Filed 9/9/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

FRED WESSON,

Plaintiff and Appellant,

v.

STAPLES THE OFFICE 

SUPERSTORE, LLC,

Defendant and Respondent.

 B302988

 (Los Angeles County

 Super. Ct. No. BC593889)

APPEAL from orders of the Superior Court of Los 

Angeles County, Carolyn B. Kuhl, Judge. Affirmed.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of part B of the Discussion.
2

Schneider Wallace Cottrell Konecky, Todd M. 

Schneider, Carolyn H. Cottrell and David C. Leimbach; 

Boucher, Raymond P. Boucher and Maria L. Weitz, for 

Plaintiff and Appellant.

Morrison & Foerster, Tritia M. Murata, David P. Zins 

and Maya Harel, Karen J. Kubin and James R. Sigel, for 

Defendant and Respondent.

_________________________________________

INTRODUCTION

This appeal raises a question of first impression: 

whether trial courts have inherent authority to ensure that 

PAGA claims will be manageable at trial, and to strike such 

claims if they cannot be managed. We hold that courts 

possess this authority. 

Appellant Fred Wesson worked for respondent Staples

the Office Superstore, LLC (Staples) as a store general 

manager (GM). He brought this action against Staples, 

asserting, among other things, a representative claim under 

the Private Attorneys General Act of 2004 (PAGA) (Lab. 

Code, § 2698 et seq.) on behalf of himself and 345 other 

current and former Staples GMs in California. In his PAGA 

claim, Wesson sought almost $36 million in civil penalties 

for alleged Labor Code violations, all premised on the theory

that Staples had misclassified its GMs as exempt executives. 

Staples moved to strike Wesson’s PAGA claim, arguing 

that given the number of employees it covered and the 
3

nature of his allegations, the action would be 

“unmanageable” and would violate Staples’s due process 

rights. It contended that its intended affirmative defense --

that it properly classified its GMs as exempt and thus 

committed no Labor Code violations -- would require 

individualized proof as to each GM, and thus that the claim

could not be fairly and efficiently litigated. In his opposition, 

Wesson contended that the trial court lacked authority to

ensure that PAGA actions are manageable, and argued that 

even if the court had such authority, it was sufficient that 

his prima facie case was manageable; whether Staples’s

affirmative defense could be managed at trial, Wesson 

contended, was irrelevant. While Staples’s motion was 

pending, Wesson moved for summary adjudication of his 

PAGA claim. 

The trial court invited Wesson to submit a trial plan 

showing that his PAGA action would be manageable at trial. 

In response, Wesson continued to insist that the court lacked 

authority to require that his claim be manageable, and laid 

out his plan to prove his prima facie case using common 

proof, but declined to address how the parties could litigate 

Staples’s affirmative defense. Following this response, the 

court concluded that the PAGA claim could not be managed 

at trial and granted Staples’s motion to strike it. Given this 

ruling, the court found no need to consider Wesson’s motion 

for summary adjudication as to his PAGA claim and denied 

the motion. 
4

Wesson challenges both rulings on appeal. He claims 

the court erred in failing to consider his motion for summary 

adjudication, as it had the potential to narrow the issues and 

make the action more manageable. He contends the court 

should have granted his motion because Staples had failed to 

provide individualized evidence in support of its exemption 

defense, at least as to some GMs. As to Staples’s motion to 

strike, Wesson repeats his arguments that the court had no 

authority to strike his PAGA claim as unmanageable, and 

that any manageability assessment need not have 

considered Staples’s affirmative defense. He adds that 

Staples had no due process right to present individualized 

evidence in support of its defense. 

In the unpublished portion of this opinion, we conclude 

that Wesson was not entitled to summary adjudication, as 

Staples presented sufficient evidence to support its 

exemption defense as to all GMs. In the published portion, 

we draw on established principles of the courts’ inherent 

authority to manage litigation, including ensuring the 

manageability of representative claims, and conclude that:

(1) courts have inherent authority to ensure that PAGA 

claims can be fairly and efficiently tried and, if necessary, 

may strike claims that cannot be rendered manageable; (2)

as a matter of due process, defendants are entitled to a fair 

opportunity to litigate available affirmative defenses, and a 

court’s manageability assessment should account for them; 

and (3) given the state of the record and Wesson’s lack of 

cooperation with the trial court’s manageability inquiry, the 
5

court did not abuse its discretion in striking his PAGA claim 

as unmanageable. We therefore affirm.

BACKGROUND

A. Wesson’s Action and the Denial of Class Certification

Staples is a global provider of office products and 

services to individuals and businesses. As of 2019, it

operated about 150 big-box stores in California. Each 

Staples store is managed by a GM. Wesson was the GM of 

various Staples stores in Los Angeles County between 2006 

and 2016. 

In 2015, Wesson brought this action against Staples, 

alleging causes of action for, inter alia, unpaid overtime and

failure to provide rest and meal periods. He later amended 

his complaint to add a cause of action seeking civil penalties 

under PAGA. Wesson’s PAGA claim covered 346 Staples 

GMs, including Wesson, and sought almost $36 million in 

civil penalties under the Labor Code. Each of Wesson’s 

claims was premised on the theory that Staples had 

misclassified its California GMs as exempt executives (who 

are not entitled to overtime pay and off-duty meal and rest 

periods), when in fact they should have been classified as 

non-exempt, hourly employees. 

Wesson moved to certify a class of Staples California 

GMs, but the trial court denied the motion, concluding he

had not demonstrated that his claims were susceptible to 

common proof. The court found that important factual 

questions relating to whether GMs spent most of their 
6

worktime doing exempt, managerial tasks could not be 

resolved on a classwide basis.1 It reasoned that there was 

too much variation in how Staples GMs performed their jobs 

and the extent to which they performed non-managerial

tasks. Wesson does not challenge this ruling on appeal. 

B. Staples’s Motion to Strike the PAGA Claim as 

Unmanageable

Following the court’s denial of class certification, 

Staples moved to strike Wesson’s PAGA claim, invoking the 

court’s inherent authority to manage complex litigation. It 

argued the claim would be unmanageable at trial and would 

violate Staples’s due process rights. In support, Staples 

pointed to evidence that the GM position was not 

standardized, and that there was great variation in how 

Staples GMs performed their jobs and the extent to which 

they performed non-exempt tasks. According to Staples’s 

evidence, Staples stores varied widely in size, sales volume, 

staffing levels, labor budgets, store hours, customer-traffic 

levels, products and services offered for sale, and many other 

variables, all of which affected GMs’ work experience. 

Staples’s evidence also tended to show that how GMs spent 

their time depended on their experience, aptitude, and 

1 As explained below, the executive exemption generally 

requires that the employee spend the majority of his or her time 

doing exempt work, meaning managerial tasks and other closely 

related functions. (See Safeway Wage & Hour Cases (2019) 43 

Cal.App.5th 665, 676-678 (Safeway).) 
7

managerial approaches, as well as the size and composition 

of their management teams. Relying on this evidence and on 

the trial court’s findings in denying class certification,

Staples argued that Wesson’s claims would require 

individualized assessments of each GM’s classification, and 

would lead to “an unmanageable mess” that “would waste 

the time and resources of the Court and the parties.” 

In his opposition, Wesson contended that the trial 

court lacked authority to ensure that PAGA actions are 

manageable. He argued that imposing a manageability 

requirement would immunize employers from liability and 

defeat PAGA’s purpose. Alternatively, Wesson claimed that 

even if the court could require that a PAGA claim be 

manageable, it should consider only the ability to try 

plaintiff’s prima facie case, not the manageability of any 

affirmative defense. 

Before ruling on the merits of Staples’s motion, the 

trial court concluded it had inherent power to strike an 

unmanageable PAGA claim. It then invited Wesson to 

submit a trial plan showing that his claim would be 

manageable, and permitted him to file a supplemental brief

in opposition to Staples’s motion. 

C. Wesson’s Motion for Summary Adjudication

Shortly before Wesson was to submit his trial plan, he 

moved for summary judgment or, in the alternative, 

summary adjudication on his PAGA claim. We discuss the 

parties’ respective evidence relating to Wesson’s motion in 
8

the unpublished portion of this opinion addressing his 

challenge to the court’s ruling on his motion. 

