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MORGAN, LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

COSTA MESA

MORGAN, LEWIS & BOCKIUS LLP

BARBARA J. MILLER (SBN 167223) 

barbara.miller@morganlewis.com 

BRYAN L. JARRETT (SBN 278176) 

bryan.jarrett@morganlewis.com 

SARAH J. ALLEN (SBN 306286) 

sarah.allen@morganlewis.com 

600 Anton Blvd., Suite 1800 

Costa Mesa, CA 92626 

Tel: 949.399.7000 

Fax: 949.399.7001 

Attorneys for Defendant 

BEST BUY STORES, L.P.

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

STARVONA HARRIS and JONATHAN 

STRICKLAND, individually and on behalf of 

those similarly situated, 

Plaintiffs, 

vs. 

BEST BUY STORES, L.P., a limited 

partnership, 

Defendant. 

Case No. 4:17-cv-00446-HSG

DEFENDANT BEST BUY STORES, 

L.P.’S MOTION TO DISMISS OR 

STRIKE PORTIONS OF PLAINTIFFS’ 

SECOND AMENDED COMPLAINT 

Date: September 7, 2017 

Time: 2:00 p.m. 

Dept.: Courtroom 2 

Judge: Hon. Haywood S. Gilliam, Jr. 

Case 4:17-cv-00446-HSG Document 58 Filed 07/27/17 Page 1 of 32
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MORGAN, LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

COSTA MESA

NOTICE OF MOTION AND MOTION 

TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE THAT on September 7, 2017 at 2:00 p.m., or as soon thereafter 

as this matter may be heard before the Honorable Haywood S. Gilliam, Jr., United Stated District 

Court Judge, in Courtroom 2 of the above-entitled Court, located at 1301 Clay Street, Oakland, 

CA 94612, Defendant Best Buy Stores, L.P. will and hereby does move this Court for an order 

striking or dismissing the entire Seventh Cause of Action in Plaintiffs’ Second Amended 

Complaint (“SAC”) as insufficiently pleaded. In the alternative, Best Buy moves this Court for 

an order striking or dismissing the Seventh Cause of Action with prejudice to the extent it is 

based on (1) any claims for unpaid overtime, (2) any claims for inaccurate wage statements, (3) 

any claims for inaccurate wage statements based on allegations of unpaid overtime, (4) any 

claims for inaccurate wage statements based on allegations of payments for prior work periods, 

and/or (5) any claims for untimely payment of wages. 

Best Buy brings this motion Federal Rules of Civil Procedure 12(b)(6) and 12(f) because: 

(1) res judicata bars re-litigation of claims that have already been adjudicated; (2) collateral 

estoppel bars Plaintiff Starvona Harris from asserting any claim for unpaid overtime; (3) she has 

no standing to assert claims for harms she never experienced; (4) she failed to exhaust her 

mandatory administrative remedies; and (5) the Seventh Cause of Action is insufficiently pleaded. 

This motion is based upon this Notice and Motion, the accompanying Memorandum of 

Points and Authorities, the corresponding Request for Judicial Notice and Exhibits thereto, the 

pleadings and records on file herein, and on such other and further argument and evidence as may 

be presented at the time of the hearing. 

Dated: July 27, 2017 MORGAN, LEWIS & BOCKIUS LLP 

By s/ Barbara J. Miller 

Barbara J. Miller 

Bryan L. Jarrett 

Sarah J. Allen 

Attorneys for Defendant

Case 4:17-cv-00446-HSG Document 58 Filed 07/27/17 Page 2 of 32
TABLE OF CONTENTS

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I. INTRODUCTION .............................................................................................................. 1

II. STATEMENT OF RELEVANT FACTS AND PROCEDURAL BACKGROUND ......... 2

A. Strickland’s Prior Lawsuit on Behalf of the State of California ............................. 2

B. Harris’s Prior Lawsuits ........................................................................................... 3

1. Harris’s Deficient PAGA Letter.................................................................. 3

2. Harris Filed Suit in this Court with the Same Allegations as her 

PAGA Letter, and this Court Held that Harris Had Failed to Place 

“Points” and Other Compensation at Issue. ................................................ 5

3. This Court Adjudicated Harris’s Overtime Claim in Best Buy’s 

Favor, and Allowed Wage Statement Claims to Survive Only on the 

“Previous Period Hrs” Theory. ................................................................... 5

4. Harris Then Filed two New Suits Challenging the Same Alleged 

Labor Code Violations—This Suit and Another Suit Pending in 

State Court. .................................................................................................. 6

III. ARGUMENT ...................................................................................................................... 7

A. Applicable Legal Standards .................................................................................... 8

B. Res Judicata Bars the Re-Litigation of the Same Primary Rights on Behalf 

of the State............................................................................................................... 9

1. The Decision in the Prior Lawsuit Was Final and on the Merits. ............. 10

2. This Litigation Involves the Same Primary Rights, or “Cause of 

Action,” for Purposes of Res Judicata ...................................................... 10

3. Privity Exists Because Both Lawsuits Involved PAGA Claims 

Asserted on Behalf of Both the State and Plaintiffs .................................. 12

C. Collateral Estoppel Bars Harris from Asserting an Overtime Claim. ................... 14

D. Harris Cannot Pursue PAGA Claims on Behalf of Others for An Alleged 

Overtime Violation She Never Experienced. ........................................................ 15

1. PAGA’s Text and Legislative History Confirm that Plaintiffs Must 

Suffer the Harms they Seek to Litigate. .................................................... 15

2. This Court, and Other Courts, Have Held that Plaintiffs Must 

Experience Each Harm they Allege under PAGA. ................................... 17

3. Adopting Harris’s Interpretation of PAGA’s Standing Requirement 

Would Have A Profoundly Adverse Impact On Absent Individual’s 

Rights And Would Lead to Absurd Results. ............................................. 18

E. Harris’s PAGA Claim Should Be Limited to Only Those “Facts and 

Theories” that She Administratively Exhausted—which Excludes, For 

Instance, Claims Concerning “Points” or “Previous Period Hrs” ......................... 20

F. Harris Fails to Adequately Plead Her PAGA Claim. ............................................ 22

IV. CONCLUSION ................................................................................................................. 23

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TABLE OF AUTHORITIES 

Page(s) 

CASES

Adam Bros. Farming v. Cty. of Santa Barbara, 

604 F.3d 1142 (9th Cir. 2010) .....................................................................................................9 

Aguirre v. Genesis Logistics, 

2015 WL 3755239 (C.D. Cal. June 16, 2015) ..........................................................................11 

Alcantar v. Hobart Serv., 

800 F.3d 1047 (9th Cir. 2015) ...................................................................................................21 

Alvarez v. Autozone, Inc., 

No. 14-cv-02471 (C.D. Cal. Jul. 8, 2015) .................................................................................17 

Alvarez v. May Dep’t Stores, 

143 Cal. App. 4th 1223 (2006)..................................................................................................14 

Amey v. Cinemark USA Inc, 

No. 13-CV-05669-WHO, 2015 WL 2251504 (N.D. Cal. May 13, 2015) ................................22 

Arias v. Superior Court of San Joaquin County, 

46 Cal.4th 969 (2009) .............................................................................................12, 13, 14, 18 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ..............................................................................................................8, 22 

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) ..............................................................................................................8, 22 

Boeken v. Philip Morris USA, Inc., 

48 Cal.4th 788 (2010) ...............................................................................................................10 

Bookout v. MUFG Union Bank, 

2016 WL 5404387 (Cal. Ct. App. Sept. 28, 2016) ...................................................................11 

Boorstein v. CBS Interactive, Inc. 

222 Cal. App. 4th 456 (2013)....................................................................................................19 

Bradescu v. Hillstone Rest. Grp., Inc., 

2014 WL 5312546 (C.D. Cal. Sept. 18, 2014) ..........................................................................21 

Bufil v. Dollar Financial Group, Inc., 

162 Cal. App. 4th 1193 (2008)..................................................................................................14 

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Caliber Bodyworks, Inc. v. Superior Court

134 Cal. App. 4th 365 (2005)....................................................................................................20 

Cancilla v. Ecolab Inc., 

2014 WL 2943237 (N.D. Cal. June 30, 2014) ............................................................................9 

Coachella Valley County Water District v. Stevens, 

206 Cal. 400, 274 P. 538 (1929) ...............................................................................................13 

Crowley v. Katleman, 

8 Cal. 4th 666 (1994) ..................................................................................................................9 

Dyer v. United States, 

832 F.2d 1062 (9th Cir. 1987) ...................................................................................................19 

Eichman v. Fotomat Corp., 

147 Cal. App. 3d 1170 (Ct. App. 1983) ................................................................................9, 12 

Fantasy, Inc. v. Fogerty, 

984 F.2d 1524 (9th Cir. 1993) .....................................................................................................8 

Federated Dep’t Stores, Inc v. Moitie, 

452 U.S. 394 (1981) ....................................................................................................................9 

Fireside Bank v. Sup. Ct .

