please quote me on a carter for appellant silken brown in mario daily rossa i'd like to reserve two minutes you know afternoon for this case is about my age statement and a direct violation of california labor code section two to six now that section requires that there be nine specific pieces of information on wage statements and permit here that includes the total hours worked and the pluggable hourly rates at issue during the pay period now everybody enjoys good paycheck but if you can't determine with your paycheck whether or not you're paid correctly that's where two to six comes in and if that's a ploy is no whether or not they're paid correctly based on whether this information is included in their wage statements can we consider notices with respect to the claimant who's claims were dismissed with prejudice yes we can watch cases the cases were ordered consolidated for all purposes and that consolidation was complete the cases proceeded under one case number only and the court acknowledged that for all purposes all the pleadings would be at issue and the parties also continue to move forth including all the allegations and all the pleadings and all the p letters and so they can be determined here because the cases were consolidated in the court said they would do so for everything and they in fact merged all the cases as one the fact that amy is no longer in this a pos amy is not at all a party to this appeal does not negate or race any notice that sentiment had with respect to all of these allegations simply does not erase the notice that was at hand if we concluded that we couldn't consider her notice do you argue  that the brown notice was adequate on its face we would argue that it is adequate because there's a lot of case law that says even if you do mention things like the total hours worked and you mention any violations of section two to six the case then it hand gives notice to both the defendant as well as the l w da what's at stake it gives noticed with respect to any violations of two to six it tells the employer needs to go ahead and look at the two to six violations but here we don't need to even address that because both the paga letters as well as the complaint contain allegations that specifically mention that the hourly rates are at hand when it comes to any of the three to six claims and the plaintiff himself moved to certify these claims because they are imminently certifiable and the court erred in respect to denying certification because the court did not look beyond the face of the pleadings instead it applied a pleading standard in order to die certification and that simply contrary to the governing law which says that when you go to class when you move for classifications oftentimes you're looking at other evidence including class discovery and you don't focus solely on the face of the pleadings and here the court itself even denied a premature motion to deny certification because the court said that the claims need to be a says and there needs to be a which center mark had refused to produce at the time and in the same breath that the court said there needs to be class discovery before we can prepare for class certification the court now in its ruling at hand completely ignored this class discovery and decided the cinemark wasn't on notice even though this discovery did in fact prove that sentiment was on actual notice they were admissions during this discovery were sent marc admitted that over sixty six thousand of its wage statements were violative of section two just six because the hourly rates were not listed correctly they listed the overtime rate the same as a regular rate of pay and that's what's at issue here so the court erred in class certification denial because a complaint at the two standards of a pleading standard which simply requires a short in plain statement versus the standard for class certification which requires more detailed level of the theory of liability and so you look beyond the pleadings which the court did not do its ruling was basically counterfactual because there was actual evidence and it was contrary to the case law it didn't even apply any of the rule twenty three criteria whatsoever and the we have multiple orders here before the court so i want to get to the next one the court also denied also erred when they denied amendment for the appellants insofar as amending their complaints and said it said there is no direct wage statement claim under two to six however here amending the complaint would not be futile first of all  liberally granted and is only sparingly granted when it's dismissed supercars dismissal and then there's no opportunity to amend this was the first challenge to the pleadings and this challenge is brought nearly three years until a legation it can't be sa that it's too late to amend yet at the same time it's not too late to bring the first challenge to the plates and the alligator money was a scheduling order but so deadlines in this case a deadlines for what you're under for many months there was no deadline for amendment out following the classification denial and the dismissal of the wave statement claim the court did allow for the briefing on amendment and then we provided that briefing and there was an opposition and the court denied the amendment and the court denied the amendment on several grounds that are simply erroneous the court found that amending the complaint would be futile looking at the allegations in the proposed them in a complaint however here we have a direct facial violation of two to six that's evident on the face of the wave statements and that was pled in the proposal in the complaint the court found that that that's fine there's a direct there's a violation of two to six but there's no knowing and intentional element or an injury element that's played properly however the knowing of intentional element need only be played generally under rule nine knowledges need only be played generally and not under the case law as far as knowing an intentional excusing intentional there only need be a simple allegation to that effect and the proposed minute complaint here states precisely that it says despite the fact that center