D. Wesson’s Trial Plan and Supplemental Opposition to 

Staples’s Motion to Strike

In his supplemental opposition to Staples’s motion to 

strike his PAGA claim, Wesson reiterated his position that 

the court lacked authority to ensure the manageability of his 

claim. He also repeated his argument that any 

manageability assessment should not consider Staples’s 

affirmative defense. Wesson agreed that to litigate its 

exemption defense, “Staples [would] need to proffer ‘a GMby-GM, week-by-week analysis’ throughout the entire 

relevant time period that all of the GMs were properly 

classified as exempt executives.” But he asserted that “a 

manager misclassification PAGA claim is ‘manageable’ so 

long as [the] plaintiff’s prima facie case, concerning each 

aggrieved employee at issue, is provable by resort to common 

evidence.” 

In his trial plan, Wesson explained he intended to 

prove up his prima facie case using common proof, 

establishing that GMs did not receive off-duty meal and rest 

breaks and worked overtime without receiving overtime pay. 

However, he did not attempt to address how the parties

could litigate Staples’s exemption defense. He stated that it 

would be improper for him to “dictate how Staples should go 

about proving its exemption defense,” and that he would not 

attempt to prevent Staples from proving its affirmative 
9

defense as it saw fit. According to Wesson’s trial plan, 

Staples would “be permitted to present whatever evidence it 

want[ed], be it testimony of GMs, supervisors, corporate 

representatives, documentary evidence of Staples’ policies, 

procedures, and expectations, or any other evidence Staples 

deem[ed] necessary.” At a subsequent hearing on Staples’s 

motion, the parties estimated they would need a total of six 

trial days per GM to litigate GMs’ classification as exempt 

executives on an individual basis. Based on that estimate, 

the trial would have lasted eight years. 

E. The Trial Court’s Rulings

The trial court ultimately granted Staples’s motion to 

strike Wesson’s PAGA claim. The court reiterated its 

conclusion that it had authority to ensure the manageability 

of a PAGA claim, reasoning that courts have inherent 

powers to control litigation before them and that PAGA was 

a procedural vehicle, rather than a substantive claim. It

found additional support for its conclusion in the courts’

imposition of judicially created manageability requirements 

in the context of class actions and representative Unfair 

Competition Law (UCL) claims. 

The court then proceeded to find Wesson’s PAGA claim 

unmanageable. It emphasized that Wesson’s trial plan did 

not address how the parties might litigate Staples’s 

affirmative defense, and noted its prior findings, in denying 

class certification, regarding the great variation in how 

Staples GMs performed their jobs and the extent to which 
10

they perform non-managerial tasks. The trial court found no 

evidence that Staples’s defense could be litigated through 

common proof. Noting the parties’ estimates of the time they 

would need to litigate the exemption defense, the court 

stated that even cutting those estimates in half would result 

in a trial lasting more than four years. The court thus 

concluded, “A four-year trial involving witnesses and 

documents individually pertaining to each of 346 General 

Managers does not meet any definition of manageability.” 

In a separate order, the trial court denied Wesson’s 

motion for summary judgment or summary adjudication. As 

to Wesson’s PAGA claim, the court concluded that because it 

decided to strike the claim, there was no need to address it. 

Wesson timely appealed, challenging the court’s striking of 

his PAGA claim and its denial of his motion for summary 

adjudication. 

DISCUSSION

A. Legal Background

1. PAGA

“‘The State’s labor law enforcement agencies -- the 

Labor and Workforce Development Agency (LWDA) and its 

constituent departments and divisions -- are authorized to 

assess and collect civil penalties for specified violations of 

the Labor Code committed by an employer.’” (Raines v. 

Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 

667, 673.) In 2003, citing inadequate funding for
11

enforcement of labor laws, the Legislature enacted PAGA to 

“authorize[] an employee to bring an action for civil penalties 

on behalf of the state against his or her employer for Labor 

Code violations committed against the employee and fellow 

employees, with most of the proceeds of that litigation going 

to the state.” (Iskanian v. CLS Transportation Los Angeles, 

LLC (2014) 59 Cal.4th 348, 360.) The statute was intended 

“‘to punish and deter employer practices that violate the 

rights of numerous employees under the Labor Code.’” (Id.

at 384.) Thus, a PAGA action “‘“is fundamentally a law 

enforcement action”’ that ‘substitute[s] for an action brought 

by the government itself.’” (Iskanian v. CLS Transportation 

Los Angeles, LLC, supra, at 394, quoting Arias v. Superior 

Court (2009) 46 Cal.4th 969, 986 (Arias).) A PAGA plaintiff 

acts “as the proxy or agent of the state’s labor law 

enforcement agencies.” (Arias, supra, at 986.) In other 

words, PAGA is “simply a procedural statute allowing an 

aggrieved employee to recover civil penalties . . . that 

otherwise would be sought by state labor law enforcement 

agencies.” (Amalgamated Transit Union, Local 1756, 

AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003

(Amalgamated Transit Union).) 

2. The Executive Exemption

Among the Labor Code provisions a PAGA plaintiff 

may seek to enforce are those imposing overtime and rest 

and meal period requirements. (See Lab. Code, §§ 226.7, 

510-512, 1194, 2699.) As relevant here, California Industrial 
12

Welfare Commission (IWC) Wage Order No. 7-2001, which 

governs employees of the mercantile industry and is codified 

in the California Code of Regulations, largely exempts 

“executive” employees from these requirements.2 (IWC,

Wage Order No. 7-2001 (Jan. 1, 2001), Cal. Code Regs., tit. 8, 

§ 11070, subd. 1(A).) This exemption is an affirmative 

defense that the employer has the burden to prove. 

(Safeway, supra, 43 Cal.App.5th at 671.)

To be an exempt executive, an employee must: (1) earn 

a salary of at least twice the minimum wage for full-time 

employment; (2) be involved in managing the enterprise or a 

relevant department; (3) customarily and regularly direct 

the work of two or more employees; (4) have the authority to 

hire or fire, or have recommendations regarding such 

matters receive particular weight; (5) customarily and 

regularly exercise discretion and independent judgment; and 

(6) be “primarily engaged in duties which meet the test of

the exemption.”

3 (Cal. Code Regs., tit. 8, § 11070, subd. 

2 It is undisputed that Staples is in the mercantile industry. 

The IWC was defunded in 2004, but its wage orders remain in 

effect. (Batze v. Safeway, Inc., (2017) 10 Cal.App.5th 440, 471, fn. 

34.) The California Supreme Court has instructed that “[t]he 

IWC’s wage orders are to be accorded the same dignity as 

statutes.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 

Cal.4th 1004, 1027.)

3 For purposes of the wage order, “‘[p]rimarily’” means “more 

than one-half the employee’s work time.” (Cal. Code Regs., tit. 8, 

§ 11070, subd. 2(K).) Other exemptions include a similar 

requirement that employees spend most of their time on 

(Fn. is continued on the next page.)
13

1(A)(1).) The wage order defines the “duties which meet the 

test of the exemption” by reference to corresponding federal 

regulations. (Id., § 11070, subd. (1)(A)(1)(e) [referring to 29 

C.F.R. §§ 541.102, 541.104-111 & 541.115-116 (2001)].)

Under the relevant federal regulations, managerial 

and supervisory tasks within the scope of the exemption are 

generally “‘easily recognized’” and include such tasks as:

“‘[i]nterviewing, selecting, and training of employees; setting 

and adjusting their rates of pay and hours of work; directing 

their work; maintaining their production or sales records for 

use in supervision or control; appraising their productivity 

and efficiency for the purpose of recommending promotions 

or other changes in their status; handling their complaints 

and grievances and disciplining them when necessary; 

planning the work; determining the techniques to be used; 

[and] apportioning the work among the workers . . . .’” 

(Safeway, supra, 43 Cal.App.5th at 676-677, quoting 29 

C.F.R. §§ 541.102(a) & (b) (2001).) The federal regulations 

also recognize a category of exempt tasks that may not be so 

easily identifiable as exempt: tasks that are not inherently 

managerial or supervisory but are “‘directly and closely 

appropriate duties under the relevant exemption. (See, e.g., id., 

§ 11070, subds. 1(A)(2)(f) [administrative exemption], 1(A)(3)(b)

[professional exemption], (2)(J) [outside salesperson exemption].)
14

related’” to those functions.4 (Safeway at 677, quoting 

§ 541.108 (2001).) 

