhuyse filed suit. UBS contended that Hutcheson was attempting to
circumvent the PAGA notice requirement by benefiting from a complaint that
was filed before he submitted his notice.
The trial court granted the motion. The court presumed, without
deciding, that the general requirements for relation back had been met, and
ruled that even so, the doctrine did not apply because allowing relation back
would frustrate the Legislature’s intent of requiring notice under section
2699.3, subdivision (a), as a precondition to filing a PAGA action. Hutcheson
filed a petition for writ of mandate, which raises the narrow issue whether
relation back can apply in the circumstances here, where a proposed
substitute plaintiff submitted PAGA notice after the filing of the original
complaint. 4
move for summary adjudication “of a legal issue . . . that does not completely
dispose of a cause of action.”
4We summarily denied Hutcheson’s petition after preliminary briefing.
Hutcheson then filed a petition for review in our Supreme Court, which was
granted. The matter was transferred back to us with instructions to direct
the superior court to show cause, which we have done. The matter has now
been fully briefed, and we have had the benefit of oral argument.
5
DISCUSSION
A. Applicable Law and Standard of Review
1. PAGA
The purpose of PAGA is to increase the LWDA’s limited enforcement
capability by authorizing aggrieved employees to enforce Labor Code
provisions on the agency’s behalf. (Kim, supra, 9 Cal.5th at p. 86.) An
aggrieved employee who files a suit under PAGA acts as the LWDA’s proxy,
and represents the “same legal right and interest as [the LWDA] in a
proceeding that is designed to protect the public,” rather than to benefit the
plaintiff or other private parties. (Amalgamated Transit Union, Local 1765,
AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003 (Amalgamated).) A
representative action under PAGA is “a type of qui tam action,” and the
LWDA, as the government entity on whose behalf the plaintiff has filed suit
“is always the real party in interest.” (Iskanian v. CLS Transportation Los
Angeles, LLC (2014) 59 Cal.4th 348, 382.)
The civil penalties imposed under PAGA “ ‘ “are intended to punish the
wrongdoer and to deter future misconduct.” ’ ” (Kim, supra, 9 Cal.5th at p.
86.) The portion of the civil penalties paid to the LWDA supplement the
agency’s funding for enforcing labor laws and for educating “employers and
employees about their rights and responsibilities” under the Labor Code.
(§ 2699, subd. (i).)
The provisions of PAGA that pertain to the issue before us concern the
prerequisites for standing, the requirement of notice, and the statute of
limitations. We describe them briefly.
First, standing. The Labor Code establishes two criteria for standing
as an “aggrieved employee” who can represent the state as a PAGA plaintiff
and sue “on behalf of himself or herself and other current or former
6
employees.” (§ 2699, subd. (a).) An aggrieved employee is “someone ‘who was
employed by the alleged violator’ and ‘against whom one or more of the
alleged violations was committed.’ ” (Kim, supra, 9 Cal 5th at pp. 83-84,
quoting § 2699, subd. (c)); see also Williams v. Superior Court (2017) 3
Cal.5th 531, 546 [standing provision in PAGA allows suit to be “brought by
any ‘aggrieved employee’ ”].)
Second, notice. An employee who meets the standing requirements in
section 2699, subdivision (c) and who seeks PAGA penalties must notify the
LWDA and the employer of the specific Labor Code provisions that the
employer allegedly violated, as well as the facts and theories supporting the
claim. (§ 2699.3, subd. (a)(1)(A).) Then, “[i]f the [A]gency does not
investigate, does not issue a citation, or fails to respond to the notice within
65 days, the employee may sue. (§ 2699.3, subd. (a)(2).)” (Kim, supra, 9
Cal.5th at p. 81.) Providing the required notice “is a mandatory precondition
to bringing a PAGA claim.” (Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th
42, 59 (Esparza).)
Finally, a PAGA action is subject to a one-year statute of limitations.
(Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824 (Brown), citing Code
Civ. Proc. § 340, subd. (a).) The 65-day period following notice to the LWDA
and employer is “not counted as part of the time limited for the
commencement of the civil action to recover penalties” under PAGA.
(§ 2699.3, subd. (d).)
2. Relation Back
Under the doctrine of relation back, a court deems an amended
complaint to have been filed at the time of an earlier complaint. The doctrine
requires that the amended complaint rest on the same general set of facts,
7
involve the same injury, and involve the same “instrumentality” or cause of
injury. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.)
Relation back may apply to amendments that substitute a plaintiff.
(Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243.) For
example, if a plaintiff is determined to have lacked standing, or if a plaintiff
loses standing after the complaint is filed, the plaintiff may amend the
complaint to substitute a new plaintiff with standing. (Ibid.)
Relation back may apply to amended complaints. An amended
complaint relates back to the original complaint even if the plaintiff alleges a
new legal theory or cause of action, so long as the amended complaint is
based on the same general set of facts. (Pointe San Diego Residential
Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195
Cal.App.4th 265, 277.) To determine whether an amended complaint rests on
the same general set of facts for purposes of the statute of limitations, the
most important consideration is whether the original pleading gave the
defendant adequate notice of the claim. (Ibid.) “ ‘The policy behind statutes
of limitations is to put defendants on notice of the need to defend against a
claim in time to prepare a fair defense on the merits. This policy is satisfied
when recovery under an amended complaint is sought on the same basic set
of facts as the original pleading.’ ” (Ibid.)
3. Standard of Review
We review an order granting summary adjudication de novo. (Tucker
Ellis LLP v. Superior Court (2017) 12 Cal.App.5th 1233, 1240.)
B. Analysis
Hutcheson argues that the amended complaint alleges the same
general set of facts as Van Steenhuyse’s original complaint (UBS’s failure to
reimburse financial advisors for necessary business expenditures and its
8
failure to timely pay commissions), alleges the same injury (the deprivation of
Labor Code rights under sections 2802 and 204, giving rise to PAGA civil
penalties), and refers to the same instrumentality (that is, the cause of injury
was UBS’s unlawful reimbursement and compensation policies). Hutcheson
and Van Steenhuyse met the notice requirement for PAGA plaintiffs: each
provided notice of the pertinent facts and theories to the LWDA and to UBS,
though Hutcheson provided his notice about four months after Van
Steenhuyse. Hutcheson argues that because he and Van Steenhuyse pleaded
their claims on behalf of the LWDA, which was the real party in interest, the
substitution of Hutcheson as plaintiff did not prejudice UBS, which had been
on notice of the claims since Van Steenhuyse alleged them in his December
2017 PAGA notice almost two years before UBS stipulated to the filing of the
amended complaint. Hutcheson contends this is enough for relation back.
Like the trial court, we presume without deciding that the three
criteria for relation back are met. But unlike the trial court, we conclude that
PAGA does not bar the application of the doctrine in this case.
At the time Van Steenhuyse filed his original complaint, in February
2018, Hutcheson met the standing requirements for an aggrieved employee
under section 2699, subdivision (c). That is because Hutcheson was a former
employee of UBS, and the alleged violations had also been committed against
him. (Kim, supra, 9 Cal.5th at pp. 83-84.) Although the LWDA was the real
party in interest in Van Steenhuyse’s case, Hutcheson, like Van Steenhuyse,
was an aggrieved employee for purposes of Van Steenhuyse’s case: he stood
to recover civil penalties if Van Steenhuyse’s case were proved. Hutcheson
could not himself have filed suit in February 2018, because he had not
submitted the required notice under section 2699.3, but he fulfilled the notice
requirement shortly thereafter. Indeed, by the time he substituted in for Van
9
Steenhuyse as plaintiff in this case, he had filed his own suit. 5 The
substitution of Hutcheson for Van Steenhuyse does not expand the scope of
the original complaint filed by Van Steenhuyse. The LWDA remains the real
party in interest, and UBS has had notice since December 2017 of the facts
and theories underlying the claims.
