The opinion
Filed 11/19/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAUREN BROWN, B339729
Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 19STCV21353
DAVE & BUSTER’S OF
CALIFORNIA, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Setareh Law Group, Shaun Setareh, Thomas Segal and
Farrah Grant for Plaintiff and Appellant.
Littler Mendelson, Alaya B. Meyers and Gayle Lynne
Gonda for Defendants and Respondents.
____________________
Lauren Brown is one of several plaintiffs who sued the
same employer under the Private Attorneys General Act (Labor
Code § 2699 et seq.) (PAGA) between June 2018 and June 2019.
The employer settled with one of the PAGA plaintiffs who
had filed suit earlier than Brown did. Then the employer filed a
motion for judgment on the pleadings about Brown’s case,
arguing that res judicata barred Brown’s PAGA claim and that
Brown lacked standing to bring a PAGA claim for violations
occurring after the date of the other settlement. The trial court
granted the motion and Brown appealed.
We affirm. Although the parties’ briefing uses the term
“res judicata,” following our Supreme Court’s lead, we refer to
“claim preclusion.” (See DKN Holdings LLC v. Faerber (2015) 61
Cal.4th 813, 823–824 (DKN).) Undesignated citations are to the
Labor Code.
I
Dave & Buster’s of California, Inc. and Dave & Buster’s,
Inc. operate restaurants. We refer to both as Buster’s.
Brown worked at Buster’s Westchester location from
November 2016 to April 2018.
In June 2019, Brown filed a standalone representative
PAGA action against Buster’s, alleging it failed to provide meal
periods, rest periods, vacation pay, and wages statements and
that Buster’s routinely required its employees to work off-the-
clock. Brown sought civil penalties for alleged violations of
various provisions of the Labor Code.
Two months later, Buster’s filed a demurrer to abate/stay,
or in the alternative, a motion for discretionary stay, on the
ground that Brown’s action was between the same parties on the
same cause of action as at least two previously-filed actions:
Espinoza v. Dave & Buster’s Management Corporation, Inc., Los
Angeles County Superior Court Case No. BC710345 (Espinoza)
and Lopez v. Dave & Buster’s of California, Inc., et al., San Diego
County Superior Court Case No. 37-2018-00054080-CU-OE-CTL
(Lopez).
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Finding Brown’s case to be “substantially identical” to the
Espinoza action, the trial court sustained Buster’s demurrer and
stayed the case in October 2019 to promote judicial efficiency and
to avoid the potential for conflicting rulings.
In February 2020, Buster’s filed a status conference
statement providing information about the status of earlier-filed
PAGA actions. The statement showed when each case was filed,
when the other plaintiffs submitted their requisite notices to the
Labor and Workforce Development Agency (Agency), and which
claims overlapped with Brown’s case. According to Buster’s,
Brown’s was the fifth PAGA action pending against it. In
addition to the Espinoza and Lopez actions, there was also Rocha
v. Dave & Buster’s Management Corporation, Inc., Santa Clara
County Superior Court Case No. 19CV348961 and Andrade v.
Dave & Buster’s Management Corporation, Inc., San Diego
County Superior Court Case No. 37-2019-00019561-CU-OE-CTL
(Andrade).
In June 2021, the parties stated Buster’s was “working on a
global settlement” through plaintiff’s counsel in the Andrade
action, which would include Brown’s action as well.
At a status conference in April 2023, the parties noted the
Andrade action had settled. Brown said she was “evaluating
what claims, if any, remain.” Brown later stated there might not
be a complete overlap with Andrade as to her unpaid vacation
claim, but she was still checking on this issue.
In June 2023, Buster’s moved for judgment on the
pleadings, arguing that the Andrade settlement released all of
Brown’s claims against it and that claim preclusion entirely
barred Brown’s lawsuit. Buster’s motion also asserted Brown
lacks standing to bring representative claims for any PAGA
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violations occurring on or after the date of the Andrade
settlement approval.