By contrast, non-exempt work includes all work that is 

neither management or supervision nor directly and closely 

related to those functions. (Safeway, supra, 43 Cal.App.5th 

at 678.) “‘[I]n the usual case, it consists of work of the same 

nature as that performed by the nonexempt subordinates of 

the “executive.”’” (Ibid., quoting 29 C.F.R. § 541.111(b)

(2001).)

4 The regulations provide examples of tasks that may be 

“directly and closely related” to managerial or supervisory 

functions:

“(b) Keeping basic records of working time . . . is frequently 

performed by a timekeeper employed for that purpose. In such 

cases the work is clearly not exempt in nature. In other 

establishments which are not large enough to employ a 

timekeeper, or in which the timekeeping function has been 

decentralized, the supervisor of each department keeps the basic 

time records of his own subordinates. In these instances, . . . the 

timekeeping is directly related to the function of managing the 

particular department and supervising its employees. . . .

“(c) Another example of work which may be directly and closely 

related to the performance of management duties is the 

distribution of materials or merchandise and supplies. . . . In 

[some] establishments it is not uncommon to leave the actual 

distribution of materials and supplies in the hands of the 

supervisor. In such cases it is exempt work since it is directly 

and closely related to the managerial responsibility of 

maintaining the flow of materials. . . .” (29 C.F.R. § 541.108

(2001).)
15

In determining whether an employee is “primarily 

engaged” in exempt duties under the IWC wage order, the 

“first and foremost” consideration is the “work actually 

performed by the employee during the course of the 

workweek . . . .” (Cal. Code Regs., tit. 8, § 11070, subd. 

1(A)(1)(e).) However, a factfinder must also consider “the 

employer’s realistic expectations and the realistic 

requirements of the job . . . .” (Ibid.) As our Supreme Court 

has explained in discussing the analogous “outside 

salesperson” exemption, “an employee who is supposed to be 

engaged in [exempt tasks] during most of his [or her] 

working hours and falls below the 50 percent mark due to 

his [or her] own substandard performance should not 

thereby be able to evade a valid exemption.” (Ramirez v. 

Yosemite Water Co. (1999) 20 Cal.4th 785, 802 (Ramirez).) A 

factfinder should therefore “consider whether the employee’s 

practice diverges from the employer’s realistic expectations, 

whether there was any concrete expression of employer 

displeasure over an employee’s substandard performance, 

and whether these expressions were themselves realistic 

given the actual overall requirements of the job.” (Ibid.)

B. Wesson’s Motion for Summary Adjudication

Wesson argues the trial court erred in denying his 

summary adjudication motion without considering it. He 

contends that because ruling on his motion could have 

obviated or altered the court’s manageability assessment, 

the court was required to consider it before reaching 
16

Staples’s motion to strike his PAGA claim. Assuming 

arguendo that the trial court erred in failing to consider 

Wesson’s summary adjudication motion as to the PAGA 

claim, we conclude the motion failed on the merits.

1. Factual Background

In support of summary adjudication on his PAGA 

claim, Wesson provided GMs’ work schedules, Staples policy 

documents, and deposition testimony by Staples’s corporate 

designee to prove that all 346 GMs worked overtime but 

received no overtime pay and no off-duty meal and rest

periods. He also offered the declarations of 31 current and 

former Staples GMs, in addition to his own declaration.5 

Wesson and the other declarants all stated, inter alia, that 

they spent most of their worktime as GMs doing the same 

non-managerial work their non-exempt subordinates did and 

could not realistically do their job any other way due to 

Staples’s rigid limitations on hiring hourly employees and 

tight labor budgets. 

In opposition, Staples submitted declarations from two 

of its regional vice presidents, Laurence Newell, Jr. and 

Timothy Bernicke, whose combined regions included almost 

250 Staples stores. The two regional vice presidents

described Staples stores as large-scale and complex 

5 It is undisputed that of the 31 GMs who provided 

declarations in support of Wesson’s action, 19 had left Staples 

before the period relevant to his PAGA claim. 
17

operations with multiple departments who all reported to 

the GM. Newell noted that stores had anywhere between 

“around 10 to 12 Associates on the low end” and “around 40 

Associates on the high end . . . .” According to both 

declarants, the GM was the only exempt employee in any 

given store. As to GMs’ salaries, Newell testified they were 

paid $50,000-$100,000, plus bonuses. 

Newell and Bernicke provided extensive descriptions of 

GMs’ job responsibilities, which included numerous 

inherently managerial functions. Both testified that GMs 

were ultimately responsible for all aspects of their stores’ 

operations: they were required to assess the stores’ financial 

performance and develop strategies to maximize 

profitability. GMs developed their own strategies regarding 

such issues as product placement, marketing and 

networking, and response to competition. GMs were also 

responsible for hiring, training, and coaching staff, 

scheduling and assigning work, promoting employees, and 

disciplining (including recommending termination), as 

necessary. 

According to Newell and Bernicke, there was great 

variation in the way GMs performed their jobs and managed 

their stores, as every store was different, every GM had his 

or her own management style and strategic vision, and GMs 

had complete discretion in deciding how to spend their time. 

However, both asserted that Staples expected GMs to spend 

most of their time managing their stores, and that those who 

spent too much of their time doing non-managerial work 
18

were counseled accordingly. They explained that each 

Staples store had a customized labor budget, which GMs’ 

managerial decisions could impact. The labor budget was 

designed to provide sufficient labor, so that hourly 

employees would perform hourly work and GMs would 

remain free to manage the stores. 

Staples also provided declarations from 31 GMs, 

including the GM who took over Wesson’s former store. 

Consistent with the declarations of Newell and Bernicke, 

these GMs testified that they spent the vast majority of their 

time doing managerial work, that their labor budgets were 

sufficient and did not require them to do a significant 

amount of hourly work, and that Staples did not expect them 

to do hourly work. Some of these declarants opined that if a 

GM did too much hourly work, it was because he or she was

mismanaging the store and accepting low-quality work from 

subordinates. As noted, after deciding to strike his PAGA 

claim, the trial court denied Wesson’s motion as it pertained 

to that claim without considering it. 

2. Governing Principles

“‘A summary adjudication motion is subject to the same 

rules and procedures as a summary judgment motion.’”

(Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018) 

30 Cal.App.5th 397, 401.) “Summary judgment is 

appropriate only ‘where no triable issue of material fact 

exists and the moving party is entitled to judgment as a 

matter of law.’” (Regents of University of California v. 
19

Superior Court (2018) 4 Cal.5th 607, 618.) The moving party 

bears the burden of persuasion that there is no triable issue 

of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 850.) We liberally construe the evidence in 

support of the non-moving party and resolve evidentiary 

doubts in its favor. (Hampton v. County of San Diego (2015) 

62 Cal.4th 340, 347.)

We review the denial of summary adjudication de novo.

(Advanced-Tech Security Services, Inc. v. Superior Court

(2008) 163 Cal.App.4th 700, 705.) We will affirm the ruling 

if it is correct based on any applicable theory. (See Capra v. 

Capra (2020) 58 Cal.App.5th 1072, 1094 [“‘[A] ruling or 

decision, itself correct in law, will not be disturbed on appeal 

merely because given for a wrong reason’”].)

3. Analysis

Wesson was not entitled to summary adjudication 

because Staples’s evidence created a triable issue as to each 

GM’s proper classification as an exempt executive.6 The 

declarations of Staples’s regional vice presidents, Newell and 

Bernicke, evidenced that GMs (1) earned more than the 

6 Given our conclusion, we need not address Staples’s 

additional arguments that Wesson failed to establish his 

standing to bring his PAGA claim as matter of law and that he 

could not obtain summary adjudication as to only some GMs. 
20

required salary ($50,000-$100,000, by Newell’s account),

7

(2) managed their respective stores, (3) regularly directed 

the work of two or more employees (between 10 and 40, 

according to Newell), (4) had the authority to hire and 

recommend termination,8 and (5) regularly exercised

discretion and independent judgment in managing their 

stores (e.g., when hiring, training, and coaching staff, 

scheduling and assigning work, and developing strategies 

regarding product placement and marketing). (See Cal. 