40 Cal.4th 1069 .........................................................................................................................13 

Fobroy v. Video Only, Inc., 

2014 WL 6306708 (N.D. Cal. Nov. 14, 2014) ....................................................................16, 17 

Franceschi v. Franchise Tax Bd., 

1 Cal. App. 5th 247, 257 (App. 2d Dist. 2016) ...............................................................9, 10, 11 

Gustafson v. U.S. Bank N.A., 

618 F. App'x 921 (9th Cir. 2015) ..............................................................................................14 

Harris v. Best Buy Stores, L.P., 

2015 WL 6003203 (N.D. Cal. Oct. 15, 2015) .............................................................................5 

Harris v. Best Buy Stores, L.P., 

2016 WL 4073327 (N.D. Cal. Aug. 1, 2016) ..............................................................................6 

Harris v. Best Buy Stores, L.P., 

2016 WL 6248893 (N.D. Cal. Oct. 26, 2016) ...................................................................5, 6, 14 

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Hill v. Opus Corp., 

841 F. Supp. 2d 1070 (C.D. Cal. 2011).......................................................................................8 

Holak v. K Mart Corp., 

2015 WL 4756000 (E.D. Cal. Aug. 11, 2015) ..........................................................................21 

Holak v. Kmart Corp., 

2015 WL 2384895 (E.D. Cal. May 19, 2015) ...........................................................................18 

Jeske v. Maxim Healthcare Services, Inc., 

2012 WL 78242 (E.D. Cal. Jan. 10, 2012) ................................................................................18 

Jones v. San Diego Metro. Transit Sys., 

2016 WL 3952154 (S.D. Cal. July 22, 2016) ...........................................................................11 

Kairy v. SuperShuttle Int'l, 

660 F.3d 1146 (9th Cir. 2011) .............................................................................................16, 19 

Kay v. City of Rancho Palos Verdes, 

504 F.3d 803 (9th Cir. 2007) .......................................................................................................9 

Kaye v. Bd. of Trustees of San Diego Cty. Law Library, 

2010 WL 2978082 (Cal. Ct. App. July 30, 2010) .......................................................................9 

Knievel v. ESPN, 

393 F.3d 1068 (9th Cir. 2005) .....................................................................................................8 

McDonald v. Heard, 

37 Cal. App. 2d 521 (Dist. App. 4th Dist. 1940) ......................................................................10 

McQuillion v. Schwarzenegger, 

369 F.3d 1091 (9th Cir. 2004) ...................................................................................................14 

MGIC Indem. Corp. v. Weisman, 

803 F.2d 500 (9th Cir. 1986) .......................................................................................................8 

Molina v. Dollar Tree Stores, Inc., 

2013 BL 386549 (C.D. Cal. Aug. 09, 2013) .............................................................................18 

N. Star Int'l v. Ariz. Corp. Comm’n, 

720 F.2d 578 (9th Cir. 1983) .......................................................................................................8 

Panos v. Great Western Packing Co., 

21 Cal.2d 636 (1943) ..........................................................................................................10, 12 

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People v. Pacific Land Research Co. 

20 Cal.3d 10 (1977) ..................................................................................................................13 

Plaisted v. Dress Barn, Inc., 

2013 WL 300913 (C.D. Cal. Jan. 25, 2013) .............................................................................22 

Premier Elec. Constr. Co. v. N.E.C.A., Inc. 

814 F.2d 358 (7th Cir. 1987) .....................................................................................................13 

Raphael v. Tesoro Ref. & Mktg. Co. LLC, 

2015 WL 5680310 (C.D. Cal. Sept. 25, 2015) ..........................................................................22 

Ready Transp. Inc. v. AAR Mfg., Inc., 

627 F.3d 402 (9th Cir. 2010) .......................................................................................................8 

Rope v. Auto-Chlor System of Washington, Inc., 

220 Cal. App. 4th 635 (2013)....................................................................................................18 

Ruskell v. North Cnty. Fire Protection District of Monterey Cnty, 

2016 WL 1365949 (N.D. Cal. Apr. 6, 2016) ..............................................................................8 

Rynsburger v. Dairymen's Fertilizer Cooperative, Inc., 

266 Cal. App. 2d 269 (1968) .....................................................................................................13 

Schulken v. Washington Mut. Bank, Henderson, NV, 

2010 WL 3987680 (N.D. Cal. Oct. 12, 2010) .............................................................................8 

SEC v. Sands, 

902 F. Supp. 1149 (C.D. Cal. 1995) ...........................................................................................8 

Setzler v. City & Cty. of San Francisco, 

2008 WL 2264481 (N.D. Cal. June 2, 2008) ..............................................................................8 

Sidney-Vinson v. A.H. Robins Co., 

697 F.2d 880 (9th Cir. 1993) .......................................................................................................8 

Soto v. Castlerock Farming & Transp. Inc., 

2012 WL 1292519 (E.D. Cal. Apr. 16, 2012) ...........................................................................22 

St. Martin Evangelical Lutheran Church v. South Dakota, 

451 U.S. 772 (1981) ..................................................................................................................19 

Stafford v. Dollar Tree Stores, Inc., 

2014 WL 6633396 (E.D. Cal. Nov. 21, 2014) ..........................................................................18 

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Stoddart v. Express Services, Inc., 

2015 WL 5522142 (E.D. Cal. Sept. 16, 2015) ..........................................................................21 

Studley v. All. Healthcare Servs., Inc., 

2012 WL 12286522 (C.D. Cal. July 26, 2012) .........................................................................22 

Susan B. Anthony List v. Driehaus, 

134 S. Ct. 2334 (2014) ..............................................................................................................19 

Sutphin v. Speik, 

15 Cal.2d 195 (1940) ................................................................................................................10 

Trujillo v. Cnty. of Santa Clara, 

775 F.2d 1359 (9th Cir. 1985) ...................................................................................................13 

Vecchioli v. Borel Private Bank & Trust Co., 

2005 WL 3021945 (N.D. Cal. Nov. 10, 2005) ............................................................................9 

Villacres v. ABM Industries Inc., 

189 Cal. App. 4th 562 (App. 2d Dist. 2010) .............................................................9, 10, 11, 12 

Walter v. Hughes Comm’s, Inc., 

682 F. Supp. 2d 1031 (N.D. Cal. 2010) ......................................................................................8 

Warga v. Cooper, 

44 Cal. App. 4th 371 (1996)......................................................................................................11 

Warren v. Fox Family Worldwide, Inc., 

328 F.3d 1136 (9th Cir. 2003) .....................................................................................................8 

Wassink v. Affiliated Computers Services, Inc., 

2011 WL 13077358 (C.D. Cal. Dec. 21, 2011) ........................................................................17 

Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC, 

814 F. Supp. 2d 1033 (S.D. Cal. 2011) .......................................................................................8 

Zevnik v. Superior Court, 

59 Cal. App. 4th 76 (2008)..................................................................................................10, 11 

STATUTES

Cal. Code Civ. P. § 1049 .................................................................................................................10 

Cal. Lab. Code § 226............................................................................................................... passim 

Cal. Lab. Code § 2699............................................................................................................. passim 

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Cal. R. Ct. 8.104(a)(1)(C) ...........................................................................................................3, 10 

Cal. R. Ct. 12(b)(6) ...........................................................................................................................8 

Fed. R. Civ. P. 12(f) ..........................................................................................................................8 

OTHER AUTHORITIES

7 Witkin, Cal. Procedure (5th ed. 2008) ...........................................................................................9 

Rest.2d Judgments, § 41, subd. (1)(d) .............................................................................................13 

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MORGAN, LEWIS &

BOCKIUS LLP 

ATTORNEYS AT LAW

COSTA MESA

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION

This is Plaintiffs’ fourth attempt to pursue wage-and-hour claims against Best Buy on 

behalf of the State of California under the Private Attorneys General Act of 2004, California 

Labor Code § 2699, et seq. (“PAGA”). As insufficiently pleaded, Plaintiff Starvona Harris’s 

PAGA claim1 primarily asserts five separate alleged “wrongs:” (1) failure to pay overtime based 

on how Best Buy calculated overtime in weeks where employees received Path to Excellence 

points, worked overtime, and eventually earned a short term incentive bonus (the “PAGA 

Overtime Claim”); (2) inaccurate wage statements based on alleged inaccurate calculation of 

overtime (the “Wage Statement Overtime Claim”); (3) inaccurate wage statements based on 

“Previous Period Hours” entries on wage statements (the “Previous Period Hours” claim); (4) 

untimely payment of wages, and (5) failure to reimburse all expenses. See SAC, ¶ 59. 

