In Arias v. Superior Court, 46 Cal. 4th 969 (2009), the California Supreme Court ruled that Private Attorneys General Act (PAGA) actions need not satisfy class action requirements, and in the fourteen years since, PAGA plaintiffs have routinely (and often successfully) resisted attempts to apply class action principles to PAGA actions.  A recent unpublished California Court of Appeal decision bucks that trend by lending support for an implied adequacy requirement for PAGA plaintiffs and counsel.

In Stone v. Kim, 2023 WL 8011417 (Cal. Ct. App. Nov. 20, 2023), the California Court of Appeal affirmed the dismissal of a PAGA claim brought by a plaintiff who sought to prosecute the action in pro per.  As the Court explained, a PAGA plaintiff represents the interests of the state labor enforcement agency, so by proceeding in pro per, the plaintiff (who was not an attorney) was engaged in the unauthorized practice of law.  Therefore, the trial court properly sustained the demurrer.  Id. at *1

The Court could have stopped there.  However, it continued by analogizing PAGA actions to qui tam actions brought under the False Claims Act (FCA)—a context it found “instructive.”  Id. at *2.  The Court cited U.S. ex rel. Rockefeller v. Westinghouse Electric Co., 274 F. Supp. 2d 10, 16 (D.D.C. 2003) for the point that, “[g]iven the potential” for the plaintiff to bind the government in such actions, “the government must have adequate representation,” and therefore, “qualified legal counsel.”  Id.

The court in Rockefeller elaborated by analogizing FCA claims to class actions: “Like . . . a class member in a class action suit, a lay relator in a FCA action needs qualified legal counsel to ensure that the real party at interest, the United States, is adequately represented,” and “[t]he need for adequate legal representation on behalf of the United States is obviously essential.”  Rockefeller, 274 F. Supp. 2d at 16.  Stone found this reasoning also “applies to claims under [PAGA]”—and for good reason.  Stone, 2023 WL 8011417, at *2.  Like FCA relators, PAGA plaintiffs “represent and can bind the government, which needs adequate representation.”  Id.

If PAGA implicitly requires that the government be represented by adequate counsel, it may stand to reason that it must also be represented by an adequate plaintiff.  Just as the government may be prejudiced by inadequate legal counsel, it may also be prejudiced if its interests are represented by a conflicted plaintiff, or a plaintiff who is unaware of or unwilling to undertake her responsibilities as a party.  Because a PAGA plaintiff acts in a law enforcement capacity on behalf of the State of California, other criteria—such as convictions for felonies or crimes of moral turpitude—arguably should also be disqualifying.  See Cal. Gov. Code § 19572 (setting forth grounds for discipline of state civil service employees, up to and including termination).

While plaintiffs may object to any attempt to impose class action-type requirements in PAGA actions, by allowing a plaintiff to represent absent parties while aggregating together multiple alleged violations, PAGA raises similar challenges for the court system as class actions do.  At times, these similar challenges may call for similar solutions, and if the recent oral argument in Estrada v. Royalty Carpet Mills, Inc. is any indication, courts may be open to some prudential limits on PAGA actions not expressly spelled out in the statute’s text.  In this regard, requiring that the State of California be represented by adequate counsel and an adequate plaintiff could be low-hanging fruit.

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Photo of Ariel Brotman Ariel Brotman

Ariel Brotman is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and…

Ariel Brotman is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group. She represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and breach of contract litigation, in both the single-plaintiff and class-action context. She also counsels employers on a diverse range of workplace issues.

Ariel earned her J.D. from USC Gould School of Law, where she was a member of the Southern California Interdisciplinary Law Journal. During law school, she was also a clinical student in the University of Southern California Immigration Clinic. In addition, she served as a judicial extern to the Honorable Robert N. Kwan in the United States Bankruptcy Court, Central District of California.

Photo of Jonathan Slowik Jonathan Slowik

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state…

Jonathan Slowik represents employers in all aspects of litigation, with a particular emphasis in wage and hour class, collective, and representative actions, including those under the Private Attorneys General Act (PAGA). He has defended dozens of class, collective, and representative actions in state and federal trial and appellate courts throughout California and beyond. In addition to his core wage and hour work, Jonathan has defended employers in single-plaintiff discrimination, harassment, and retaliation cases, and in labor arbitrations. Jonathan also regularly advises clients on a wide range of compliance issues and on employment issues arising in corporate transactions.

Jonathan has deep experience representing clients in the retail and hospitality industries, but has assisted all types of clients, including those in the health care, telecommunications, finance, media, entertainment, professional services, manufacturing, sports, nonprofit, and information technology industries.

Jonathan is a frequent contributor to Proskauer’s California Employment Law Blog and has written extensively about PAGA on various platforms. He has been published or quoted in Law360, the Daily Journal, the California Lawyer, the Northern California Record, and the UCLA Law Review.

Jonathan received his B.A. from the University of Southern California in 2007, magna cum laude, and J.D. from UCLA School of Law in 2012, where he was a managing editor of the UCLA Law Review.