Code Regs., tit. 8, § 11070, subd. 1(A)(1).) This evidence 

created triable issues on five of the exemption’s six elements.

Wesson’s sole contention to the contrary is that to

defeat summary adjudication, Staples was required to 

provide evidence specific to each of the 346 relevant GMs. 

However, he offers neither argument nor authority in 

support of this proposition, and has therefore forfeited the

contention. (See Mansell v. Board of Administration (1994) 

30 Cal.App.4th 539, 545 [“‘an appellate brief “should contain 

a legal argument with citation of authorities on the points 

made. If none is furnished on a particular point, the court

may treat it as waived, and pass it without consideration”’”].) 

In any case, we see no reason why knowledgeable members 

of a company’s senior management cannot testify about the 

7 Wesson does not dispute that these amounts were more 

than twice the minimum wage for full-time employment during 

the relevant period.

8 Wesson also does not dispute that GMs’ recommendations 

on termination decisions were entitled to particular weight.
21

characteristics of a certain class of employees, including 

their salary, authority, responsibilities, and typical duties. 

As to the remaining element of the exemption, Staples 

provided sufficient evidence to show that under its realistic 

expectations and the realistic requirements of the job, GMs 

were to spend most their time on managerial tasks. In their 

declarations, Newell and Bernicke extensively discussed 

GMs’ managerial job duties and explained that GMs were 

responsible for all aspects of their stores’ operations. They

testified that Staples expected GMs to spend most of their 

time managing their stores, that the stores’ labor budgets

were designed to provide sufficient labor and allow GMs to 

spend their time doing managerial work, and that those who 

spent too much of their time doing non-managerial work 

were counseled accordingly. 

The declarations Staples provided from 31 GMs further 

evidenced that Staples expected GMs to spend their time on 

managerial tasks and that its expectation was realistic. 

These GMs all testified that they spent the vast majority of 

their time on managerial work, that this was consistent with 

Staples’s expectations, and that their labor budgets were

sufficient and did not require them to spend much time on

hourly work. Some of these Staples GMs opined that 

excessive hourly work by a GM signified that the GM was

mismanaging the store and its employees. 

The evidence therefore tended to show that Staples 

expected its GMs to spend most of their time managing their 

stores, that this expectation was realistic, that any GM who 
22

failed to meet this expectation did so due to his or her own 

substandard performance, and that Staples would express 

its displeasure over such performance. On this showing, a 

reasonable factfinder could conclude that Staples properly 

treated all its GMs as exempt executives based on its 

“realistic expectations and the realistic requirements of the 

job . . . .” (Cal. Code Regs., tit. 8, § 11070, subd. 1(A)(1)(e); 

accord, Ramirez, supra, 20 Cal.4th at 802.) 

Wesson argues that Staples was required to provide 

individualized evidence as to how each of the 346 GMs

actually spent their time, the “first and foremost” 

consideration under the IWC’s wage order. (Cal. Code Regs., 

tit. 8, § 11070, subd. 1(A)(1)(e).) Yet our Supreme Court has 

made clear that this consideration is not dispositive, 

explaining that employees who are supposed to spend most 

of their time on exempt tasks, but do not do so due to their 

own “substandard performance,” should not be able to evade 

a valid exemption.9 (Ramirez, supra, 20 Cal.4th at 802.) As 

9 We reject Wesson’s suggestion that Duran v. U.S. Bank 

National Assn. (2014) 59 Cal.4th 1, 26 (Duran) supports his 

position, as that case did not address the parties’ respective 

burdens of production on summary adjudication, let alone hold 

that to avoid summary adjudication, an employer must provide 

proof of how each of hundreds of individual employees actually 

spent his or her time. As explained, Ramirez establishes that an 

employee’s work habits are not dispositive. Indeed, Justice Liu’s 

special concurrence in Duran, which joined the court’s opinion in 

full, stated that “‘the employer’s realistic expectations’ or ‘the 

(Fn. is continued on the next page.)
23

discussed, Staples provided evidence that it realistically 

expected all its GMs to spend most of their time on 

managerial tasks, and that to the extent any GMs failed to 

do so, it was due to their own substandard performance. In 

short, Wesson was not entitled to summary adjudication on 

his PAGA claim. 

C. Staples’s Motion to Strike Wesson’s PAGA Claim

Wesson claims the trial court erred in striking his 

claim as unmanageable. He asserts that the court lacked 

authority to ensure the manageability of a PAGA action

because, inter alia, a manageability assessment would 

violate PAGA’s procedures, conflict with California Supreme 

Court precedent, and undermine PAGA’s objectives. 

Alternatively, Wesson contends that the court erred in 

determining that his claim was unmanageable. 

No published California decision has considered trial 

courts’ power to ensure the manageability of PAGA claims.

10

realistic requirements of the job’” were “the ultimate issue” in 

assessing the exemption’s applicability. (Duran, supra, at 53.)

10 Federal district courts applying California law have split on 

whether courts possess inherent authority to strike PAGA claims 

as unmanageable. (Compare, e.g., Salazar v. McDonald’s Corp.

(N.D.Cal., Jan. 5, 2017, No. 14-cv-02096-RS) 2017 

U.S.Dist.LEXIS 9641, at *26 [relying on California cases 

involving representative UCL claims in concluding that 

California courts would exercise inherent power to strike

unmanageable PAGA claims]; Ortiz v. CVS Caremark Corp.

(Fn. is continued on the next page.)
24

We conclude that courts have inherent authority to ensure 

that a PAGA claim will be manageable at trial -- including 

the power to strike the claim, if necessary -- and that this 

authority is not inconsistent with PAGA’s procedures and 

objectives, or with applicable precedent. Moreover, on the 

record before us, we conclude the trial court did not abuse its 

discretion in striking Wesson’s claim as unmanageable.

(N.D.Cal., May 30, 2014, No. C -12-05859 EDL) 2014 

U.S.Dist.LEXIS 198344, at *7 [striking PAGA claim based on 

court’s “inherent authority to control its cases”]; and Raphael v. 

Tesoro Refining & Marketing Co. LLC (C.D.Cal., Sept. 25, 2015, 

Case No. 2:15-cv-02862-ODW) 2015 U.S.Dist. Lexis 130532, at 

*6-*7 [striking PAGA claim as unmanageable where court “would 

have to engage in a multitude of individualized inquiries” to 

assess alleged violations as to thousands of employees]; with, e.g.,

Plaisted v. Dress Barn, Inc. (C.D.Cal., Sep. 20, 2012, Case No. 

2:12-cv-01679-ODW (SHx)) 2012 U.S.Dist. LEXIS 135599, at 

*9-*10 [manageability requirement would obliterate PAGA’s

purpose]; Zackaria v. Wal-Mart Stores, Inc. (C.D.Cal. 2015) 142 

F. Supp. 3d 949, 959 manageability requirement is “inconsistent 

with PAGA’s purpose and statutory scheme”]; and Zayers v. 

Kiewit Infrastructure W. Co. (C.D.Cal., Nov. 9, 2017, No. 

16-CV-06405 PSG (PJW)) 2017 U.S.Dist. LEXIS 216715, at *29 

[same].) Cases finding courts lack inherent authority have 

generally concluded that a manageability requirement would be 

inconsistent with PAGA’s purposes. (See, e.g., Zackaria v. 

Wal-Mart Stores, Inc., supra, at 959.) We discuss below why we 

find this reasoning unpersuasive.
25

1. Legal Background

a. Courts Have Inherent Authority to 

Manage Proceedings Before Them

“From their creation by article VI, section 1 of the 

California Constitution, California courts received broad 

inherent power . . . .” (Stephen Slesinger, Inc. v. Walt Disney 

Co. (2007) 155 Cal.App.4th 736, 758 (Slesinger).) “This 

inherent power includes ‘fundamental inherent equity, 

supervisory, and administrative powers, as well as inherent 

power to control litigation.’” (Ibid., quoting Rutherford v. 

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) 

The courts’ inherent authority “‘“arises from necessity 

where, in the absence of any previously established 

procedural rule, rights would be lost or the court would be 

unable to function.”’” (Weiss v. People ex rel. Dept. of 

Transportation (2020) 9 Cal.5th 840, 863 (Weiss).) Thus, 

California courts have recognized that “‘“‘judges must be 

permitted to bring management power to bear upon massive 

and complex litigation to prevent it from monopolizing the 

services of the court to the exclusion of other litigants.’”’” 

