# Silken Brown v. Cinemark USA, Inc.

> Court of Appeals for the Ninth Circuit · December 7, 2017 · 705 F. App'x 644

URL: https://www.frixlaw.com/law-library/cases/4226814

## Case

- **Full name:** Silken BROWN and Mario De La Rosa, Individually and on Behalf of Other Members of the General Public Similarly Situated and as Aggrieved Employers Pursuant to the Private Attorneys General Act (“PAGA”), Plaintiffs-Appellants, v. CINEMARK USA, INC. and Century Theatres, Inc., Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** December 7, 2017
- **Citations:** 705 F. App'x 644
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Thomas, Reinhardt, O'Malley
- **Nature of suit:** Civil
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FILED
NOT FOR PUBLICATION
DEC 7 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILKEN BROWN and MARIO DE LA No. 16-15377
ROSA, individually and on behalf of other
members of the general public similarly D.C. No. 3:13-cv-05669-WHO
situated and as aggrieved employers
pursuant to the Private Attorneys General
Act (“PAGA”), MEMORANDUM*

Plaintiffs-Appellants,

v.

CINEMARK USA, INC. and CENTURY
THEATRES, INC.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding

Argued and Submitted October 12, 2017
San Francisco, California

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: THOMAS, REINHARDT, and O’MALLEY,** Circuit Judges.

Plaintiffs Brown and De La Rosa appeal the district court’s dismissal of

Brown’s individual Private Attorney General Act (“PAGA”) claim, denial of class

certification, and denial of leave to amend the complaint. We have jurisdiction

pursuant to 28 U.S.C. § 1291. Because the parties are familiar with the factual and

procedural history of the case, we need not recount it here. We reverse and

remand.

We review the district court’s determination of a failure to exhaust

administrative remedies de novo. Bak v. Postal Serv., (U.S.), 52 F.3d 241, 243 (9th

Cir. 1995). We review the district court’s denial of class certification of Plaintiffs’

direct wage statement claims de novo because the judgment was based on the

pleadings rather than a Rule 23 analysis. Yokoyama v. Midland Nat. Life Ins. Co.,

594 F.3d 1087, 1091–92 (9th Cir. 2010).

Given the import of Williams v. Superior Court, 3 Cal. 5th 531 (2017), a

case decided after the district court issued its order, the district court erred in

dismissing Brown’s individual PAGA claim for failure to exhaust administrative

remedies. Brown’s PAGA letter pleaded facts and theories sufficient to put

**
The Honorable Kathleen M. O’Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
2
Defendants and the California Labor and Workforce Development Agency on

notice for potential investigation, which satisfies the policy goal of California

Labor Code § 2699.3(a). “California public policy favors the effective vindication

of consumer protections. . . . Hurdles that impede the effective prosecution of

representative PAGA actions undermine the Legislature's objectives.” Williams, 3

Cal. 5th at 548. As the California Supreme Court further noted in Williams,

“Nothing in Labor Code section 2699.3, subdivision (a)(1)(A), indicates the ‘facts

and theories’ provided in support of ‘alleged’ violations must satisfy a particular

threshold of weightiness, beyond the requirements of nonfrivolousness generally

applicable to any civil filing.” Id. at 545.

The district court also erred in denying class certification on the basis of the

pleadings. Because the pleadings put Defendants on sufficient notice of California

Labor Code § 226(a) violations, whether direct or derivative, Plaintiffs’ pleadings

merit a Rule 23 analysis for their direct wage claims. Therefore, we must vacate

the order and remand for the district court to conduct a Rule 23 analysis.

We need not, and do not, decide any other issue presented by this case,

including the impact, if any, of Campion v. Old Republic Protection Co., 775 F.3d

1144 (9th Cir. 2014).

REVERSED and REMANDED.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4226814. Public record. Not legal advice.