Along with this motion, Buster’s filed a request for judicial
notice including various documents from the Andrade action.
These documents revealed Andrade sent her first pre-filing notice
to the Agency on May 13, 2019, and filed a complaint in the San
Diego Superior Court on November 14, 2019. This complaint
named only Dave & Buster’s Management Corporation, and did
not specifically list a vacation pay violation under section 227.3.
Andrade then sent an amended notice letter to the Agency on
February 3, 2022, and filed her corresponding amended
complaint on March 10, 2022. It was not until Andrade’s second
notice to the Agency that she added a section 227.3 vacation pay
claim and the named defendants in Brown’s case.
On April 1, 2022, Andrade, on behalf of herself and on
behalf of the state and all allegedly aggrieved employees, entered
into a long-form settlement agreement with all three Buster’s
entities, including the two Brown sued. The released claims
included “failure to pay accrued vacation pay at the end of
employment, including but not limited to claims under California
Labor Code” and listed section 227.3. In May 2022, Andrade
moved for approval of her settlement, showing that she had
notified the Agency of her motion and settlement agreement, and
that the Agency accepted the settlement and would not oppose
her motion. The San Diego Superior Court granted approval of
the Andrade settlement on November 4, 2022.
Brown began her opposition by asserting she has standing
to bring all claims in her PAGA letter because Buster’s violated
her rights under the Labor Code. Then, citing LaCour v.
Marshalls of California (2023) 94 Cal.App.5th 1172, 1194
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(LaCour), Brown contended that, because Andrade failed to
exhaust her claims before the Agency, she was therefore not
deputized to pursue and settle the Labor Code violations she
alleged in her amended complaint. Andrade waited only 35 days
between sending her amended pre-filing notice and filing her
amended complaint in court. Brown thus maintained the
Andrade settlement does not apply to the Buster’s entities that
she sued and to her section 227.3 vacation pay claim.
The trial court granted Buster’s motion without written
comment, dismissed Brown’s complaint with prejudice, and
entered judgment in Buster’s favor.
This appeal followed.
II
We independently review the trial court’s order granting
Buster’s motion for judgment on the pleadings. (Gerawan
Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.)
Brown, as the appellant, bears the burden of showing trial
court error. (See Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) Brown’s opening brief identifies no error. Instead, Brown
repeats the same arguments she made before about standing and
Andrade’s failure to exhaust her claims at the Agency before
filing her operative amended complaint. By failing to address
other issues in her opening brief, Brown effectively concedes the
Andrade settlement did in fact result in a final judgment on the
merits and does bar her non-vacation pay claims. (See Benach v.
County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [we treat
a point as forfeited when an appellant fails to raise it])
We reject Brown’s unsupported argument that she has
standing to pursue Labor Code violations occurring after
November 4, 2022, which was the date the court approved the
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Andrade settlement. (See Robinson v. Southern Counties Oil Co.
(2020) 53 Cal.App.5th 476, 484 [finding a PAGA plaintiff lacked
standing to pursue violations he alleged to have occurred after he
ended his employment with the defendant].) It is undisputed
that Brown’s employment with Buster’s ended in 2018.
Therefore only one issue is before us: did Andrade’s failure
to adhere strictly to the 65-day waiting period for her amended
claims defeat Buster’s claim preclusion argument? Subdivision
(a)(2)(A) of section 2699.3 provides that, if the Agency does not
respond within 65 calendar days of an aggrieved employee
providing it with written notice, “the aggrieved employee may
commence a civil action pursuant to Section 2699.” Andrade did
indeed file her operative amended complaint fewer than 65 days
after her amended notice to the Agency.