(Cohn v. Corinthian Colleges, Inc. (2008) 169 Cal.App.4th 

523, 531 (Cohn); accord, First State Insurance Co. v. Superior 

Court (2000) 79 Cal.App.4th 324, 334.) Similarly, courts 

may exercise their inherent authority to fashion procedures 

and remedies as necessary to protect litigants’ rights and the 

fairness of trial, including by terminating the litigation. (See 

Slesinger, supra, 155 Cal.App.4th at 740, 762 [absent 

alternative that would ensure fair trial, courts have inherent
26

power to impose terminating sanction for egregious 

misconduct].) The courts’ inherent authority is not 

boundless, of course, and may be exercised only to the extent 

it is not inconsistent with the federal or state constitutions, 

or California statutory law. (Ibid.) 

b. Courts Have Exercised Their Authority 

to Ensure the Manageability of

Representative Actions

California courts have exercised their inherent powers

to preclude representative claims where a trial of those 

claims would be unmanageable. In the class action context, 

the courts have required class action proponents to 

demonstrate that “litigation of individual issues, including 

those arising from affirmative defenses, can be managed 

fairly and efficiently.” (Duran, supra, 59 Cal.4th at 28-29; 

accord, Washington Mutual Bank v. Superior Court (2001) 

24 Cal.4th 906, 922 (Washington Mutual) [class action 

proponent must demonstrate manageability], citing, e.g., 

Canon U.S.A., Inc. v. Superior Court (1998) 68 Cal.App.4th 

1, 5 (Canon) and Rose v. Medtronics, Inc. (1980) 107 

Cal.App.3d 150, 157 (Rose).) The statutory provision that 

authorizes class actions, Code of Civil Procedure section 382, 

contains no such requirement.

11

11 Code of Civil Procedure section 382 provides: “[W]hen the 

question is one of a common or general interest, of many persons, 

or when the parties are numerous, and it is impracticable to 

(Fn. is continued on the next page.)
27

Similarly, at least one Court of Appeal approved a trial 

court’s use of its inherent authority to bar a representative 

pre-2004 UCL claim as unmanageable.

12 In South Bay 

Chevrolet v. General Motors Acceptance Corp. (1999) 72 

Cal.App.4th 861 (South Bay Chevrolet), the plaintiff sought 

to advance a representative UCL claim on behalf of a certain 

class of California automotive dealers. (South Bay

Chevrolet, supra, at 869.) After the plaintiff presented its 

bring them all before the court, one or more may sue or defend for 

the benefit of all.” The courts have developed other class action 

requirements that find no mention in this provision, including 

“the typicality of claims, the ability of the named plaintiff to 

provide fair and adequate representation, the superiority of a 

class action over other methods of adjudication, . . . and the 

requirement of notice.” (Arias, supra, 46 Cal.4th at 989, fn. 3

(conc. opn. of Werdegar, J.).)

Wesson argues that the courts’ power to require 

manageability in class actions derives from California Rule of 

Court 3.767 -- which empowers them to strike allegations as to 

representation of absent persons in class action pleadings --

rather than from their inherent authority. However, this rule 

was adopted only in 2002, long after California courts began 

requiring putative class action plaintiffs to demonstrate their 

actions would be manageable at trial. (See, e.g., Canon, supra, 68 

Cal.App.4th at 5; Rose, supra, 107 Cal.App.3d at 157.) 

Demonstrably, the courts’ authority did not stem from this rule. 

12 Before 2004, any person could assert representative UCL 

claims, including for restitution, without satisfying class action 

requirements. (See former Bus. & Prof. Code, §§ 17203, 17204; 

Arias, supra, 46 Cal.4th at 977.) In 2004, Proposition 64 

amended the UCL to require that representative actions comply 

with class action requirements. (Arias, supra, at 977.) 
28

case at trial, the trial court granted the defendant’s motion 

for judgment under Code of Civil Procedure section 631.8, 

finding that the plaintiff offered no evidence that the 

dealerships were similarly situated, and thus that due to 

uniquely individual questions of fact, minitrials would be 

necessary with respect to each dealership. (South Bay 

Chevrolet, supra, at 869, 891.) Although the statutory 

provision that authorized representative UCL suits included 

no manageability requirement (see former Bus. & Prof. 

Code, § 17204), the court concluded that the plaintiff’s 

representative action “‘could not be efficiently tried’” and 

was therefore “‘not appropriate’” (South Bay Chevrolet, at 

891). The Court of Appeal affirmed, holding that the trial 

court had “acted within its discretion” because the evidence 

was “not sufficiently uniform to allow representative 

treatment . . . .”13 (Id. at 897.) 

13 Wesson contends that UCL precedents involving 

manageability requirements are not instructive in determining 

courts’ authority in PAGA actions. He argues pre-2004 

representative UCL claims were equitable in nature, and thus 

that courts weighed equitable considerations in deciding if they 

should proceed, and did so only in addressing the scope of 

restitutionary relief. He also claims that unlike PAGA claims, 

those UCL actions implicated the due process rights of 

non-parties, whose interests were to be adjudicated. 

In so arguing, Wesson fails to address South Bay Chevrolet, 

despite the trial court’s reliance on it below and Staples’s reliance 

on it on appeal. There, the trial court and the Court of Appeal 

relied on neither uniquely equitable considerations, nor special 

(Fn. is continued on the next page.)
29

Notably, in both the class action and the representative 

UCL claim context, barring a claim as unmanageable does

not affect the parties’ substantive rights. Instead, this 

remedy precludes the plaintiffs’ particular use of an 

aggregation procedure, leaving in place any substantive 

claim by an absent class member or UCL claimant. (See

Duran, supra, 59 Cal.4th at 29 [court considers “whether a 

class action is a superior device for resolving a controversy”]; 

South Bay Chevrolet, supra, 72 Cal.App.4th at 897 [evidence 

did not allow “representative treatment” of UCL claim].) 

2. Trial Courts Have Inherent Authority to 

Ensure that PAGA Claims Will Be Manageable 

at Trial

Drawing on these principles of the courts’ inherent 

authority to manage litigation, including ensuring the 

manageability of representative claims, we conclude that 

courts have inherent authority to ensure that PAGA claims 

can be fairly and efficiently tried and, if necessary, may 

strike a claim that cannot be rendered manageable. The 

same concerns attendant to the fair and efficient trial of 

representative claims apply in the context of PAGA actions. 

characteristics of restitutionary relief, nor the due process rights 

of non-parties. Rather, the courts cited the need for efficient trial 

of the claims (South Bay Chevrolet, supra, 72 Cal.App.4th at 891, 

897), a matter firmly within the courts’ generally applicable 

inherent authority (see Weiss, supra, 9 Cal.5th at 863; Cohn, 

supra, 169 Cal.App.4th at 531). 
30

Under PAGA, an aggrieved employee may recover civil 

penalties for Labor Code violations “on behalf of himself or 

herself and other current or former employees . . . .” (Lab. 

Code, § 2699, subd. (a).) A PAGA action may thus cover a 

vast number of employees, each of whom may have markedly 

different experiences relevant to the alleged violations. 

Under those circumstances, determining whether the 

employer committed Labor Code violations with respect to 

each employee may raise practical difficulties and may prove 

to be unmanageable. 

Indeed, PAGA claims may well present more 

significant manageability concerns than those involved in 

class actions. By its terms, PAGA includes no general 

requirement similar to the requirement in the class action 

context, that the plaintiff establish a well-defined 

community of interest, encompassing a showing that

common questions predominate over individual ones. (See 

Washington Mutual, supra, 24 Cal.4th at 913 [discussing 

class action requirements]; Williams v. Superior Court

(2017) 3 Cal.5th 531, 559 (Williams) [PAGA actions do not 

require showing of uniform policy because “recovery on 

behalf of the state and aggrieved employees may be had for 

each violation, whether pursuant to a uniform policy or 

not”].) Thus, a PAGA claim can cover disparate groups of 

employees and involve different kinds of violations raising

distinct questions.