As a threshold matter, the Los Angeles County Superior Court recently entered judgment 

concerning the same primary rights at issue in the currently pleaded PAGA claim, and that 

judgment must be respected. There, as in this case, Plaintiff Jonathan Strickland sued Best Buy 

for alleged failures to properly pay overtime, failures to issue proper itemized wage statements, 

failures to timely pay employees, and so forth. See Dkt 24-1, Ex. 1 (Complaint from Strickland v. 

Best Buy Stores, L.P., Case No. 579742). Critically, Strickland asserted this claim on behalf of 

the State of California under PAGA. Id. After more than a year of litigation, the State Court 

granted summary judgment for Best Buy (and against Strickland and the State of California) as to 

all of the claims asserted. That judgment became final on or about April 3, 2017. Dkt. 24-1, Ex. 

2. Per the doctrine of res judicata, those same primary rights may not be re-litigated here. 

Separately from the res judicata impact of Strickland’s previous litigation, Harris cannot 

assert the PAGA Overtime Claim or the derivative Wage Statement Overtime Claim for any one 

of the following independent reasons: First, Harris already litigated and lost her overtime claim, 

and the doctrine of collateral estoppel bars re-litigation of the same claim in the guise of a PAGA 

claim. Second, this Court has already found that Harris is not an aggrieved employee with respect 

1

 Plaintiff Harris is the only Plaintiff who asserts the PAGA claim at issue here. 

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COSTA MESA

to an overtime claim, and she therefore has no standing to bring this claim on behalf of anyone 

else, including the State. The legislative history of PAGA confirms the unremarkable conclusion 

that PAGA does not give plaintiffs license to drag employers through extremely costly and 

duplicative litigation for alleged violations that the plaintiffs themselves never experienced. And 

third, PAGA bars plaintiffs from asserting any claims that were not administratively exhausted 

prior to filing suit; thus, Harris cannot assert a PAGA claim for improper payments resulting from 

“points” compensation or “Previous Period Hrs” payments. 

Given the above, the Court should dismiss or strike all PAGA allegations relating to 

inaccurate wage statements, the PAGA Overtime Claim, the Wage Statement Overtime Claim, 

the Previous Period Hours claim, and untimely payment of wages. Furthermore, the Court 

should dismiss the PAGA claim in its entirety as insufficiently pleaded in any event. Dismissing 

or striking these improperly asserted claims would significantly simplify and limit the scope of 

this litigation (especially when considered in conjunction with Best Buy’s pending motion to 

dismiss Strickland’s claims, which would comprehensively eliminate all overtime claims).2

II. STATEMENT OF RELEVANT FACTS AND PROCEDURAL BACKGROUND

This case has a complicated procedural history given that Plaintiffs have filed numerous 

suits against Best Buy in several different courts. 

A. Strickland’s Prior Lawsuit on Behalf of the State of California 

Strickland filed his first lawsuit in State Court in April 2015 on behalf of the State of 

California under PAGA. Dkt. 24-1, Ex. 1. As he acknowledged, the State allowed him to 

litigate these claims on its behalf because it “chose[] not to investigate” or file its own suit after 

receiving his mandatory pre-lawsuit letter. See id. at ¶ 29. On behalf of the State, he broadly 

alleged (among other things) that Best Buy failed to properly pay overtime, failed to provide 

accurate wage statements, and failed to timely pay wages. As to unpaid overtime claim, for 

instance, the complaint broadly alleged that: 

2

 Best Buy filed its Motion to Dismiss, or in the Alternative, Motion for Judgment on the 

Pleadings as to Strickland’s Claims on April 13, 2017. Dkt. 24. The Court has not ruled on it. 

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COSTA MESA

Id. at ¶¶ 5, 23. The complaint similarly alleged a wide variety of violations for wage statements:

Id. at ¶ 24. The complaint additionally alleged that Best Buy failed to timely pay its employees’ 

wages both during and after their employment. It alleged, for instance: 

Id. at ¶ 25; see also id. at ¶¶ 4, 7-8. 

The State Court granted summary judgment for Best Buy, dismissing Strickland’s and the 

State’s claims with prejudice on October 5, 2016. Dkt. 24-1, Ex. 2. No appeal was filed, the 

deadline for which has now passed. See Cal. R. Ct. 8.104(a)(1)(C). 

B. Harris’s Prior Lawsuits 

1. Harris’s Deficient PAGA Letter 

On February 11, 2015, Harris mailed to the California Labor Workforce Development 

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COSTA MESA

Agency (“LWDA”) her mandatory pre-lawsuit letter concerning her claims against Best Buy. See

Request for Judicial Notice (“RJN”), Ex. A. PAGA expressly requires that such letters specify 

“the facts and theories” supporting alleged Labor Code violations before the employee files a 

civil action under PAGA. Lab. Code § 2699.3(a)(1) (emphasis added). Although Harris’s letter 

generically asserts claims for inaccurate wage statements and unpaid overtime, the letter says 

nothing about, for instance, any wage statement violations relating to “Previous Period Hrs” 

entries on wage statements. See RJN, Ex. A. It likewise says nothing about alleged unpaid 

overtime due to failures to include “points” in overtime calculations, which later evolved to 

become the basis Harris’s overtime claim. Id.

3

As to the wage statements, Harris’s letter largely parroted the wage statement 

requirements under Labor Code § 226(a) and baldly concluded that Best Buy somehow violated 

them; the letter does not suggest that pay statements showing “Previous Period Hrs” are wrong: 

RJN, Ex. A at 2. As to overtime, the letter’s only actual factual allegation is that Best Buy failed 

to pay overtime because it did not “include bonuses in the calculation of the regular rate”: 

3

 In the Second Amended Complaint, Strickland alleges that Best Buy incorrectly calculated 

overtime because it did not include one bonus (the “Monthly STI bonus”) in its calculation of the 

Path to Excellence bonuses. SAC, ¶ 17. 

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Id. at 3. The letter says nothing about failure to include “points,” “Path to Excellence payments,” 

or any other form of compensation in STI bonus calculations themselves (which is the overtime 

claim here). The letter does not even reference “points” or the “Path to Excellence Program.” Id. 

2. Harris Filed Suit in this Court with the Same Allegations as her PAGA 

Letter, and this Court Held that Harris Had Failed to Place “Points” 

and Other Compensation at Issue. 

Harris then filed her first suit in this Court. Her complaint’s allegations mirrored those in 

the above PAGA letter. See RJN, Ex. B. That is, Harris alleged that Best Buy paid Harris a 

nondiscretionary bonus and should have, but did not, take “the bonus . . . into account when 

determining the regular rate of pay for overtime purposes.” Id. at ¶ 17. Her complaint 

referenced only monthly incentive bonuses and alleged that overtime was not paid on the bonuses 

received: “although [Harris] earned a bonus for fiscal month June 2015 . . . and worked overtime 

hours during the pay periods in that fiscal month, on information and belief she did not receive an 

overtime premium for the bonus.” Id. 

Later, however (after apparently discovering that Best Buy does pay overtime on 

bonuses), Harris’s overtime theory evolved to assert that Best Buy failed to properly calculate 

overtime by not including in its monthly bonus calculations “a percentage of . . . [Path to 

Excellence] points . . . .” See, e.g., Harris v. Best Buy Stores, L.P., 2016 WL 6248893, at *2 

(N.D. Cal. Oct. 26, 2016) (emphasis added). Harris first moved to compel discovery concerning 

points, but this Court barred the discovery as “not relevant” given that Harris had not yet 

pleaded anything related to points (just as in her PAGA letter). See Harris v. Best Buy Stores, 

L.P., 2015 WL 6003203, at *2 (N.D. Cal. Oct. 15, 2015). In other words, this Court specifically 

held the overtime allegations in her Complaint (and, by extension, her PAGA letter) wholly failed 

to place the “points” or other alleged compensation at issue. See id. 

3. This Court Adjudicated Harris’s Overtime Claim in Best Buy’s Favor, 

and Allowed Wage Statement Claims to Survive Only on the “Previous 

Period Hrs” Theory. 

After losing her motions to compel, Harris further amended her complaint to add her new 

overtime claims concerning the inclusion of points in STI bonus calculations, along with wage 

statement claims relating to “Previous Period Hrs” entries on her wage statements. See Exhibit A 

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to SAC at ¶ 17, 19. Harris did not, however, file a new letter with the LWDA addressing either 

theory or the factual basis for either theory. 

This Court ultimately dismissed Harris’s overtime claim with prejudice. See Harris v. 

Best Buy Stores, L.P., 2016 WL 6248893 (N.D. Cal. Oct. 26, 2016). In its original decision, this 

Court denied summary judgment on the overtime claim, stating that, although a “close call,” the 

simultaneous method of computing overtime requires an employer to apply a fixed percentage to 

total earnings. Best Buy additionally argued that under either method of computing overtime, 

Harris was fully paid as a mathematical fact, but this Court did not ultimately resolve the issue. 