mark knew of the legal parlance and had it willfully in willingly provided these wait statements that were inaccurate and therefore those that were satisfied all of these requirements for section two to six and particular the injury also element was satisfied as it does not require actual angry and in the court's opinion the court relies on old case law that states to the effect that would apply before th clarification of the law and to any thirteen that basically says you no longer have to prove actual injury for two to six claims and the said it's an objective standard and it specifically mentions the reasonable person standard and whether or not a reasonable person can easily and promptly from the way statements determine whether or not they were paid correctly something's missing etc and that standard was clearly met here based on the result person to person standard the court also found that the late stage in proceedings was something that was determined here however under delay alone cannot sanction the amend the denial of amendment here in particular as mentioned earlier only based on the fact that this was brought three years into litigation as the first challenge to the pleading and there was no bad faith for on the part of appellants to do so it was only in relation to the fact of that sentiment had brought this belatedly as far as prejudice goes there is simply no showing of prejudice that would warrant denial of amendment here a showing of prejudiced cars that it must be substantial in order to not have an opportunity to man and dismiss the claims and here there was simply no substantial prejudice the amendment doesn't affect the class definition it doesn't involve different employees or new parties so mark can move to dismiss the claims if need be later on there's case law that says that once you allow amendment that's the case can do that rosso as a plaintiff and then to add meal or respray claims that were stipulated by cinema there's been no motions to amend beforehand nor motions to dismiss this is simply the first challenge and appellant responded accordingly in addition to denying leave to amend the court also found that pov exhaustion was not satisfied here now this is important because the california supreme court has recently made clear as well as the legislature in new amendments to the park statute that did not in any way require any more detail with respect to the facts and theories that are put forth in these notices letters and williams the california supreme court basically said that there is no threshold of waiting is for these letters the main point is that the employer and l w da in particular received notice of what's at stake and that's precisely what happened here the letters that issued to the elderly d a state that there were three inaccurate areas on the section to choose to claim on the way statements and this included the total number of hours worked the a pleasurable deductions and the applicable hourly rates listing this to check their pluggable rates and that's subsequent changes by the legislature would seem to indicate that the legislature felt that the statute required more at an earlier point in time because why amend the statute actually the legislature rejected arguments that would require more meat to the facts and theories language of the paga statute and in fact there was no amendment with respect to the facts and very section of that statue and coupled with that the williams court said that paga claim should not be subject to these crazy and unwarranted hurdles simply for prosecuting these probably actions the actions and having plaintiffs be de d as attorney generals and that includes the fact that these this notice for the paga letters is at the outside of the case it's before there's a new discovery and the case law says that if a product plaintiff had to keep changing the pa letters each time they discovered a new fact in discovery then that went to work and that's why the supreme court said that there's no threshold of waiting lists here and simply notice is all that's required in fact it's said that it basically should not be frivolous as long as it's not frivolous the standard of non frivolousness where that was that was this year couple months ago and we said that a supplemental authority here for the court to review but even even with the legislature alone as well as the language and the case law already interpreted paga based basically finds and concurs with this that there should be no waiting this it's all based on notice and whether  market and the elder b d a have noticed here now the district court paid lip service to this idea that they're being noticed for the l w da but it misapplied the standard entirely it relied on case law that required exceedingly detailed level letters which is simply not the case as reiterated in williams and as mentioned before the pago letter at issue here did mention the a playable rate no exceeding level of detail or painstaking this with respect to adding more and more details are required at the onset of the case center mark knew that the rates were at issue then they would go ahead and look at their wage statement kinds their way statements and look at oh are the rates in correct or not and where do we go from there  put them on notice and lastly before or argument scheduled so mark also presented a motion to dismiss this appeal and based on microsoft the baker and i would  posit that microsoft be baker is not irrelevant here microsoft the baker was part of trying to dissuade plaintiffs from these manufactured tactics to get appeals going forward after for example rule twenty three f petitions have been denied that's not the case here all there was no simple voluntary dismissal following the denial class cert instead the plaintiffs here followed the options the microsoft be bigger court opposed there was a briefing there was a hearing and then based on a tentative order which basically whittled down the claims to very minimal the court itself suggested that the cases that the parties settle and that's precisely what opponents did all the claims in this case were either subject to adverse rulings and disposed of based on all of