Although not addressing the question before us, the 

California Supreme Court has acknowledged the potential 
31

for manageability difficulties in PAGA actions. In Williams, 

while rejecting a lower court’s suggestion that discovery in a 

PAGA action could be made contingent on the plaintiff’s 

ability to establish a uniform companywide policy, our 

Supreme Court noted that uniform policies may play a role 

in PAGA cases, explaining that “proof of a uniform policy is 

one way a plaintiff might seek to render trial of the action 

manageable.” (Williams, supra, 3 Cal.5th at 559.) 

We do not believe a court is powerless to address the 

challenges presented by large and complex PAGA actions

and is bound to hold dozens, hundreds, or thousands of 

minitrials involving diverse questions, depending on the 

breadth of the plaintiff’s claims. As explained above, courts 

have inherent authority to manage litigation with the aim of

protecting the parties’ rights and the courts’ ability to 

function. (See Weiss, supra, 9 Cal.5th at 863; Cohn, supra,

169 Cal.App.4th at 531.) Equipped with this tool, courts 

dealing with representative claims pay close attention to

manageability issues and intervene to ensure that the claims 

can be managed fairly and efficiently at trial. (See Duran, 

supra, 59 Cal.4th at 28-29; South Bay Chevrolet, supra, 72 

Cal.App.4th at 869.) If they cannot, the courts preclude 

these aggregation procedures. (See Duran, at 28-29; South 

Bay Chevrolet, at 869.) Given that PAGA actions involve 

comparable or greater manageability concerns than other 

representative claims, we hold that trial courts may 

similarly exercise their inherent authority to ensure the 
32

manageability of PAGA claims and, if necessary, may 

preclude the use of this procedural device.14

3. Wesson’s Arguments to the Contrary Are 

Unpersuasive

In support of his position that courts may not require 

that PAGA claims be manageable at trial and may not strike 

an unmanageable claim, Wesson contends: (1) Arias

precludes any manageability requirement in PAGA cases; (2) 

existing PAGA procedures preclude judicial creation of 

additional procedures, including a manageability 

requirement; (3) a manageability assessment is inconsistent 

with PAGA’s purposes; and (4) the state would not be subject 

to a manageability requirement and thus PAGA plaintiffs, 

acting as the state’s agents, should likewise be free from this 

requirement. As discussed below, we find none of these 

contentions convincing. 

14 Wesson argues that a PAGA action is “a substantive claim 

for civil penalties, owned by the State of California” and thus that 

a PAGA claim “extinguishe[s] the State of California’s property 

interests . . . .” (Italics omitted.) He is mistaken. As our 

Supreme Court explained, PAGA is “simply a procedural statute 

allowing an aggrieved employee to recover civil penalties . . . that 

otherwise would be sought by state labor law enforcement 

agencies.” (Amalgamated Transit Union, supra, 46 Cal.4th at 

1003.) Preventing a plaintiff from using this procedure has no 

effect on the state’s property rights; the state remains entitled to 

recover civil penalties for any Labor Code violations by the 

employer, subject to the applicable statute of limitations. 
33

First, Wesson argues that requiring manageability in 

PAGA cases would run afoul of the California Supreme 

Court’s holding in Arias, supra, 46 Cal.4th at 975 that class 

action requirements do not apply to PAGA actions. Not so. 

In Arias, the trial court granted the defendants’ motion to 

strike the plaintiff’s PAGA claim on the ground that he had 

failed to comply with class action pleading requirements. 

(Arias, supra, at 976.) After the Court of Appeal reversed 

this ruling, the defendant urged our Supreme Court to 

construe PAGA “as requiring that all actions under that act 

be brought as class actions.” (Arias, at 984.) The high court

declined, holding that PAGA claims need not satisfy class 

action requirements. (Arias, at 975.) In so doing, the court 

noted that PAGA actions may be brought as class actions but 

explained that at issue was “whether such actions must be 

brought as class actions.” (Arias, at 992, fn. 5.) Thus, Arias

stands for the proposition that PAGA claims need not qualify 

as class actions. Arias did not hold that any consideration 

relevant to class action certification is necessarily irrelevant 

in the context of PAGA. And nowhere did the court suggest 

that trial courts could not limit or preclude an

unmanageable PAGA action, if necessary. 

Second, Wesson contends that existing PAGA statutory 

procedures preclude the judicial imposition of a 

manageability requirement. Relying on In re Marriage of 

Woolsey (2013) 220 Cal.App.4th 881 (Woolsey), he argues 

that where a statute provides certain procedures, courts may 

not add to them. Wesson notes that the sole provision 
34

supplying procedural requirements for PAGA actions, 

section 2699.3, requires only that a prospective PAGA 

plaintiff inform the LWDA and the employer of the alleged 

violations, pay the agency a filing fee, if applicable, and 

await its decision on whether it will investigate the matter. 

(See § 2699.3.) Yet it is the narrow scope of section 2699.3’s 

requirements that defeats Wesson’s contention. 

In Woolsey, the Court of Appeal held that courts could 

not impose additional procedural requirements on marriage 

settlements because the Legislature had already “imposed 

specific requirements for settlement agreements and 

provided an expedient method of enforcing them.” (Woolsey, 

supra, 220 Cal.App.4th at 899.) According to the court, a

trial court’s refusal to enforce an agreement that complied 

with these requirements would thwart the Legislature’s 

intent. (Id. at 900.) By contrast, section 2699.3 imposes only 

procedural preconditions to filing a PAGA suit, intended to 

afford the LWDA an “opportunity to decide whether to 

allocate scarce resources to an investigation . . . .” (Williams, 

supra, 3 Cal.5th at 546.) This provision includes no 

instruction relevant to the management of ongoing PAGA 

litigation and reveals no legislative intent that would

preclude a court’s exercise of its authority in this area. 

Third, Wesson asserts that assessing PAGA actions for 

manageability would “‘obliterate’” their purpose. He argues

that PAGA’s punitive and deterrent objectives “cannot be 

accomplished if the State’s claims are cast aside whenever 

an employer complains that its uniform employment 
35

decisions cannot be justified absent a burdensome 

evidentiary showing.” We are unpersuaded. 

Contrary to Wesson’s suggestion, ensuring the 

manageability of claims is not tantamount to discarding

them on an employer’s mere objection. His argument 

wrongly assumes that trial courts will be quick to deem 

every PAGA claim hopelessly unmanageable. (See Mays v. 

Wal-Mart Stores, Inc. (C.D.Cal., Nov. 1, 2018, Case No. CV 

18-02318-AB (KKx)) 2018 U.S.Dist. LEXIS 223886, at *4, 

*13-*23 [concluding court had authority to strike 

unmanageable PAGA claims, but finding plaintiff’s claim 

was manageable]; Brown v. Am. Airlines, Inc. (C.D.Cal., Oct. 

5, 2015, CV 10-8431-AG (PJWx)) 2015 U.S.Dist. LEXIS 

150672, at *10-11 [striking PAGA action only in part, after 

finding that although some claims were not manageable,

claims relating to improper wage statements were 

manageable].) As discussed below, trial courts have 

discretion in assessing claims’ manageability at trial but

should not lightly strike even procedurally challenging 

claims. And many PAGA actions will raise no substantial 

manageability concerns, because of the number of employees 

involved, the nature of contested issues, or other factors. 

(Cf., e.g., Gonzalez v. Millard Mall Servs. (S.D.Cal., Aug. 21, 

2012, Civil No. 09cv2076-AJB (WVG)) 2012 U.S.Dist. LEXIS 

118133, at *2 [PAGA claim alleged defendants improperly 

issued employees out-of-state paychecks]; Decker v. Allstates 

Consulting Servs. (E.D.Cal., Dec. 30, 2020, No. 2:18-cv03216-KJM-DB) 2020 U.S.Dist. LEXIS 244823, at *2, *8 
36

[PAGA claim alleged failure to pay wages in timely manner, 

and failure to provide accurate itemized wage statements, as 

to about 16 employees]; Mireles v. Paragon Sys. (S.D.Cal.,

Feb. 9, 2016, Case No. 13-cv-00122-L-BGS) 2016 U.S.Dist. 

LEXIS 181284, at *11-*12 [PAGA notice alleged violations of 

overtime and rest- and meal-period requirements as to 13 

hourly employees].) That some claims may not be able to 

proceed without limitation will not nullify PAGA’s objectives. 

