61 Cal.App.5th 658
Cal. Ct. App.2021Background
- Thomas Sargent was an environmental health-and-safety technician at Sonoma State University (CSU system) who reported lead and asbestos hazards and alleged retaliatory discipline, performance-improvement plans, suspensions, exclusion from work, and constructive discharge.
- He sued CSU and his supervisor Craig Dawson for retaliation (including Labor Code §§1102.5, 6310, 232.5) and brought a PAGA claim premised largely on Cal‑OSHA violations.
- A jury found for Sargent on three retaliation claims and on PAGA claims that certain Cal‑OSHA regulations were violated; jurors found the Cal‑OSHA violations affected up to 231 employees but did not personally affect Sargent.
- The trial court ordered reinstatement and expungement of records, awarded PAGA penalties totaling $2,905,200, and granted $7,793,030 in attorney fees (2.0 multiplier for some attorneys).
- On appeal the Court of Appeal rejected CSU’s broad immunity arguments, held PAGA liability against a public entity is limited by whether the underlying statutes provide penalties, reversed the PAGA penalties here, but affirmed the attorney‑fees award and the retaliation verdict (published in part).
Issues
| Issue | Plaintiff's Argument (Sargent) | Defendant's Argument (CSU/Dawson) | Held |
|---|---|---|---|
| 1. Does Ed. Code §66606.2 exempt CSU from PAGA? | §66606.2 does not bar PAGA; PAGA applies to CSU. | §66606.2 means statutes enacted after 1997 that apply generally to state agencies do not apply to CSU unless expressly stated, so PAGA does not apply. | Rejected defendant: §66606.2 does not create a blanket exemption; PAGA applies to CSU. |
| 2. Is CSU a “person” under PAGA and thus subject to §2699(f) default penalties for statutes that do not themselves provide penalties? | CSU is subject to PAGA and its penalties. | CSU (as a public entity) is not a “person” in §18 and thus not liable for PAGA’s default penalties. | Split rule: CSU is subject to PAGA claims premised on Labor Code provisions that themselves provide civil penalties, but not subject to PAGA’s default penalties under §2699(f) because public entities are not “persons” under §18. |
| 3. Was Sargent an "aggrieved employee" entitled to pursue representative PAGA claims and did he prove personal injury from Cal‑OSHA violations? | Under Kim, a plaintiff who suffered at least one unlawful practice has standing to pursue all PAGA claims; Sargent was aggrieved and proved Cal‑OSHA violations. | Even if standing exists, Sargent was not personally affected by the Cal‑OSHA violations so PAGA penalties based on those violations are improper. | Sargent had standing (he was personally affected by a §232.5 violation) but PAGA penalties based on Cal‑OSHA violations and §232.5 (which do not provide preexisting penalties) cannot be sustained; Cal‑OSHA regulatory penalties could not be imposed because jury found Sargent not personally affected. Overall PAGA penalties reversed. |
| 4. Did the trial court err in excluding proffered defense testimony (Kenber/Green) and in awarding attorney fees/multiplier? | Defense witnesses should have been allowed to show legitimate, independent, non‑retaliatory bases; fee award should be vacated if PAGA penalties reversed or multiplier reduced. | Excluded testimony was irrelevant/opinion/hearsay or not helpful; fee award justified under CCP §1021.5 (public‑benefit) and multiplier appropriate. | No abuse of discretion: exclusion of parts of Kenber and Green testimony was proper and not prejudicial; attorney fees affirmed under CCP §1021.5 and 2.0 multiplier not an abuse. |
Key Cases Cited
- Arias v. Superior Court, 46 Cal.4th 969 (2009) (describing PAGA’s purpose to deputize employees to enforce Labor Code penalties)
- Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) (distinguishing two types of PAGA penalties)
- Kim v. Reins International California, Inc., 9 Cal.5th 73 (2020) (an employee who suffered at least one unlawful practice has standing to represent others in PAGA claims)
- Wells v. One2One Learning Foundation, 39 Cal.4th 1164 (2006) (general statutory definitions of “person” do not necessarily include public entities)
- Flowers v. Los Angeles County MTA, 243 Cal.App.4th 66 (2015) (analysis of PAGA default penalties and pleading)
- Reeves v. Safeway Stores, Inc., 121 Cal.App.4th 95 (2004) (cat’s‑paw doctrine and imputation of supervisor animus to employer)
- Serrano v. Priest, 20 Cal.3d 25 (1977) (private‑attorney‑general doctrine underlying CCP §1021.5)
- Northwest Energetic Services, LLC v. California Franchise Tax Bd., 159 Cal.App.4th 841 (2008) (lodestar adjustments and factors for multipliers)
- Hawkins v. City of Los Angeles, 40 Cal.App.5th 384 (2019) (affirming PAGA penalties against a public employer)