Claim preclusion bars a new lawsuit if the first case had (1)
the same cause of action; (2) between the same parties, or parties
in privity; and (3) a final judgment on the merits. (DKN, supra,
61 Cal.4th at pp. 824-825.) This doctrine promotes judicial
economy by requiring all claims based on the same cause of
action that were or could have been raised to be decided in a
single suit. (5th & LA v. Western Waterproofing Co., Inc. (2023)
87 Cal.App.5th 781, 788 (5th & LA).)
Brown relies on the LaCour decision to vault her over the
bar of the Andrade settlement. Like Brown’s case, LaCour was
about a plaintiff who filed a standalone PAGA claim against a
former employer. The employer invoked claim preclusion based
on an earlier PAGA settlement. (See LaCour, supra, 94
Cal.App.5th at pp. 1181–1182.) Both Brown and LaCour
challenged the earlier judgment’s satisfaction of the first and
second elements of claim preclusion. (See id. at p. 1182.) And
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like the trial judge in Brown’s case, in LaCour, the trial court
granted the employer’s motion for judgment on the pleadings.
(See id. at pp. 1183, 1189.)
The appellate court in LaCour found the trial court erred in
granting the employer’s motion and giving claim preclusive effect
to the earlier settlement. (LaCour, supra, 94 Cal.App.5th at p.
1189.) Because the earlier plaintiff Paulino’s presuit notice
“identified nothing more than failure to compensate employees
for off-the-clock work at the end of the shifts,” the appellate court
in LaCour found Paulino was not authorized to settle “the raft of
additional wage-and-hour violations LaCour [sought] to pursue
. . . ” (Id. at pp. 1192–1193.) The court held “the prior judgment
does not extinguish unlisted PAGA claims in litigation brought
by other authorized PAGA plaintiffs because such claims do not
arise from violations of the same primary rights Paulino was
authorized to pursue.” (Id. at p. 1195.)
Paulino’s lack of authorization to pursue claims beyond
those she identified in her presuit notice also led the LaCour
appellate court to conclude there was no privity between Paulino
and LaCour. (See LaCour, supra, 94 Cal.App.5th at p. 1196–
1197.) Paulino and LaCour did not share an “identity or
community of interest” such that LaCour had reasonable notice
he could be bound as a nonparty privy and that Paulino
adequately represented his interests. (Id. at p. 1197.)
Brown urges us to find that, under LaCour, Andrade’s
settlement does not bar her vacation pay claim or reach the
Buster’s defendants in this case because Andrade filed her second
amended complaint only 35 days after submitting her amended
presuit notice to the Agency. Brown interprets LaCour to mean
Andrade, like Paulino, was never authorized to pursue the
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additional vacation pay claim and new defendants in her
amended complaint.
In response, Buster’s maintains LaCour “is completely
inapposite” and factually distinguishable, as Andrade’s initial
notice letter, initial complaint, amended notice letter, and
amended complaint “expressly include all of Brown’s alleged
Labor Code violations such that they encompass Brown’s entire
PAGA claim.” Buster’s also argues Andrade’s failure to abide by
the 65-day waiting period for her amended complaint is a
technicality that is “not dispositive as to the issue of
administrative exhaustion under PAGA.”
To support its argument, Buster’s cites several federal
district court cases in which the courts declined to require strict
adherence to the 65-day waiting period. In two cases, the courts
found there was “little reason” to punish plaintiffs for acting too
quickly once the plaintiffs took the requisite step of notifying the
Agency under section 2699.3(a)(1) and the notice period then
elapsing with no sign of action from the Agency. (See Magadia v.
Wal-Mart Assocs, Inc. (N.D.Cal. 2018) 319 F.Supp.3d 1180, 1189;
Bradescu v. Hillstone Rest. Grp., Inc. (C.D.Cal. Sept. 18, 2014)
No. SACV 13-1289-GW(RZx), 2014 WL 5312456, at *10.) In
another, the court reasoned a plaintiff’s failure to comply fully
with the statutory notice requirement did not thwart the purpose
of the pre-filing notice requirement in the statute—giving the
Agency the opportunity to investigate the alleged violations. (See
Garnett v. ADT, LLC (E.D.Cal. 2015) 139 F.Supp.3d 1121, 1128.)