UBS correctly points out that nothing in the statutory language of
PAGA explicitly permits Hutcheson to take over Van Steenhuyse’s action.
But nothing in the statute prohibits it, either. The submission of notice to
the LWDA and the employer is a mandatory precondition for acting as
plaintiff in a PAGA suit, and Hutcheson met that requirement before he
became a plaintiff in his own suit, and before he became a plaintiff in the suit
that Van Steenhuyse had filed. We see no bar to Van Steenhuyse, who acts
as the proxy of the LWDA, substituting a qualified plaintiff to take his place
as the LWDA’s proxy.
Further, to conclude otherwise would create a “hurdle[ ] that impede[s]
the effective prosecution of representative PAGA actions,” thereby
“undermin[ing] the Legislature’s objectives.” (Kim, supra, 9 Cal.5th at p. 87.)
Our Supreme Court has made clear that “allow[ing] employers to reduce their
liability for civil penalties, without state oversight” by curtailing a plaintiff’s
ability to pursue PAGA claims is “contrary to PAGA’s goal of strengthening
Labor Code enforcement.” (Id. at p. 88.) Thus, in Kim, the Supreme Court
held that plaintiffs do not lose standing to bring PAGA representative claims
even when they settle their individual claims for relief. (Id. at p. 90.)
5 There is apparently no dispute that Hutcheson gave timely notice
under PAGA and that his separately-filed lawsuit was timely filed. The
parties disagree as to the time period covered by his suit, but we need not
address that issue.
10
We are not persuaded by UBS’s arguments that relation back could not
apply here. UBS’s arguments appear to rest on the contention that the sole
effect of the LWDA’s lack of response to Hutcheson’s notice was that
Hutcheson was deputized to bring a particular action on the LWDA’s behalf
covering a particular period that was defined by Hutcheson’s notice. We take
a broader view of the potential role of an aggrieved employee who has
provided PAGA notice, just as other courts have done in recent decisions. For
example, in Amaro v. Anaheim Arena Management, LLC (2021) 69
Cal.App.5th 521 (Amaro), the Court of Appeal held that a PAGA plaintiff may
release PAGA claims outside the limitations period of her own PAGA claim
by means of a court-approved settlement. (Id. at p. 543.) Although the
settling plaintiff in Amaro did not submit her PAGA notice until February
2017 (id. at p. 541), the settlement could properly release similar PAGA
claims that were covered by complaints that had been filed earlier by other
plaintiffs, including one filed in December 2014. (Id. at pp. 529-530.) In so
ruling, the court rejected the suggestion that a plaintiff’s notice under PAGA
“established the temporal scope” of the plaintiff’s authority to act on behalf of
the LWDA, such that plaintiffs are authorized only to pursue or settle PAGA
claims that arise within the year before notice was submitted. (Id. at p. 543.)
The Court of Appeal observed that nothing in the statute prohibited the
settling plaintiff from releasing PAGA claims beyond the limitations period of
her claim, and concluded that allowing her to do so was consistent with
PAGA’s purposes. (Id. at p. 541.)
In Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56 our colleagues
in Division Four likewise took an expansive view of the role of a PAGA
plaintiff as a proxy of the state. The court held that, given the premise that
PAGA allows concurrent separate lawsuits, it follows that where two PAGA
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actions involve overlapping claims and settlement is proposed in one of them,
the representative plaintiff in the other action “may seek to become a party to
the settling action and appeal the fairness of the settlement as part of his or
her role as an effective advocate for the state.” (Id. at p. 73.)
UBS argues that in light of what it takes to be the limited scope of
Hutcheson’s deputization, allowing Hutcheson to “take over Van
Steenhuyse’s claim” by means of relation back would “reflect an
impermissible assignment” by Van Steenhuyse to Hutcheson of a claim in
which Van Steenhuyse had no assignable interest. UBS relies on
Amalgamated, in which our Supreme Court rejected the argument of labor
unions who sought to sue under PAGA as the assignees of more than 150
aggrieved employees. (Amalgamated, supra, 46 Cal.4th at pp. 998-999,
1003.) Our Supreme Court ruled that these purported assignments were
invalid because the employees had no assignable interests. (Id. at p. 1003.)