Harris v. Best Buy Stores, L.P., 2016 WL 4073327 (N.D. Cal. Aug. 1, 2016) at *5 . Best Buy 

then moved to certify the decision for interlocutory appeal, and also moved for reconsideration 

based on the fact that Harris was not underpaid because she never received points, worked 

overtime, and earned an STI bonus in the same workweek—meaning she could not possibly have 

been underpaid overtime. RJN, Ex. C. This Court then granted Best Buy’s motion for 

reconsideration—agreeing that Harris could not pursue any overtime claim. 2016 WL 6248893, 

at *2 (“[T]here is no way that [Harris] could have lost overtime wages through Defendant’s 

failure to calculate the STI bonus as a percentage of PTE points.”). This Court then dismissed 

Harris’s overtime claim with prejudice, without needing to address Best Buy’s other arguments 

(including Best Buy’s mathematical arguments showing Harris fully received all overtime owed 

to her regardless of calculation methodology).4

4. Harris Then Filed Two New Suits Challenging the Same Alleged 

Labor Code Violations—This Suit and Another Suit Pending in State 

Court. 

After this Court dismissed Harris’s overtime claims with prejudice, she refused this 

Court’s offer to assert CAFA jurisdiction and chose to file a lawsuit in State Court instead. Dkt. 

1. Best Buy removed this action to this Court in January 2017. Id. Harris served Best Buy with 

her third lawsuit, asserting only an alleged PAGA representative action, in February 2017. RJN, 

Ex. D. Best Buy has moved to dismiss or stay that action pending the resolution of her claims in 

4

 This Court then denied interlocutory appeal “[b]ecause the Court has granted Defendant’s 

motion for summary judgment on Plaintiff’s overtime claims.” 2016 WL 6248893, at *3. 

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this Court; before the State court could address the motions, however, Harris amended the 

complaint to assert the PAGA claim in this lawsuit as well. See Dkt. No. 55. 

In this lawsuit—like in Strickland’s previous PAGA lawsuit on behalf of the State—the 

complaint alleges a PAGA claim for alleged unpaid overtime, failure to timely pay wages, and 

inaccurate wage statements. Notably, the allegations are remarkably similar to the above-quoted 

allegations from the previous lawsuit. See, e.g., SAC, ¶ 19 (alleging that Best Buy violated Labor 

Code § 226 by failing to include the correct hours worked, correct gross and net wages due, the 

correct hourly rates of pay “and the correct number of hours worked at those rates of pay and the 

correct hours worked”); id. at ¶ 17 (“Although bonuses and incentives should have been taken 

into account when determining the regular rate of pay for overtime purposes, on information and 

belief DEFENDANT failed to do so. This resulted in Strickland and other current and former 

non-exempt employees of DEFENDANT not receiving all overtime compensation due them.”); 

id. at ¶ 20 (“[W]hen PLAINTIFFS and other former non-exempt California employees of 

DEFENDANT were discharged or resigned, DEFENDANT did not pay them all wages due 

including, but not limited to, regular and/or unpaid overtime wages.”). The vague and conclusory 

allegations in the PAGA claim itself likewise resemble the same allegations. See, e.g., SAC, ¶ 59 

(alleging, among other things, failures to provide “overtime pay” and failures to provide wage 

statements that “set forth the correct number of hours worked, the correct hourly rates of pay and 

gross and net wages earned, among other things”). 

III. ARGUMENT 

There are multiple, independent reasons that Harris’s PAGA claims fail here. First, res 

judicata bars re-litigation of the same primary rights at issue in Strickland’s prior PAGA lawsuit. 

Second, collateral estoppel bars Harris from asserting underpaid overtime claims. Third, and 

relatedly, Harris has no standing to sue for unpaid overtime. Fourth, Harris failed to 

administratively exhaust any overtime theory relating to payments for previous payments worked 

and Best Buy’s “points” and “Path to Excellence Programs” before filing suit. And Fifth, Harris 

fails to sufficiently plead her PAGA claim in its entirety. 

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A. Applicable Legal Standards

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, ‘to state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (citing and quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007). 

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing 

Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported 

by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. And the court need not 

accept as true “legal conclusions merely because they are cast in the form of factual allegations.” 

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citation omitted). 

On a motion to dismiss, courts generally consider the face of the complaint and matters 

judicially noticeable. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986) (noting 

that “[o]n a motion to dismiss, we may take judicial notice of matters of public record outside the 

pleadings,” and accordingly considering documents filed in another lawsuit); N. Star Int'l v. Ariz. 

Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Courts also may consider documents 

referenced in the complaint that are accepted as authentic. Knievel v. ESPN, 393 F.3d 1068, 1076 

(9th Cir. 2005).5

This Court may also strike improper claims and allegations. Fed. R. Civ. P. 12(f); Ready 

Transp. Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010); Setzler v. City & Cty. of San 

Francisco, 2008 WL 2264481, at *8 (N.D. Cal. June 2, 2008) (confirming that courts may strike 

matters on grounds of res judicata (citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527-28 (9th 

Cir. 1993) rev’d on other grounds, 510 U.S. 517, 521 (1994)). “[T]he function of a Rule 12(f) 

motion to strike is to avoid the expenditure of time and money that must arise from litigating 

spurious issues by dispensing with those issues prior to trial . . . .” Sidney-Vinson v. A.H. Robins 

5

 Courts regularly grant motions to dismiss parts of claims. See, e.g., Hill v. Opus Corp., 841 F. 

Supp. 2d 1070, 1082 (C.D. Cal. 2011) (Rule 12(b)(6) motion granted as to part of single claim); 

Weiland Sliding Doors & Windows, Inc. v. Panda Windows & Doors, LLC, 814 F. Supp. 2d 1033, 

1042 (S.D. Cal. 2011) (same); Ruskell v. North Cnty. Fire Protection District of Monterey Cnty, 

2016 WL 1365949, at *5 (N.D. Cal. Apr. 6, 2016) (same); Schulken v. Washington Mut. Bank, 

Henderson, NV, 2010 WL 3987680, at *5 (N.D. Cal. Oct. 12, 2010) (same); Walter v. Hughes 

Comm’s, Inc., 682 F. Supp. 2d 1031, 1047 (N.D. Cal. 2010) (same). 

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Co., 697 F.2d 880, 885 (9th Cir. 1993). In deciding such a motion, the court may consider both 

the complaint and matters judicially noticeable. SEC v. Sands, 902 F. Supp. 1149, 1165 (C.D. 

Cal. 1995) (citation omitted).

B. Res Judicata Bars the Re-Litigation of the Same Primary Rights on Behalf of 

the State. 

To determine the preclusive effect of a California state court decision, a federal court 

applies California law. Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808 (9th Cir. 2007). 

“California’s res judicata standard is based on a primary rights theory.” Vecchioli v. Borel 

Private Bank & Trust Co., 2005 WL 3021945, at *5 (N.D. Cal. Nov. 10, 2005). A “primary right 

is simply the plaintiff's right to be free from the particular injury suffered.” Villacres v. ABM 

Industries Inc., 189 Cal. App. 4th 562, 577 (App. 2d Dist. 2010) (quotations omitted)). Both the 

California Supreme Court and Ninth Circuit have noted that California’s primary rights theory: 

provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, 

a corresponding “primary duty” of the defendant, and a wrongful act by the 

defendant constituting a breach of that duty. The most salient characteristic of a 

primary right is that it is indivisible: the violation of a single primary right gives 

rise to but a single cause of action. A pleading that states the violation of one 

primary right in two causes of action contravenes the rule against ‘splitting’ a 

cause of action. 

Crowley v. Katleman, 8 Cal. 4th 666, 681 (1994) (citations omitted); Adam Bros. Farming v. Cty. 

of Santa Barbara, 604 F.3d 1142, 1148–49 (9th Cir. 2010). As explained further below, res 

judicata bars a plaintiff from re-litigating primary rights that have already been adjudicated—

even if the plaintiff presents new legal or factual theories in the subsequent lawsuit. See, e.g., 

Eichman v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174 (Ct. App. 1983) (confirming that 

pleading “different theories of recovery” or pleading “new facts supporting recovery” do not 

allow a party to re-litigate the same primary right). 

Res judicata “seeks to curtail multiple litigation causing vexation and expense to the 

parties and wasted effort and expense in judicial administration.” Kaye v. Bd. of Trustees of San 

Diego Cty. Law Library, 2010 WL 2978082, at *5 (Cal. Ct. App. July 30, 2010) (quoting 7 

Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, p. 938)); Cancilla v. Ecolab Inc., 2014 

WL 2943237, at *3 (N.D. Cal. June 30, 2014) (“[T]he doctrine of res judicata serves the ‘vital 

public interest’ of having an end to litigation, especially in ‘view of today’s crowded dockets.’” 