As Brown observes in her reply, we are not bound to follow
these cases. Brown instead directs us to footnote 18 of Caliber
Bodyworks Inc. v. Superior Court (2005) 134 Cal.App.4th 365,
383 (Caliber). In Caliber, the appellate court found the trial
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court should have sustained the defendant’s demurrer due to the
plaintiffs’ failure to plead compliance with PAGA’s pre-filing
notice requirements. (Id. at p. 383.) Footnote 18 explained that,
because the plaintiffs did not specify how they would amend their
allegations, granting leave to amend would be futile. (Id. at p.
383, fn. 18.) However, if the plaintiffs followed the pre-filing
notice requirements, and if the Agency chose not to investigate or
cite the defendant based on the alleged violations within 60 days,
the plaintiffs could then request leave to amend their complaint.
(Ibid.) But Caliber does not help Brown prove Andrade “did not
have a valid PAGA claim for those claims newly asserted in the
amended PAGA letter.” Unlike the plaintiff in Caliber, Andrade
did plead compliance with the pre-filing notice requirements in
her amended complaint.
On this administrative exhaustion issue, LaCour does not
apply. Our Supreme Court has described PAGA’s statutory pre-
filing notice requirement as “a condition of suit.” (Williams v.
Superior Court (2017) 3 Cal.5th 531, 545.) The purpose of this
requirement is to afford the Agency “the opportunity to decide
whether to allocate scarce resources to an investigation, a
decision better made with knowledge of the allegations an
aggrieved employee is making and any basis for those
allegations.” (Id. at pp. 545–546.) Nothing in the statute’s
language or any published case law suggests the 65-day waiting
period also applies to amended notices and complaints.
Moreover, the federal cases Buster’s cites are consistent
with the longstanding doctrine of substantial compliance, which
arose in the context of the Tort Claims Act, Govt. Code, § 810 et
seq. (See, e.g., Hall v. City of Los Angeles (1941) 19 Cal.2d 198,
202 [“a defect in the form of compliance is not fatal so long as
9
there is substantial compliance with the essentials of the
requirement”]). Under this doctrine, a court may excuse small
deficiencies in a plaintiff’s pre-filing notice if the notice
nonetheless “substantially complies with all of the statutory
requirements for [a] valid claim.” (See Santee v. Santa Clara
County Office of Education (1990) 220 Cal.App.3d 702, 713 (citing
City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455–
457).) Like PAGA, the Tort Claims Act also has a pre-filing
notice requirement, the purpose of which is to notify the relevant
government agency of alleged legal violations before a plaintiff
files a civil action. (See ibid.)
Andrade provided notice to the Agency of her vacation pay
claim and allegations as to the additional Buster’s entities. The
statute itself and case law are silent as to whether the pre-filing
notice requirements apply to Andrade’s amended notice.
Regardless, Andrade substantially fulfilled the purpose of the
PAGA pre-filing notice requirement in her amended notice.
Andrade’s failure to wait 65 days was a harmless defect.
The Agency accepted Andrade’s global settlement with Buster’s
after it had an opportunity to object.
As Buster’s notes, to find otherwise would invalidate the
San Diego Superior Court’s approval of the settlement as to the
three Buster’s entities and all of Andrade’s claims. The Supreme
Court has firmly rejected the efforts of PAGA plaintiffs “to file
objections to the settlement reached by another aggrieved
employee representing the same state interest and also acting on
the state’s behalf.” (See Turrieta v. Lyft, Inc. (2024) 16 Cal.5th
664, 715.) It reasoned that opening the door to these objections
was contrary to PAGA’s text, statutory scheme, and legislative
history. (See ibid.) Andrade’s settlement fully encompassed and
10
released Brown’s claims as to all Buster’s entities, thus satisfying
all elements of claim preclusion. (See DKN, supra, 61 Cal.4th at
pp. 824–825.) The trial court was right to grant Buster’s motion.
DISPOSITION
We affirm and award costs to the respondents.
WILEY, J.
We concur:
STRATTON, P. J.
VIRAMONTES, J.
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