these successes motions or bought percent mark and the claims were gone or some work paid monetary consideration for these claims and settlement and none of the claims that were off the clock claims reporting time claims minimum wage claims and derivative wage statement claims the plaintiffs litigated those claims for two years until the district court denied certification on those claims none of those claims are on appeal to this court instead the plans for the first time two years into the case tried to move for certification on a claim that was never pled that is what the parties in the district court have referred to as the direct wage statement claim well pla alleges that soon a market wage statement show the number of overtime hours worked the regular rate which is then multiplied by one and a half to come up with the total overtime wages paid plaintiffs contend that that was a violation of labor code section two twenty six that claim was not played in the in the complaint when plaintiffs moved to certify that class the district court denied certification on the grounds of the claim had not been pl to be clear the plaintiffs don't argue that the overtime rate was miscalculated they don't argue that any of the plaintiffs were underpaid or not paid they don't argue any actual damage at all the only argue that they're entitled to civil penalties certification of that section two to six claim on grounds that it was not properly pled the district court granted motion for judgment on the pleadings on the pago claim on the ground that on this basis on the ground that it had not been exhausted court's own president or the standard for pocket letters you know they the california supreme court has is the authority on california law so what we say doesn't make much difference williams versus superior court was about discovery in pago actions and it went on to talk about well in that case the court found that the plaintiffs did not have to provide evidence in their notice letter they didn't have to provide evidence of a violation in order to to discovery on a pocket action judge or didn't require the plaintiffs to provide evidence he simply required the plaintiffs to provide note is of the claim that they were alleging or the violation that they are alleging that's consistent with williams versus superior satisfy a particular threshold awaiting us beyond the requirements of for was generally a pluggable to any civil filing and then to talk about the purpose of the notice to afford the relevant agency after trying to decide whether to allocate scarce resource investigation so it didn't seem to set a very high threshold for what the contents of the notice had but the plaintiffs and judge or didn't require a very high threshold in the plaintiffs didn't meet even that he did not that decision came down very recently correct or post a post of this record so in this in this court the ninth circuit in l cantor versus hope our services also set out a standard for exhaustion under paga and that standard is consistent with the wm standard and what that standard provides is that the plaintiff has to intelligently has to give enough notice that the l w da can intelligently assess the seriousness of the alleged violations and permit the employer to determine what policies or practices are being complained so as to know whether to fold or fight there wasn't that notice here from looking at the face of the complaint or the face of the paga notice that plaintiff brown submitted there was no way to know that she was claiming that the overtime rate on the wage statement was incorrect plaintiff's counsel said that the l w da should have just looked at the wage statement but they would have had to wait statement there was no way for the l w da to know that that's what the plaintiffs were complaining about and the l w da has to be given the opportunity to decide whether it wants to investigate that claim or take that claim itself so mark also has an opportunity as noted in the williams case to respond to those allegations and there was nothing in these letters that would have put in a mark on notice that what was it issue was the overtime rate on the wage statement again the the letter that crowns and which is the only letter of it's relevant because mr amy's not part of this appeal letter that brown sent was specifically tied to her off the clock claims so how does actual notice under par it wouldn't change it because that is the plaintiff that has the obligation to exhaust the plaintiff has the obligation to tell both the old and the employer what it is that they contend is a violation and here the plaintiffs did not do that so even if you had actual notice that they were claiming this violation you think that does not satisfy the exhaustion requirement it has to be in their latter because they also have to give the l w da an opportunity to under stand up or i'm just i was just curious because in your theory you apparently think that the notice has to be adequate as to both the company and the state yes but the company has to have enough notice to know that that's what's at issue because the company has an opportunity to respond to the latter and if the company doesn't understand that that's what the plaintiff is bringing to the l w da in this particular instance then that employer doesn't have enough information to know what it needs to respond to and then that's the information that the da would use to determine whether it wanted to proceed with the claim itself or not if i could just step back for a moment in this case after of the plaintiff's last class certification and their direct weight statement claim was found not to have been cleared or exhausted the plaintiffs then dismissed their claims voluntarily they settled and dismissed and because of that this court does not have jurisdiction over that appeal under the supreme court's recent decision and microsoft as the speaker in that court in that doesn't this settlement here are completely different i mean the circumstances are not decision it was so it was actually explicitly done to get to an appeal of the certification decision which is exactly what happened in microsoft as baker but there was a