Finally, Wesson asserts that state agencies’ right to 

maintain Labor Code enforcement proceedings cannot be 

conditioned on manageability. Based on this premise, he

argues that because PAGA plaintiffs act as agents of the 

state, they too should be free to maintain claims regardless 

of manageability considerations. However, Wesson cites no 

authority, and we are aware of none, privileging the state 

above other civil litigants and exempting it from the courts’ 

inherent authority to manage the proceedings and ensure 

fair and efficient administration of justice.

15 While we think 

it unlikely that the state, in exercising its prosecutorial 

discretion, would choose to bring an unmanageable action

requiring individualized determinations as to hundreds or 

thousands of differently situated employees, requiring years 

15 Wesson discusses state agencies’ plenary power to 

investigate Labor Code violations and asserts that they are not 

subject to manageability criteria when “assesses[ing] whether an 

employer violated the Labor Code . . . .” These matters are 

irrelevant to the courts’ authority to ensure the manageability of 

a trial.
37

of trial court time, we see no reason the court would not be 

authorized to intervene should that occur. 

As we conclude that courts possess the power to ensure 

the manageability of PAGA claims at trial, including the 

power to strike claims, if necessary, we turn to consider the 

trial court’s decision to strike Wesson’s claim.

4. The Trial Court Did Not Abuse its Discretion 

in Striking Wesson’s Claims as Unmanageable 

a. Governing Principles

A court’s exercise of its inherent power to control the 

proceedings before it, its assessment of manageability issues, 

and its ruling on a motion to strike are all reviewed for 

abuse of discretion. (San Francisco Unified School Dist. ex 

rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th 

1212, 1227 [exercise of inherent power]; Duran, supra, 59 

Cal.4th at 25 [manageability issues]; Brandwein v. Butler

(2013) 218 Cal.App.4th 1485, 1497 [motion to strike].) A 

ruling constitutes an abuse of discretion when it is “‘so 

irrational or arbitrary that no reasonable person could agree 

with it.’” (Sargon Enterprises, Inc. v. University of Southern 

California (2012) 55 Cal.4th 747, 773.)

As in other contexts, manageability in the context of 

PAGA requires that individual issues can be tried fairly and 

efficiently. (Cf. Duran, supra, 59 Cal.4th at 28-29; South 

Bay Chevrolet, supra, 72 Cal.App.4th at 891, 897.) This 

assessment will depend on the circumstances of the case, 

and we do not believe any rigid rule can govern the court’s 
38

assessment. In general, however, a need for individualized 

proof pertaining to a very large number of employees will 

raise manageability concerns. (See, e.g., Lopez v. Liberty 

Mut. Ins. Co. (C.D.Cal., Feb. 11, 2020, Case No. 2:14-cv05576-AB-JCx) 2020 U.S.Dist. LEXIS 45634, at *15 [striking 

PAGA claim as unmanageable because it “would require a 

multitude of individualized assessments”]; Amiri v. Cox 

Communs. Cal., LLC (C.D.Cal. 2017) 272 F.Supp.3d 1187, 

1193 [PAGA claim may be unmanageable if it would require 

“numerous individualized determinations”].)

In considering manageability issues, courts should 

account for a defendant’s affirmative defenses. (Cf. Duran, 

supra, 59 Cal.4th at 28-29 [“In certifying a class action, the 

court must also conclude that litigation of individual issues, 

including those arising from affirmative defenses, can be 

managed fairly and efficiently”].) While trial courts “enjoy 

great latitude in structuring trials,” a trial management 

plan must allow the defendant a fair opportunity to present 

a defense. (Id. at 33; accord, Philip Morris USA v. Williams

(2007) 549 U.S. 346, 353 [“the Due Process Clause prohibits 

a State from punishing an individual without first providing 

that individual with ‘an opportunity to present every 

available defense’”].) In Duran, a putative class action 

alleged that the defendant had improperly classified 

employees as exempt outside salespersons, denying them 

overtime pay in violation of the Labor Code. (Duran, supra, 

at 12.) The trial court certified a class of 260 plaintiffs and

adopted a plan to determine the extent of the defendant’s 
39

liability by extrapolating from a sample of 20 employees, 

without a valid statistical model. (Id. at 16, 33.) The court 

then prevented the defendant from presenting evidence 

about any other class member, and found, based on 

testimony from the sample group, that the entire class had 

been misclassified as exempt. (Id. at 16, 35.) The California 

Supreme Court found this procedure impermissible: by 

improperly extrapolating liability findings from a small, 

unrepresentative sample group and refusing to admit 

evidence relating to employees outside that group, the trial 

court “significantly impaired” the defendant’s ability to 

present a defense. (Id. at 33.) The Duran court concluded, 

“the trial court could not abridge [the defendant]’s 

presentation of an exemption defense simply because that 

defense was cumbersome to litigate in a class action.” (Id. at

35.) 

That is not to say that a defendant’s trial plan for how 

to try an affirmative defense is inviolable. Where methods of 

common proof afford the defendant a fair opportunity to 

litigate every available defense, courts may limit the 

presentation of individualized evidence that would be 

cumulative or have little probative value. (See Duran, 

supra, 59 Cal.4th at 33; Evid. Code, § 352 [court may exclude 

evidence “if its probative value is substantially outweighed 

by the probability that its admission will . . . necessitate 

undue consumption of time”].) What must be preserved is 

the defendant’s ability to present the defense in a fair 

manner. (See Duran, supra, at 33.)
40

A trial court’s finding that a claim is unmanageable as 

presented will not always result in striking the claim. In the 

class certification context, our Supreme Court approvingly 

quoted a federal court’s explanation: “‘[i]f faced with what 

appear to be unusually difficult manageability problems at 

the certification stage, district courts have discretion to 

insist on details of the plaintiff’s plan for . . . managing the 

action.’ [Citation.] . . . [J]udges who encounter such 

challenges should attempt to leverage their ‘experience with 

and flexibility in engineering solutions to difficult problems 

of case management,’ and ‘refusing to certify on 

manageability grounds alone should be the last resort.’” 

(Noel v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 978.) 

Thus, if possible, the court should work with the parties to 

render a PAGA claim manageable by adopting a feasible

trial plan or limiting the claim’s scope. (Cf. Canon, supra, 68 

Cal.App.4th at 5 [in class action context, “the trial court has 

an obligation to consider the use of subclasses and other 

innovative procedural tools proposed by a party to certify a 

manageable class”]; Petersen v. Bank of America Corp. (2014) 

232 Cal.App.4th 238, 254 [to render mass action manageable 

on remand, “the trial court will have the power to require 

plaintiffs’ counsel to whip the third amended complaint’s 

desultory and scattered allegations against [defendant] into 

a tightly structured set of manageable subclaims and 

subclasses”].) As explained below, the trial court’s 

conclusion that the claim was unmanageable resulted not 

from the court’s reluctance to work with the parties, but 
41

from Wesson’s insistence that manageability of the action 

was irrelevant.

b. Analysis

The trial court did not abuse its discretion in striking 

Wesson’s PAGA claim. Without offering developed 

arguments on the subject, each party implies that the other 

had the burden to prove that Wesson’s PAGA claim was or 

was not manageable. We need not decide the issue, as the 

evidence before the trial court supported its ruling, even if 

Staples had the burden of proving unmanageability. 

Wesson’s claim asserted Labor Code violations as to 

346 Staples GMs, premised on Staples’s alleged 

misclassification of those employees as exempt executives. 

By their nature, claims involving employee misclassification 

are highly fact-dependent, as the inquiry focuses on the work 

actually performed by the employee, as well as the 

employer’s realistic expectations and the realistic 

requirements of the job. (See, e.g., Cal. Code Regs., tit. 8, 

§ 11070, subds. 1(A)(1)(e), 1(A)(2)(f).) Thus, trials involving 

misclassification claims often involve significant amounts of 

factual minutiae and therefore tend to be lengthy even when 

they involve only a few employees. (See, e.g., Heyen v. 

Safeway Inc. (2013) 216 Cal.App.4th 795, 799 [ten-day trial 

on single plaintiff’s misclassification claim]; Batze v. 