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(quoting Federated Dep’t Stores, Inc v. Moitie, 452 U.S. 394, 401 (1981)); Franceschi v. 

Franchise Tax Bd., 1 Cal. App. 5th 247, 257 (App. 2d Dist. 2016) (“A predictable doctrine of res 

judicata benefits both the parties and the courts because it seeks to curtail multiple litigation 

causing vexation and expense to the parties and wasted effort and expense in judicial 

administration.” (emphasis removed; quotation omitted)). 

In sum, res judicata bars subsequent litigation when “(1) the decision in the prior 

proceeding is final and on the merits; (2) the present action is on the same cause of action as the 

prior proceeding; and (3) the parties in the present action or parties in privity with them were 

parties to the prior proceeding.” Franceschi, 1 Cal. App. 5th at 257 (quoting Zevnik v. Superior 

Court, 59 Cal. App. 4th 76 , 82 (2008)). Each of those elements is met here. 

1. The Decision in the Prior Lawsuit Was Final and on the Merits. 

The State Court granted judgment for Best Buy (and against Strickland and the State) on 

October 5, 2016. Dkt. 24-1, Ex. 2. This decision was not challenged on appeal, and the deadline 

to file an appeal has now passed. See Cal. R. Ct. 8.104(a)(1)(C). The Superior Court’s judgment 

is therefore now final. Cal. Code Civ. P. § 1049; McDonald v. Heard, 37 Cal. App. 2d 521, 526 

(Dist. App. 4th Dist. 1940). 

2. This Litigation Involves the Same Primary Rights, or “Cause of 

Action,” for Purposes of Res Judicata 

“[F]or purposes of . . . res judicata . . . the phrase ‘cause of action’ . . . is the right to obtain 

redress for a harm suffered, regardless of the specific . . . the legal theory (common law or 

statutory) advanced.” Villacres, 189 Cal. App. 4th at 576 (emphasis added) (quoting Boeken v. 

Philip Morris USA, Inc., 48 Cal. 4th 788, 798 (2010)). Thus, “[e]ven where there are multiple 

legal theories upon which recovery might be predicated, one injury gives rise to only one claim 

for relief. . . . a judgment for the defendant is a bar to a subsequent action by the plaintiff based on 

the same injury to the same right, even though [a plaintiff] presents a different legal ground for 

relief.” Id. at 576-77 (emphasis added) (quoting Boeken, 48 Cal. 4th at 798). 

As a corollary, both California Supreme Court and Appellate Court have long held that, 

when someone “has litigated, or had an opportunity to litigate the same matter in a former 

action . . . [it] should not be permitted to litigate it again.” Panos v. Great Western Packing Co., 

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21 Cal.2d 636, 637 (1943); see also Sutphin v. Speik, 15 Cal.2d 195 (Cal. 1940) (“If [a] matter 

was within the scope of the action, related to the subject-matter and relevant to the issues, so that 

it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact 

expressly pleaded or otherwise urged.” (emphasis added)); Bookout v. MUFG Union Bank, 2016 

WL 5404387, at *2 (Cal. Ct. App. Sept. 28, 2016) (“Res judicata bars the litigation not only of 

issues that were actually litigated in a prior proceeding, but also issues that could have been 

litigated in that proceeding.” (citing Zevnik, 159 Cal. App. 4th at 82 (2008) (emphasis added)); 

Franceschi, 1 Cal. App. 5th at 259 (“[T]he doctrine of res judicata goes beyond the four corners 

of the operative pleading in the prior action: ‘If the matter was within the scope of the action, 

related to the subject-matter and relevant to the issues, so that it could have been raised, the 

judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise 

urged.’” (quoting Warga v. Cooper, 44 Cal. App. 4th 371 , 377-78 (1996) (emphasis added)); 

Villacres, 189 Cal. App. at 569 (App. 2d Dist. 2010) (“Res judicata bars not only issues that 

were raised in the prior suit but related issues that could have been raised.” (emphasis added)). 

As explained above, the PAGA claims in both lawsuits concern claims on behalf of the 

State for allegedly unpaid overtime, inaccurate wage statements, untimely payment of wages, and 

other wage-and-hour violations. They therefore plainly concern the same primary rights. See, 

e.g., Aguirre v. Genesis Logistics, 2015 WL 3755239, at *4 (C.D. Cal. June 16, 2015) (holding 

that prior judgment concerning inaccurate wage statements barred later suit for inaccurate wage 

statements, noting that “the inaccurate wage statement claims gives rise to only one cause of 

action” and that the right to receive “accurate wage statements” was “the only primary right 

violated” (emphasis added)); Villacres, 189 Cal. App. 4th at 584-85 (holding that prior lawsuit 

alleging unpaid overtime and split shift wages had res judicata effect on new PAGA lawsuit 

concerning for overtime, timely payment of wages, and inaccurate wage statements, because the 

“claims were within the scope of the [prior] litigation and were related to the subject matter and 

issues in that action: the payment of wages and penalties by the same employer.”); see also

Jones v. San Diego Metro. Transit Sys., 2016 WL 3952154, at *3 (S.D. Cal. July 22, 2016) 

(holding that res judicata barred new lawsuit asserting different theories of improperly unpaid 

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compensation, reasoning that “the primary right at stake [in both lawsuits] is Plaintiffs’ right to 

be compensated for time they spent working” (emphasis added)). Here, Harris’s claims 

indisputably “relate” to “the payment of wages and penalties by the same employer.” They 

likewise concern, for instance, the “right to be compensated for time they spent working.” 

Moreover, the above-cited makes clear that Harris cannot circumvent res judicata by 

conjuring up new or alternative theories for violations of these primary rights. In the first lawsuit, 

Strickland and the State clearly had, at the very minimum, “an opportunity to litigate” the claims 

at issue here. Panos, 21 Cal. 2d at 637 (emphasis added); see also Villacres, 189 Cal. App. 4th at 

576 (“[A] judgment for the defendant is a bar to a subsequent action by the plaintiff based on the 

same injury to the same right, even though [a plaintiff] presents a different legal ground for 

relief.” (quotations omitted)); Eichman, 147 Cal. App. 3d at 1174 (a party may not re-litigate the 

same primary right by pleading “different theories of recovery,” seeking “different forms of 

relief,” or pleading “new facts supporting recovery”). In fact, they did assert the claims of unpaid 

overtime, inaccurate wage statements, and untimely payment of wages. 

Put simply, it is beyond dispute that Strickland’s prior lawsuit involved litigation of—or at 

least an opportunity to litigate—the primary rights at issue here. They may not be re-litigated 

again, as the State Court’s judgment is final. 

3. Privity Exists Because Both Lawsuits Involved PAGA Claims Asserted 

on Behalf of Both the State and Plaintiffs 

Privity exists between the litigants of this and Strickland’s prior lawsuit. The California 

Supreme Court squarely resolved this issue in Arias v. Superior Court of San Joaquin County, 46 

Cal.4th 969 (2009). There, the Court confirmed that “[a]n employee plaintiff suing . . . under 

[PAGA], does so as the proxy or agent of the state’s labor law enforcement agencies.” Id. at 986 

(emphasis added). Indeed, “[i]n a lawsuit brought under [PAGA], the employee plaintiff 

represents the same legal right and interest as state labor law enforcement agencies—namely, 

recovery of civil penalties that otherwise would have been assessed and collected by the Labor 

Workforce Development Agency.” Id. (emphasis added; citations omitted).6 The Court held, 

6

 Notably, “[t]he employee plaintiff may bring the action only after giving written notice to . . . 

the Labor and Workforce Development Agency, and 75 percent of any civil penalties recovered 

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therefore, that “a judgment in an employee's action under [PAGA] binds not only that employee 

but also the state labor law enforcement agencies.” Id. (emphasis added); see also Trujillo v. 

Cnty. of Santa Clara, 775 F.2d 1359, 1367 (9th Cir. 1985) (“[W]hen statutory authority to sue has 

been given specifically to a public entity, a judgment in such a suit is res judicata as to all those 

‘for whose benefit it is prosecuted.’” (quoting Coachella Valley County Water District v. Stevens, 

206 Cal. 400, 410-11, 274 P. 538, 542 (1929); citing Rynsburger v. Dairymen's Fertilizer 

Cooperative, Inc., 266 Cal. App. 2d 269, 277 (1968)). Consequently, because the State Court 

granted summary judgment for Best Buy, res judicata bars the State (and its agents) from relitigating the same rights against Best Buy here. See Arias, 46 Cal.4th at 986. 

Additionally, Arias makes clear that res judicata independently bars Harris from asserting 

another PAGA claim in this suit, given that she was also in privity with the representative plaintiff 

in Strickland’s prior lawsuit. As the Court held: 

Because an aggrieved employee’s action under [PAGA] functions as a substitute 

for an action brought by the government itself, a judgment in that action binds 

all those, including nonparty aggrieved employees, who would be bound by a 

judgment in an action brought by the government. The act authorizes a 

representative action only for the purpose of seeking statutory penalties for Labor 

Code violations (Lab. Code, § 2699, subds. (a) , (g)), and an action to recover 

civil penalties “is fundamentally a law enforcement action designed to protect the 

public and not to benefit private parties” (People v. Pacific Land Research Co. 