Recognizing that that under Civil Code section 954, a cause of action is
assignable “if it arises out of a legal obligation or a violation of a property
right,” our high court held that PAGA “does not create property rights or any
other substantive rights” and that because aggrieved employees have no
property rights in their PAGA claims, they cannot assign them to others.
(Ibid. [noting that the court had previously held that “the right to recover a
statutory penalty may not be assigned”].) Further, the union could not sue on
behalf of its members under the doctrine of associational standing because
the union was not an “aggrieved employee” as defined by PAGA and could not
satisfy the requirements for PAGA standing. (Id. at pp. 1004-1005.)
But Amalgamated is unlike this case, where there is no issue of
assignment. Van Steenhuyse does not purport to assign his PAGA claim to
Hutcheson or anyone else. Van Steenhuyse and Hutcheson each have
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standing as aggrieved employees and the LWDA remains the real party in
interest in this lawsuit regardless of the identity of the named plaintiff.
UBS also argues that application of the relation back doctrine would
frustrate the Legislature’s intent to require compliance with administrative
procedures (that is, the notice requirement of section 2699.3, subdivision (a),
as a condition to filing suit). We disagree. Notice serves two purposes: it
allows the LWDA “to decide whether to allocate scarce resources to an
investigation,” and it allows the employer to submit a response to the LWDA
which can inform the agency’s decision. (Williams, supra, 3 Cal.5th at p. 546,
citing § 2699.3, subd. (a)(1)(B).) Those purposes have been met here: the
LWDA and UBS have had notice of the alleged violations at issue in this case
since Van Steenhuyse submitted his notice in December 2017.
UBS relies on Brown, supra, 28 Cal.App.5th 824, a case that lends it
little support. In Brown, the Court of Appeal concluded that later-noticed
PAGA claims could relate back to the adequately noticed and alleged claim in
an earlier complaint, even if the later-noticed claims alleged violations of
different sections of the Labor Code. (Id. at pp. 841-842.) The matter was
remanded for the trial court to consider whether the later-noticed claims
rested on the same set of facts, involved the same injury, and referred to the
same instrumentality as the original claim. (Ibid.)
UBS also relies on Esparza, supra, 36 Cal.App.5th at page 61, which is
nothing like the case before us. In Esparza, a plaintiff asserted a PAGA
claim for the first time in a second amended complaint, filed two years after
the original complaint. The Court of Appeal concluded that the PAGA claim
had properly been struck by the trial court as untimely. (Id. at p. 47.) The
LWDA had received no notice before the original complaint was filed, and the
notice that was eventually provided to the LWDA was untimely because it
13
was submitted more than a year after the allegedly illegal practice had
ended. (Id. at p. 60.) Here, in contrast, the LWDA and UBS received notice
of the alleged violation before the original complaint was filed, and while the
practices at issue were still in force.
In arguing that relation back would frustrate the PAGA notice
requirement, UBS complains that allowing relation back grants Hutcheson
“more time to recover civil penalties than the LWDA itself would have.” It is
true that if the amendment relates back, then Hutcheson and the LWDA can
potentially recover penalties over a longer period than they could under
Hutcheson’s separate complaint, which was filed in February 2019. But
relation back would not grant the LWDA or Hutcheson or any other
aggrieved employees the potential for any more than they had under Van
Steenhuyse’s original complaint, which was filed in February 2018. And if
relation back does not apply, UBS avoids exposure to potential liability for
civil penalties over some period of time, simply because Van Steenhuyse
relinquished his role as a representative plaintiff. The result would be a
weakening of the punitive and deterrent force of PAGA. To bar the
application of relation back would therefore be “contrary to PAGA’s goal of
strengthening Labor Code enforcement.” (Kim, supra, 9 Cal.5th at p. 88.) 6
6UBS refers to several PAGA decisions issued by federal courts. These
opinions are not binding on this court. Moreover, they are all distinguishable
from this case. For example, UBS cites cases in which courts did not permit a
PAGA claim to relate back to a civil complaint that was filed before the
LWDA or employer had received statutory notice as required by PAGA.