Safeway, Inc., supra, 10 Cal.App.5th at 475 [in bench trial on 

three employees’ misclassification claims, “the court waded 
42

through weeks of testimony from dozens of witnesses and a 

massive quantity of documentary evidence”].) 

In the class action context, our Supreme Court 

acknowledged that misclassification cases “can pose difficult 

manageability challenges.” (Duran, supra, 59 Cal.4th at 30.) 

It explained: “Although common proof may be possible if 

there are uniform job requirements or policies, an employer’s 

liability for misclassification under most Labor Code 

exemptions will depend on employees’ individual 

circumstances. Liability to one employee is in no way 

excused or established by the employer’s classification of 

other employees.”

16 (Duron, supra, at 36-37.)

The record in this case raised significant manageability 

concerns. Staples adduced evidence that the GM position

was not standardized, and that there was great variation in 

how Staples GMs performed their jobs and the extent to 

which they performed non-exempt tasks. The evidence 

showed that Staples stores varied widely in size, sales 

volume, staffing levels, labor budgets, and other variables 

16 The court recognized, however, that in some cases, 

misclassification could be decided on a classwide basis: “A class 

action trial may determine that an employer is liable to an entire 

class for misclassification if it is shown that the employer had a 

consistently applied policy or uniform job requirements and 

expectations contrary to a Labor Code exemption, or if it 

knowingly encouraged a uniform de facto practice inconsistent 

with the exemption. [Citation.] In such a case, the evidence for 

uniformity among class members would be strong, and common 

proof would be sufficient to call for the employer to defend its

claimed exemption.” (Duran, supra, 59 Cal.4th at 37-38.)
43

that affected GMs’ work experience. Staples’s evidence also 

showed that how GMs spent their time depended on their 

experience, aptitude, and managerial approaches, among 

other factors. The trial court credited this evidence, and 

Wesson does not contest it on appeal. Based on this 

evidence, Staples argued that Wesson’s claims would require 

individualized assessments of each GM’s classification and 

would lead to “an unmanageable mess” that “would waste 

the time and resources of the Court and the parties . . . .” 

Wesson agreed that Staples’s affirmative defense 

would require individualized assessments of the 346 GMs, 

stating in his briefing to the court that “Staples [would] need 

to proffer ‘a GM-by-GM, week-by-week analysis’ throughout 

the entire relevant time period that all of the GMs were 

properly classified as exempt executives.” And he did not 

suggest there was a manageable way to litigate Staples’s 

exemption defense. Instead, Wesson argued that the 

manageability inquiry need not consider a defendant’s 

affirmative defenses, asserting that “a manager 

misclassification PAGA claim is ‘manageable’ so long as [the] 

[p]laintiff’s prima facie case, concerning each aggrieved 

employee at issue, is provable by resort to common

evidence.” Thus, in addressing the litigation of Staples’s 

exemption defense in the trial plan he proposed to the court, 

Wesson insisted that it would be improper for him to “dictate 

how Staples should go about proving its exemption defense,” 

and simply pledged that he would not attempt to prevent 

Staples from proving its affirmative defense as it saw fit. At 
44

the hearing on the issue, the parties estimated they would 

need six trial days per GM to litigate GMs’ classification

individually, or roughly eight years.

The evidence and argument before the trial court 

revealed no apparent way to litigate Staples’s affirmative 

defense in a fair and expeditious manner, as the defense 

turned in large part on GMs’ actual work experience, yet

there was extensive variability in the group of Staples’s 

GMs. (Cf. Duran, supra, 59 Cal.4th at 33 [“If the variability 

[in a class] is too great, individual issues are more likely to 

swamp common ones and render the class action 

unmanageable”].) The parties agreed that individualized 

litigation of the issue as to each of 346 GM would require a 

trial spanning several years with many hundreds of 

witnesses. The trial court reasonably concluded that such a 

trial would “not meet any definition of manageability.” 

To be sure, Staples would have been able to offer 

common proof relating to its realistic expectations as to how 

GMs should spend their time and the realistic requirements 

of the job. In the unpublished portion of this opinion, we 

concluded its common evidence on those issues precluded

summary adjudication. But the fact that certain evidence is 

minimally sufficient for purposes of summary adjudication 

does not mean that a factfinder would find it credible and 

persuasive at trial. Thus, Staples could not be expected to 

limit its defense to common evidence on its realistic 

expectations and the realistic requirements of the job, while 

ignoring the issue of how individual GMs actually spent 
45

their time -- the “first and foremost” consideration under the 

IWC wage order. (Cal. Code Regs., tit. 8, § 11070, subd. 

1(A)(1)(e).) (See Duran, supra, 59 Cal.4th at 33.) 

Wesson’s argument below that a court should ignore 

affirmative defenses in assessing manageability makes little 

sense. That a plaintiff may prove his or her prima facie case 

relatively quickly and efficiently is of little comfort if any fair 

presentation of a cognizable defense would seize the court’s 

resources for years to come. (Cf. Weiss, supra, 9 Cal.5th at 

863; Cohn, supra, 169 Cal.App.4th 523, 531.) 

For the first time on appeal, Wesson contends that 

Staples had no due process right to call every GM as a 

witness at trial, and thus that the trial court could have 

rendered a trial on his claim manageable simply by limiting 

Staples’s ability to litigate its defense individually as to each 

GM. In support, Wesson points to certain language by our 

Supreme Court in Duran. The language he references does 

not support his contention. 

In holding that the trial court impermissibly 

constrained the defendant’s ability to present a defense, the 

Duran court explained, “While class action defendants may 

not have an unfettered right to present individualized 

evidence in support of a defense, . . . a class action trial 

management plan may not foreclose the litigation of relevant 

affirmative defenses, even when these defenses turn on 

individual questions.” (Duran, supra, 59 Cal.4th at 34.) The 

court further stated: “No case, to our knowledge, holds that 

a defendant has a due process right to litigate an affirmative 
46

defense as to each individual class member. However, if 

liability is to be established on a classwide basis, defendants 

must have an opportunity to present proof of their 

affirmative defenses within whatever method the court and 

the parties fashion to try these issues.” (Id. at 38.) 

This language, cited by Wesson, indicates that a 

defendant is not categorically entitled, in every case, to 

litigate an affirmative defense individually as to each class 

member. (See Duran, supra, 59 Cal.4th at 34, 38.) Yet in 

the same breath, the court stressed that defendants must 

have a fair opportunity to litigate their affirmative defenses 

in some way, even if that entails individualized evidence. 

(Ibid.) A trial court thus may not “significantly impair[]” the 

defendant’s ability to present a defense. (Id. at 33.) As 

discussed, the evidence before the trial court supported its 

determination that Staples’s affirmative defense could not be 

fairly litigated through common proof, and no evidence 

before the court suggested it could. 

In his reply brief, Wesson summarily asserts for the 

first time that Staples could have sought to manage 

individual issues through “‘pattern and practice evidence, 

statistical evidence, sampling evidence, expert testimony, 

and other indicators of . . . centralized practices . . . .’” He 

made no such claim below, relying instead on the assertion 

that the manageability of Staples’s defense was irrelevant. 

Moreover, nothing in the record suggested that these were 

feasible means of proving how individual GMs spent their 

time, and Wesson’s argument on appeal is woefully 
47

insufficient to establish that the trial court abused its 

discretion in concluding to the contrary. 

We do not hold that a PAGA misclassification case can 

never be managed through common-proof methods. 

However, Wesson’s lack of cooperation with the trial court’s 

inquiry in this regard stymied the court’s efforts to devise a 

plan that would allow the action to proceed, in whole or in 

part. On the record before us, the trial court’s determination 

that Wesson’s PAGA claim was unmanageable was 

eminently reasonable.

17 Accordingly, we find no abuse of 

discretion in the court’s decision to strike Wesson’s PAGA 

claim.18 

17 As Wesson does not argue that the trial court should have 

rendered his claim manageable by limiting its scope, we do not 

consider the issue.

18 We reject Wesson’s contention that the trial court 

erroneously believed he would have had the burden of disproving 

Staples’s affirmative defense of exemption at trial. The court’s 

thorough and thoughtful decision reflects a clear understanding 

of the parties’ respective burdens.
48

DISPOSITION

The trial court’s orders are affirmed. Staples is 

awarded its costs on appeal. 

CERTIFIED FOR PARTIAL PUBLICATION

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.