(1977) 20 Cal.3d 10, 17 [141 Cal.Rptr. 20, 569 P.2d 125]). When a government 

agency is authorized to bring an action on behalf of an individual or in the public 

interest, and a private person lacks an independent legal right to bring the action, a 

person who is not a party but who is represented by the agency is bound by the 

judgment as though the person were a party. (Rest.2d Judgments, § 41, subd. 

(1)(d), com. d, p. 397.) Accordingly, with respect to the recovery of civil 

penalties, nonparty employees as well as the government are bound by the 

judgment in an action brought under [PAGA].” 

Id. (emphasis added); see also id. at 985 (“[T]he judgment in such an action is binding not only 

on the named employee plaintiff but also on government agencies and any aggrieved employee 

not a party to the proceeding.” (emphasis added)).7

must be distributed to the Labor and Workforce Development Agency.” Id. (citations omitted). 

7

 As the Court also noted, it would be unfair if “various plaintiffs in separate lawsuits against the 

same defendant [could] assert claims presenting common issues. . . . [without being] bound by 

prior determinations in the defendant's favor.” Id. at 985. After all “[o]ne plaintiff could sue and 

lose; another could sue and lose; and another and another until one finally prevailed,” meaning 

that a defendant “could face the terrors of an open-ended lawsuit that cannot be defeated, cannot 

be settled, and cannot be adjudicated.” Id. (quoting Fireside Bank v. Sup. Ct . 40 Cal.4th 1069, 

1078, 1080, 1033; Premier Elec. Constr. Co. v. N.E.C.A., Inc. 814 F.2d 358, 362 (7th Cir. 1987)). 

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In short, given the Supreme Court’s clear holdings in Arias, there can be no question that 

privity exists between the litigants of these suits. Both suits are brought by agents of the state. 

Moreover, Harris was an allegedly represented employee in the prior lawsuit, meaning she 

independently is also bound by the State Court’s judgment. Res judicata therefore bars the 

attempted re-litigation of these same primary rights in this lawsuit. 

C. Collateral Estoppel Bars Harris from Asserting an Overtime Claim. 

As referenced above, Harris has already sued Best Buy for unpaid overtime, and the court 

dismissed her claim with prejudice. More specifically, this Court found that she could not 

challenge the complained-of overtime compensation because it never applied to her. 2016 WL 

6248893, at *2. 

This Court should apply California law to determine the claim preclusive effect of the prior 

judgment in this action.8 Gustafson v. U.S. Bank N.A., 618 F. App'x 921, 922 (9th Cir. 2015). In 

California, collateral estoppel bars the re-litigation of factual or legal issues from prior proceedings 

whenever: 

(1) the issue [is] identical to that decided in the prior proceeding; (2) the issue [was] 

litigated in the prior proceeding; (3) the issue [was] necessarily decided in the prior 

proceeding; (4) the decision [was] final and on the merits; and (5) preclusion [is] sought 

against a person who was a party or in privity with a party to the prior proceeding. 

Alvarez v. May Dep’t Stores, 143 Cal. App. 4th 1223, 1233 (2006) (citation omitted). Bufil v. 

Dollar Financial Group, Inc., 162 Cal. App. 4th 1193, 1202 (2008) (“A prior judgment operates as 

a collateral estoppel on issues which were raised, notwithstanding that some factual matters or 

legal arguments which could have been presented in the prior case were not.” (citation omitted)). 

Each of these five elements is satisfied met here. As referenced above, the same parties 

litigated—and Best Buy ultimately obtained—summary judgment on Harris’s overtime claims 

because there is no overtime that she was owed and not paid. 2016 WL 6248893, at *2. Plaintiff 

does not dispute this. See SAC ¶ 10 (noting the court “found that Plaintiff Starvona Harris could 

8

 Even if this Court applied federal common law, the result is the same. McQuillion v. 

Schwarzenegger, 369 F.3d 1091, 1096 (9th Cir. 2004) (to apply collateral estoppel, “(1) the issue 

at stake must be identical to the one alleged in the prior litigation; (2) the issue must have been 

actually litigated [by the party against whom preclusion is asserted] in the prior litigation; and (3) 

the determination of the issue in the prior litigation must have been a critical and necessary part of 

the judgment in the earlier action”).

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not assert the unpaid overtime claim . . . because during the fiscal months she earned Monthly STI 

Bonuses, [she] did not work overtime hours in the same workweek she earned a Path to Excellence 

bonus”). Plaintiff Strickland’s overtime claim in this case is based on the same alleged overtime 

compensation practices. See, e.g., SAC, ¶ 17. And Plaintiff Harris improperly attempts again to 

pursue a representative action on this basis, pleading “[a]s alleged earlier, certain former and 

current non-exempt California employees were not paid overtime wages relating to the Month STI 

Bonus.” SAC, ¶ 59. Thus, because a court has already found for Best Buy on Harris’s overtime 

claim and dismissed her overtime claim with prejudice, she cannot now simply re-file the case in 

another suit in hopes of re-litigating the same claim. 

D. Harris Cannot Pursue PAGA Claims on Behalf of Others for An Alleged 

Overtime Violation She Never Experienced. 

Plaintiff Harris already lost her own overtime claim against Best Buy. And, as explained 

below, PAGA does not provide her with a backdoor license to sue Best Buy, on behalf of others, 

for harms she indisputably never experienced. 

1. PAGA’s Text and Legislative History Confirm that Plaintiffs Must 

Suffer the Harms they Seek to Litigate. 

PAGA specifies that “any provision of [the Labor Code] that provides for a civil penalty to 

be assessed and collected by the [LWDA] . . . may, as an alternative, be recovered through a civil 

action brought by an aggrieved employee on behalf of himself or herself and other current or 

former employees.” Labor Code § 2699(a) (emphasis added). Section 2699(c), in turn, defines an 

“aggrieved employee” as “any person . . . against whom one or more of the alleged violations was 

committed.” As discussed further below, the phrase “one or more” in § 2699(c) is properly read as 

an acknowledgment that PAGA penalties may be based on more than one type of Labor Code 

violation, and that more than one aggrieved employee may be joined as a co-plaintiff. As both this 

Court and California state courts have already noted, the language does not mean that a PAGA 

plaintiff experiencing only one alleged Labor Code violation can declare litigation open-season on 

employers for all other conceivable types of Labor Code violations. 

The text of PAGA makes clear that only an employee aggrieved by a Labor Code violation 

may bring a PAGA claim for such alleged Labor Code violation “on behalf of himself or herself 

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and other current and former employees.” Labor Code §2699(a) (emphasis added). The 

Legislature’s usage of the conjunctive “and” (instead of the disjunctive “or”) is instructive. 

Grammatically, this language requires that the aggrieved employee litigate violations of “any” 

individual Labor Code provision on behalf of herself and others—not on her behalf or others. And 

a plaintiff plainly cannot bring a PAGA claim “on behalf of herself” unless she actually 

experienced the alleged violation. Against this backdrop, the definitional use of “one or more” in 

§ 2699(c) cannot mean that a plaintiff could bring a PAGA claim challenging an alleged violation 

that happened only to others. See Kairy v. SuperShuttle Int'l, 660 F.3d 1146, 1154 (9th Cir. 2011) 

(“[T]he words of a statute must be read in context, considering the nature and purpose of the 

statutory enactment.”). 

PAGA’s legislative history clearly confirms that the Legislature intended to confer standing 

for plaintiffs to pursue only those Labor Code violations for which they were personally aggrieved. 

Indeed, the law’s sponsors specifically promised that PAGA plaintiffs would need to have 

individually suffered the harms alleged—unlike plaintiffs in UCL lawsuits at that time, which had 

caused a significant headache for the Legislature and the courts: 

The sponsors are mindful of the recent, well-publicized allegations of private 

plaintiff abuse of the [Unfair Competition Law], and have attempted to craft a 

private right of action that will not be subject to such abuse. First, unlike the UCL, 

this bill would not open private actions up to persons who suffered no harm from 

the alleged wrongful act. Instead, private suits for Labor Code violations could be 

brought only by an “aggrieved employee”—an employee of the alleged violator 

against whom the alleged violation was committed. 

See RJN, Ex. E at 4 (emphasis added). The Senate Judiciary Committee specifically noted this 

limitation to only violations the plaintiff/employee actually experienced in its analysis of the bill. 

See id. The Assembly Committee on Labor and Employment also made this same observation. 