Here, however, the LWDA and UBS were on notice of the claims from Van
Steenhuyse’s original notice. (See, e.g., Culley v. Lincare Inc. (E.D.Cal. 2017)
236 F.Supp.3d 1184, 1192 [a plaintiff’s PAGA claims cannot relate back to a
complaint that the plaintiff filed before the LWDA or employer had notice of
the PAGA claims]; Mazzei v. Regal Entertainment Group (C.D.Cal. 2013)
2013 WL 6633079, *4-5 [new plaintiff’s PAGA claims cannot relate back to a
14
In sum, we conclude that if the trial court finds that the claims in the
amended PAGA complaint here rest on the same general set of facts, involve
the same injury, and refer to the same instrumentality as the claims in the
original complaint filed by Van Steenhuyse (which the trial court presumed
to be the case, and which UBS does not contest in connection with this writ
proceeding), then the relation back doctrine applies, and Hutcheson can
assert claims on behalf of the LWDA for violations going back to December
22, 2016. In other words, the mere fact that Hutcheson’s PAGA notice was
submitted after Van Steenhuyse’s does not bar the application of the doctrine
complaint filed by a different plaintiff who had not timely submitted PAGA
notice]; Harris v. Vector Marketing Corp. (N.D.Cal. 2010) 2010 WL 56179, *2-
3 [no relation back of amended complaint where plaintiff (1) alleged a PAGA
claim in original complaint but had not satisfied the notice requirement, (2)
later submits notice—but only after the limitations period has expired, and
(3) amends complaint and seeks to have the amended complaint relate back
to the original]; Moreno v. Autozone, Inc. (N.D.Cal. 2007) 2007 WL 1650942,
*4 [similar to Harris].)
UBS also cites cases in which federal courts disallow the substitution of
a plaintiff in a PAGA case, but in those cases the proposed substitute plaintiff
did not provide PAGA notice until more than one year after the termination
of employment, which was after the expiration of the statute of limitations.
(Bush v. Vaco Technology Services, LLC (N.D.Cal. 2018) 2018 WL 2047807,
*13; Estate of Harrington v. Marten Transport Ltd. (C.D.Cal. 2017) 2017 WL
5513635, *4.) That is not the case here, where Hutcheson submitted his
notice only a few months after he left his employment, well within the statute
of limitations.
Another case on which UBS relies, Wong v. AT & T Mobility Services
LLC (C.D.Cal. 2012) 2012 WL 8527485, is distinguishable because it arose
where the original plaintiff (unlike Van Steenhuyse) failed to provide
effective notice under PAGA and sought to substitute in “a new, unidentified
aggrieved employee” who had not yet begun the PAGA notice process. (Id. at
*3.)
15
of relation back to an amended complaint that seeks to substitute Hutcheson
as the representative plaintiff in this action.
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of
mandate issue, directing respondent court to vacate its order of February 21,
2020 granting real party in interest’s motion for summary adjudication, and
to enter a new order denying the motion. Costs are awarded to petitioner.
16
_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A159861, Hutcheson v. Superior Court
17
Court: Alameda County Superior Court
Trial Judge: Hon. Winifred Y. Smith
Clapp and Lauinger LLP, James F. Clapp, Marita M. Lauinger; Wynne Law
Firm, Edward J. Wynne; Altshuler Berzon LLP, Michael Rubin, Amanda
Lynch, for Petitioner
Gibson, Dunn & Crutcher LLP, Michele L. Maryott, Bradley J. Hamburger,
for Real Party in Interest
A159861, Hutcheson v. Superior Court
18