settlement in microsoft here or there was a settlement in which there was a preservation of certain claims but but there had already been a judgment on there had not been a judgment on all claims there were still claims left for trial in this case and so the plan of simply decided that they were not going to pursue those claims anymore they decided they weren't worth pursuing and so they decided to voluntarily dismiss them the baker court's decision didn't turn on whether there was consideration or not it turned on the fact that the plaintiffs specifically dismissed the claims that appeal certain claims because they dismissed them with prejudice but the supreme court has changed the law on that now and the supreme court has said you can't voluntarily dismiss claims in order to manufacture an appeal and in this case that's precisely what the plaintiffs did and while they say that they are only appealing claims that were actually taken to judgment a final judgment doesn't depend on what the plaintiff decides to appeal a final judgment depends on what happens in the district tarlac different i mean otherwise you're saying any time you have a partial settlement the necessarily answer can be an appeal only if that settlement is designed to get around the rules for taking interlocutory appeals which is which was the case here plaintiffs could have sought rule twenty three f position they could have tried to appeal under twelve ninety two b they didn't do either of those things and said they dismissed their claims in order to get to an appeal which is exactly what the supreme court rejected and microsoft  exhaust those claims the district court denied certification because the claim was not pled and the appellant's don't disagree that it district court does not abuse its discretion by denying certification if a claim is not properly pled in fact in their brief they call it an unremarkable principle at page four of their reply brief so the issue in this case is whether the claim was properly pled if it was not then that is your court did not abused its discretion and there's a number of cases that we cited in our breach that would agree with that premise is really an abuse of discretion standard only basis for denying class or occasion was was the technical pleading failures the ruling on the motion for judgment on the pleadings would not be an abus discretion but the denial of class certification if the court properly made that determination is an abuse of discretion standard and if you didn't exercise any discretion he simply said i'm not going to certify the class because you can exhaust the cl he held that the that the plaintiffs he held that he wasn't going to certify the class because the plants had pled the claim he didn't there was no certification motion on the pog a claim for exhaustion that was a separate that was a motion for judgment on the pleadings which would have been a review what he denied certification on was the direct wage statement claim under labor code two twenty six and the pleading brown's second amended complaint paragraph fifty eight pled the following defendants have intentionally and willfully failed to provide employees with complete and accurate weight statements the deficiencies include among other things the failure to state all hours worked as a result of failing to record and state the hours and class members worked off the clock that's a derivative claim this is not a case where the pleading was vague that was a very specific pleading of a derivative wage statement claim when the plaintiffs got to class certification two years into the case for the first time they then tried to pursue a separate class a separate and distinct claim for a direct wage statement violation that had to do with the face of the wage statement but that was not plaid and the most the best evidence of that is that briefing on the motion to deny certification that happened a year into the case when cinemark moved to deny class certification on the grounds that the deriv wage same a claim was derivative and the plaintiffs agreed with that they never said they had a direct wage statement claim in fact they agreed that the waste in the claim was derivative a year later they just apparently discover this new claim and they want to certify it and instead of moving to amend the complaint to do so they simply moved for class the case was on the verge of being ready to go to trial we would have had to reopen discovery we would have had to read a post the plaintiffs there may have been other class members depositions that need to be taken classification would have needed to be reprieved and we argued even though th district court had told the plaintiffs previously that he would not continue the certification decision because he had already done so once there would have been additional motion practice because the complaint is the district court found was still deficient and then there would have been additional summary judgment motions and so that need to reopen discovery and reprieve an argue motions as this court has found in other cases was would have been prejudicial to set a mark and there was no abuse of discretion in the district courts finding out that point just a few points on rebuttal with respect to prejudice the case last clear the prejudice must be substantial and the case law is also clear with respect to the fact that discovery alone and additional discovery does not meet this substantial prejudiced standard so that here is not required to denial of amendment secondly with respect to paga exhaustion i think again we're having sent a mark as well as what the district court reiterated paying lip service only to the idea of notice to the da and the employer well this notice is simply a minimal standard and it's not applied to me talk about notice but this minimal standard was not applied in particular the pa the letter here states there are three areas that are in accurate on these wage statements with respect to two to six it includes the total hours worked the deductions and the pluggable hourly rate during the pay period mentioning the political hourly rate during the pay period is exactly that notice of what's at issue in this