RJN, Ex. F at 4. Additionally, the Senate Committee on Labor and Industrial Relations further 

stated that “unlike the [UCL], this bill entitles an individual to act in the capacity of [private 

attorney general] to seek remedy of a labor law violation solely because they have been aggrieved 

by that violation.” RJN, Ex. G at 2 (emphasis added). 

This legislative history reflects the unmistakable intent of the Legislature to confer PAGA 

standing on plaintiffs to challenge violations that they experienced. Allowing plaintiffs to sue for 

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harms they never experienced would be absurd and contravene the Legislature’s expressed intent. 

2. This Court, and Other Courts, Have Held that Plaintiffs Must 

Experience Each Harm they Allege under PAGA. 

This Court has already held that a representative PAGA plaintiff must have personally 

suffered the violations she seeks to litigate. Indeed, in Fobroy v. Video Only, Inc., 2014 WL 

6306708 (N.D. Cal. Nov. 14, 2014), Judge Chen held that the plaintiff could not pursue a PAGA 

claim for alleged unpaid minimum wages, unpaid overtime, and untimely payment of wages—as 

those claims had been adjudicated against plaintiff at summary judgment. Id. at *5. The plaintiff 

could, however, pursue a PAGA claim for other claims that had survived summary judgment. Id. 

Other courts have agreed. The court in Alvarez v. Autozone, Inc., No. 14-cv-02471 (C.D. 

Cal. Jul. 8, 2015) (RJN, Ex. H), for instance, stayed the plaintiff’s derivative PAGA claims 

pending arbitration of the plaintiff’s individual claims, reasoning that “it is likely that the 

disposition of the arbitration will assist in defining the scope of the PAGA claims moving 

forward.” Id. at 4. The court further explained that “[i]f some of Plaintiffs individual claims were 

dismissed during arbitration, a different representative would need to bring the dismissed claims 

under PAGA because Plaintiff could not assert to be an ‘aggrieved employee’ with respect to those 

claims as required by the statue.” Id. (also noting that “the result of the arbitration would establish 

the basis for which, if any, PAGA claims could move forward”). Likewise, in Wassink v. 

Affiliated Computers Services, Inc., 2011 WL 13077358 (C.D. Cal. Dec. 21, 2011), the court 

rejected plaintiff’s argument that he had standing under PAGA to represent other employees for 

allegedly unlawful deductions from wages, even though his wages were not unlawfully deducted. 

The court specifically held that the plaintiff “has no standing to bring a PAGA claim for violations 

of sections 221 and 222 because no illegal deductions were made from his wages, even if he has 

standing to bring a PAGA claim for other Labor Code violations.” Id. at *3 

The California State Superior Court reached the same conclusion in Lopes v. Kohl's 

Department Stores, Case No. RG08-380189 (Alameda Sup Ct. 2016) (Carvill, J.) (RJN Ex. I). As 

the court soundly reasoned: 

It is true that in [section 2699(c) of PAGA] an “aggrieved employee” is defined to 

mean “any person who was employed by the alleged violator and against whom one 

or more of the alleged violations was committed” (emphasis added), but that does 

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not require a construction that would allow a PAGA plaintiff, against whom only 

one LC violation was committed, to recover civil penalties for multiple violations of 

the LC committed against other employees, including violations not committed 

against him/her personally. The “one or more” formulation in the statute is there 

to make it clear that a named plaintiff must have suffered at least one of the alleged 

violations, while allowing for the possibility that there may be co-plaintiffs who 

have suffered different violations. Further, the definition of “aggrieved employee” 

is written so as to encompass not only the named plaintiff but similarly situated 

employees who may “count” for violation and distribution purposes. In other 

words, the definition of the term “aggrieved employee”' must be broad enough 

to encompass both the named plaintiff(s) and those similarly situated—not all 

of whom must have suffered all of the violations the named plaintiff suffered. 

Plaintiffs’ alternative construction of the statute would reduce the significance of 

the aggrieved employee requirement to the point where the violation as to which the 

named plaintiff is actually aggrieved might be only remotely related (if at all) to the 

principal disputes being adjudicated.

Id. at 6 (emphasis added).9

3. Adopting Harris’s Interpretation of PAGA’s Standing Requirement 

Would Have A Profoundly Adverse Impact On Absent Individual’s 

Rights And Would Lead to Absurd Results. 

Requiring representative plaintiffs to have suffered the harms they seek to challenge avoids 

serious unfairness and due process problems that would arise absent such a requirement. Again, in 

Arias, the California Supreme Court confirmed that an adjudicated PAGA claim has res judicata 

effect and “binds all . . . nonparty aggrieved employees” on whose behalf the suit was brought. 

Arias, 46 Cal. 4th at 986. Thus, as described above, res judicata comprehensively bars allegedly 

aggrieved employees from litigating those same primary rights in the future. See id. at 985-86. 

Arias’s holding (that res judicata bars nonparty employees in PAGA suits from later 

litigating the same primary rights) makes sense when the representative plaintiff and nonparties 

9 A handful of decisions have opined in dicta that a plaintiff need not suffer each harm he or she 

seeks to litigate under PAGA. See Holak v. Kmart Corp., 2015 WL 2384895, at *5-6 (E.D. Cal. 

May 19, 2015) (granting summary judgment as to PAGA claim because plaintiff did not suffer 

any of the Labor Code violations that were sufficiently identified in the LWDA letter); Stafford v. 

Dollar Tree Stores, Inc., 2014 WL 6633396, at *2 (E.D. Cal. Nov. 21, 2014) (bifurcating 

proceedings so that plaintiff’s individual entitlement to PAGA penalties could be adjudicated 

first); Molina v. Dollar Tree Stores, Inc., 2013 BL 386549, at *11-12 (C.D. Cal. Aug. 09, 2013) 

(denying motions for summary judgment and to terminate PAGA action because there remained 

triable issues of fact concerning employees’ exemption status); Rope v. Auto-Chlor System of 

Washington, Inc., 220 Cal. App. 4th 635, 650 (2013) (superseded by statute, Stats. 2015, c. 122 

(A.B. 987), §2) (affirming demurrer to a PAGA claim because none of plaintiff’s underlying 

Labor Code claims were viable); Jeske v. Maxim Healthcare Services, Inc., 2012 WL 78242, at 

*13 (E.D. Cal. Jan. 10, 2012) (dismissing PAGA claims because scope of allegedly aggrieved 

employees was “imprecisely defined”). But these opinions and dicta cannot trump the 

unambiguous legislative history and better-reasoned decisions discussed herein. 

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suffer the same Labor Code violations. After all, the parties share the requisite privity and 

“identity of interests” in litigating the alleged violations. But it would be patently unfair to 

nonparties for a PAGA plaintiff with no personal stake in litigating an alleged violation to litigate 

it for them. This unfair scenario underscores not only the purpose of res judicata’s “privity” 

principle, but also the foundational purpose of standing in general—that is, to ensure that plaintiffs 

have sufficient personal stake and incentive to effectively litigate a claim. See Susan B. Anthony 

List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (the injury-in-fact requirement for standing helps 

ensure that the plaintiff has a “personal stake in the outcome of the controversy”); see also 

Boorstein v. CBS Interactive, Inc. 222 Cal. App. 4th 456, 465 (2013) (“As a general principle, 

standing to invoke the judicial process requires an actual justiciable controversy as to which the 

complainant has a real interest in the ultimate adjudication because he or she has either suffered or 

is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts 

and issues will be adequately presented to the adjudicator.” (citations omitted)). By nevertheless 

inviting this Court to allow a “representative” to comprehensively litigate the legal rights of others 

with whom she lacks privity and identity of interests (given that she never experienced the harm 

alleged), Harris is asking this court to ignore these time-proven principles. 

When interpreting a statute, courts should interpret statutes to avoid absurd results and give 

effect to the intention of the Legislature. Kairy, 660 F.3d at 1154; see also Dyer v. United States, 

832 F.2d 1062, 1066 (9th Cir. 1987) (when interpreting a statute, the plain meaning governs unless 

such plain meaning would lead to absurd results). Here, the Court should reject Plaintiff’s 

interpretation of PAGA, which would only increase the deluge of PAGA cases already flooding 

the courts, and which contradicts the Legislature’s intent (as discussed above). Moreover, this 

Court should reject Plaintiff’s invitation to strip nonparties of their due process interest in having 

their rights litigated by the proper parties. See St. Martin Evangelical Lutheran Church v. South 

Dakota, 451 U.S. 772, 780 (1981) (“A statute, of course, is to be construed, if such a construction 

is fairly possible, to avoid raising doubts of its constitutionality.”). 

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E. Harris’s PAGA Claim Should Be Limited to Only Those “Facts and 

Theories” that She Administratively Exhausted—which Excludes, For 

Instance, Claims Concerning “Points” or “Previous Period Hrs” 

A plaintiff may file a civil PAGA action only after he or she gives “written notice by 

certified mail to the [LWDA] and the employer of the specific provisions of [the Labor Code] 

alleged to have been violated, including the facts and theories to support the alleged violation.” 

Cal. Lab. Code § 2699.3(a)(1) (emphasis added); Caliber Bodyworks, Inc. v. Superior Court, 134 

Cal. App. 4th 365, 376 (2005) (“Section 2699.3, subdivision (a), provides the administrative 

procedures that must be followed before an aggrieved employee may file a civil action to recover 

civil penalties under section 2699 . . . .”). Hence, Harris’s claims in this lawsuit must be limited 

only to those “facts and theories” that she administratively exhausted before filing suit—which 

excludes, for instance, her newfound overtime theory relating to “points,” as well as her wage 

statement theory concerning “Previous Period Hrs.” 

With respect to the alleged inaccurate wage statement claim, Harris simply recited the 

various wage statement requirements under the Labor Code, and then summarily asserted that Best 

Buy violated them. Her assertions consist almost entirely of legal conclusions. The scant 

“factual” allegations allude only to “bonuses” and “overtime.” Hence, neither an employer nor the 

LWDA could plausibly discern from Harris’s letter that she was, in reality, challenging “Previous 

Period Hrs” entries in wage statements. In fact, there is not a single reference to these “Previous 

Period Hrs” payments anywhere in her letter. 

Harris’s letter also fails to provide notice of her new overtime claim concerning “points” 

awarded under Best Buy’s Path to Excellence Program. Again, her newfound theory is that Best 

Buy underpaid overtime because it did not include the Monthly STI bonus in its calculation of the 

Path to Excellence bonuses. SAC ¶ 17 (also complaining that Best Buy failed to include these 

“points” earnings under the Path to Excellence Program “when calculating the [Monthly STI 

Bonus]”). Like the new “Previous Period Hrs” allegations, however, there is not a single reference 

to “points” or the “Path to Excellence” program anywhere in Harris’s letter. Nor does the letter 

provide any reasonable basis for either Best Buy or the LWDA to glean that these undisclosed 

theories were, in fact, what Harris was really challenging. Notably, this dearth of allegations 

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concerning “points” and the “Path to Excellence” program is exactly why this Court altogether 

denied discovery concerning the “points” and “Path to Excellence” program in the first lawsuit. 

California district courts have dismissed similarly deficient letters for failures to specify 

“the facts and theories” on which claims were based. In Stoddart v. Express Services, Inc., 2015 

WL 5522142 (E.D. Cal. Sept. 16, 2015), for instance, the plaintiff’s PAGA letter specified that 

wage statements were inaccurate because they, among other things: (1) failed to show “the total 

hours worked by the employee and gross wages earned because [the defendants] fail to record all 

hours worked by [plaintiff] and other similarly aggrieved employees,” (2) were inaccurate due to 

failures to provide “legally compliant meal periods” when the plaintiff was required “to remain on 

the premises due to fear of theft,” and (3) reflected improper overtime compensation “for overtime 

hours worked.” Id. at *6-8. Plaintiff then filed suit asserting wage statement claims for alleged 

failures to list inclusive dates of pay periods, failures to provide second meal periods for longerthan-ten-hour shifts, and failures to improperly calculate overtime on bonuses. The court, 

however, rejected these new theories concerning the wage statements and limited plaintiff to only 

the specific theories identified in the letter. In so holding, the court held that “PAGA claims are 

limited to the specific theories identified in a prior LWDA notice letter. Setting forth a violation 

based on one theory does not satisfy the notice requirement as to a violation of even the same code 

section under a different theory.” Id. at *6 (citations omitted)). Similarly, in Bradescu v. Hillstone 

Rest. Grp., Inc., 2014 WL 5312546 (C.D. Cal. Sept. 18, 2014), order confirmed, 2014 WL 

5312574 (C.D. Cal. Oct. 10, 2014), the plaintiff’s PAGA letter identified a “free meals-based 

overtime theory,” but failed to specify her later-raised overtime theories concerning “large party 

gratuities” and “training bonuses.” Id. at *11. The court limited the PAGA claims to the theories 

specified in the letter and therefore barred her from litigating her new overtime theories. See id. 

These are two of many court decisions that have properly limited plaintiffs’ PAGA claims 

to the facts and theories they administratively exhausted. See also Alcantar v. Hobart Serv., 800 

F.3d 1047, 1057 (9th Cir. 2015) (confirming that mere “legal conclusions” do not satisfy PAGA’s 

administrative exhaustion requirement); Holak v. K Mart Corp., 2015 WL 4756000, at *3 (E.D. 

Cal. Aug. 11, 2015) (confirming that “a plaintiff is limited to the theories stated in the notice 

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letter” and noting there is no “substantial difference of opinion” among courts on the issue); 

Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 WL 5680310, at *4 (C.D. Cal. Sept. 25, 2015) 

(“The exceedingly detailed level of specificity for [PAGA letters] is not satisfied here.”); Amey v. 

Cinemark USA Inc, No. 13-CV-05669-WHO, 2015 WL 2251504, at *13 (N.D. Cal. May 13, 

2015) (“[p]arroting the statute that was violated is insufficient to provide notice under [PAGA]”); 

Soto v. Castlerock Farming & Transp. Inc., 2012 WL 1292519, at *8 (E.D. Cal. Apr. 16, 2012) 

(dismissing PAGA claim for failure to exhaust administrative remedies, and noting its view that 

the “Ninth Circuit requires an exceedingly detailed level of specificity” in PAGA letters); 

Plaisted v. Dress Barn, Inc., 2013 WL 300913, at *6 (C.D. Cal. Jan. 25, 2013) (“Contrary to 

[plaintiff’s] contention, general notice is not the criterion by which PAGA claim [letters] are 

assessed.”); Studley v. All. Healthcare Servs., Inc., 2012 WL 12286522, at *6 (C.D. Cal. July 26, 

2012) (barring new “theory of liability,” even though same code section was cited in PAGA 

letter). Thus, Harris cannot pursue PAGA theories based on: (1) overtime relating to the Path to 

Excellence “points” or other unidentified compensation, and (2) wage statement claims related to 

Previous Period Hrs payments. 

F. Harris Fails to Adequately Plead Her PAGA Claim. 

Harris’s Seventh Cause of Action should likewise be dismissed as insufficiently pleaded. 

A plaintiff’s representative claims based only on bald allegations that fail to describe sufficient 

facts or circumstances to support such allegations must be dismissed. Iqbal, 556 U.S. at 681; 

Twombly, 550 U.S. at 555. In one paragraph, Harris summarily recites numerous bases for her 

PAGA claim, including that Best Buy 

“willfully failed to maintain accurate records of hours worked for its non-exempt 

California employees ... willfully failed to timely provide accrued wages during 

employment and also upon termination ... failed to provide wage statements that 

comply with Labor Code § 226 to California employees ... failed to reimburse 

employees for business related expenses and failed to provide agreed upon wages 

and/or overtime pay to certain non-exempt employees of DEFENDANT who 

worked in California as required under the Labor Code and Wage Orders, among 

other things. As alleged earlier, certain former and current non-exempt California 

employees were not paid overtime wages relating to the Monthly STI bonuses. 

SAC, ¶ 59. 

As discussed above, Harris is barred by res judicata, collateral estoppel, and standing from 

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reasserting PAGA claims based on alleged unpaid overtime “relating to the Monthly STI 

bonuses.” And there is a dearth of actual facts—as opposed to legal conclusions—to support her 

remaining allegations. Simply parroting requirements of Labor Code and summarily stating, for 

instance, that wage statements fail to “comply with Labor Code § 226,” that Best Buy somehow 

“failed to reimburse employees for business related expenses,” “failed to timely provide accrued 

wages during employment,” “failed to maintain accurate records of hours worked,” and “failed to 

provide agreed upon wages” are clearly conclusory and inadequate. As a result, Best Buy can 

only speculate as to the breadth and substance of the PAGA claims Harris seeks to assert in this 

action. Additionally, it is unclear which groups of Best Buy’s employees Harris even claims were 

allegedly affected, as she vaguely refers to “non-exempt California employees,” “California 

employees,” or “certain non-exempt employees” and makes no reference to the defined putative 

classes she describes in the Second Amended Complaint. See SAC, at ¶ 13. For all these 

reasons, Harris’s PAGA claim should be dismissed in its entirety as insufficiently pleaded. 

IV. CONCLUSION 

For the foregoing reasons, this Court should grant Best Buy’s Motion. Every element of 

Plaintiff Harris’s PAGA claim is insufficiently pleaded and/or otherwise barred. 

Dated: July 27, 2017 MORGAN, LEWIS & BOCKIUS LLP 

By s/ Barbara J. Miller 

Barbara J. Miller 

Bryan L. Jarrett 

Sarah J. Allen 

Attorneys for Defendant 

Best Buy Stores, L.P.

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