Ortiz v. Sun Valley Raisins, Inc.

Code, § 2699.3, 3

subd. (a)(2)(C).) In addition, a plaintiff has a right to amend his or her complaint once without leave of court at any time before an answer, demurrer, or motion to strike is filed. (Code Civ. Proc., § 472, subd. (a).) Here, plaintiff filed his first amended complaint on December 1, 2025 without seeking or obtaining leave of court. However, plaintiff was not required to obtain leave of court before filing his first amended complaint, as no answer, demurrer, or motion to strike had been filed at the time of the amendment. (Code Civ.

Proc., § 472, subd. (a).) Therefore, defendant has not shown that the first amended complaint was improperly filed because plaintiff did not first obtain leave of court for the amendment. To the extent that defendant argues that the amended complaint was improperly filed because it was not accompanied by a declaration showing that the amendment was necessary and proper, defendant’s argument is incorrect. Defendant cites to Rule of Court 3.1324(b), which does require the filing of a declaration to support a request to amend a complaint.

However, Rule of Court 3.1324 only applies where plaintiff brings a motion for leave to amend the complaint. (Cal. Rules of Court, rule 3.1324(a).) Here, plaintiff did not have to obtain leave of court to amend his complaint, so he did not need to file a declaration showing why the amendment is necessary and proper. Next, to the extent that defendant argues that the PAGA claim is improper because plaintiff did not give notice to the employer and the LWDA and failed to wait at least 65 days after giving notice before filing the complaint, again defendant’s argument is incorrect.

The documents in the court’s record show that plaintiff filed his original complaint on September 10, 2025, and that the original complaint did not include a PAGA claim. (The court will take judicial notice of the original complaint and the causes of action alleged therein.) Plaintiff gave notice to the LWDA on September 10, 2025 via its website, and sent notice to the defendant by certified mail on September 19, 2025. (Brown decl., ¶¶ 2, 3, and Exhibits A and B thereto.) Plaintiff waited more than 65 days after giving notice to the LWDA and defendant, and then filed his first amended complaint on December 1, 2025.

The FAC included a PAGA claim for the first time. (The court will take judicial notice of the first amended complaint and the claims alleged therein.) The tenth cause of action alleges a PAGA claim, as well as alleging that plaintiff gave notice to the LWDA and the employer at least 65 days before filing the amended complaint. (FAC, ¶¶ 66-67.) Thus, plaintiff has adequately alleged compliance with the notice requirements of section 2699.3, as well as alleging that he waited at least 65 days before filing his PAGA claim.

Consequently, defendant’s motion to strike is without merit and the court intends to deny it. While defendant contends that the PAGA claim is improper because plaintiff gave notice of his PAGA claim at the same time that he filed the original complaint, defendant’s argument misses the point. The original complaint did not include a PAGA claim, so the fact that plaintiff served notice on the LWDA and defendant at the same time that the original complaint was filed does not render the PAGA claim in the subsequently filed FAC defective.

In fact, section 2699.3 expressly contemplates that a plaintiff will file an original complaint without a PAGA claim, and then give notice to the LWDA and the employer before filing an amended complaint adding a PAGA claim “as a matter of right.” (Labor Code § 2699.3, subd. (a)(2)(C).) Thus, once plaintiff complied

with the notice requirement and waited 65 days, he was allowed to file his first amended complaint as a matter of right. Consequently, defendant’s argument is without merit. Defendant also argues that the FAC is defective because it does not include a copy of the PAGA notice or summarize what the notice said. However, there is nothing in section 2699.3 that requires the plaintiff to attach a copy of the PAGA notice to the amended complaint, or to allege the contents of the notice in the amended complaint.

Section 2699.3 only requires plaintiff to give notice to the LWDA and the employer at least 65 days before filing his amended complaint with the PAGA claim. It does not require plaintiff to also include the notice or its contents in the amended complaint.1 Therefore, defendant has not shown that the tenth cause of action is defectively pled simply because plaintiff did not attach a copy of the notice to the FAC. In its reply brief, defendant argues that it never received a copy of the notice and therefore the PAGA claim is defective for failure to give notice before filing the claim.

However, defendant did not make this argument in its original motion, so it cannot raise it for the first time on reply. In addition, the argument improperly relies on extrinsic evidence, including declarations stating that defendant did not receive the notice. A defendant cannot rely on extrinsic evidence when moving to strike portions of a complaint, and must instead rely on only the allegations on the face of the pleading as well as judicially noticeable matters. (Code Civ. Proc., § 437.) Therefore, defendant’s reliance on extrinsic evidence is improper.

In any event, plaintiff’s counsel has submitted copies of the return receipt showing that defendant was served with the notice on September 22, 2025 (Exhibit B to Brown decl.), so even if the court was inclined to consider extrinsic evidence, defendant has not shown that it did not receive notice of the PAGA claim. Next, to the extent that defendant argues that plaintiff is improperly asserting Labor Code violations that may only be brought by the Labor Commissioner and that there is no private right of action under the various statutes cited in the FAC, defendant’s motion is procedurally and substantively without merit.

First, defendant’s notice of motion is defective, since it does not list the specific portions of the first amended complaint that defendant seeks to strike. Under the Rules of Court, rule 3.1322(a), “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” Here, the notice of motion does not quote the specific parts of the first amended complaint that defendant seeks to strike, nor does the notice of motion list the portions of the FAC that it seeks to challenge.

Therefore, the notice of motion is defective, as it does not properly give notice of what defendant seeks to strike, and the court may deny it on that ground alone. Second, even if the court were to consider the merits of the motion, defendant has failed to show that the references to the Labor Code violations are improper and

1 Labor Code section 2699.3, subdivision (b)(2)(A)(iii) does state that “A complaint in superior court

alleging a violation of Division 5 (commencing with Section 6300) other than those listed in Section 2699.5 shall include therewith a copy of the notice of violation provided to the division and employer pursuant to paragraph (1).” This subdivision does not apply to plaintiff’s tenth cause of action, which only alleges a claim under Labor Code section 2698, et seq. (FAC, ¶ 67.)

should be stricken. Defendant’s motion appears to rely on the assumption that the PAGA claim is defective and therefore plaintiff has no standing to assert claims that can only be brought by the Labor Commissioner. (See Motion to Strike, Points and Authorities, p. 6:5-11.) However, as discussed above, plaintiff gave proper notice to the LWDA and defendant before filing his FAC alleging a PAGA claim, so he has the right to bring a PAGA claim that asserts claims that otherwise only the Labor Commissioner could bring. (Kim v.

Reins (2020) 9 Cal.5th 73, 81.) Here, plaintiff has brought his PAGA claim in order to assert the rights of himself and other aggrieved employees of defendant. He is expressly allowed to bring claims under PAGA that would otherwise have to be brought by the Labor Commissioner. Therefore, defendant’s argument that plaintiff has improperly brought claims that only the Labor Commissioner may bring and that do not create a private right of action is incorrect. In fact, the entire purpose of PAGA is to deputize private aggrieved employees to bring actions for civil penalties on behalf of the Labor Commissioner.

Since plaintiff has properly alleged a PAGA claim, the fact that he has alleged violations of the Labor Code that would normally only be asserted by the Labor Commissioner does not mean that he has no standing to bring the claims. Consequently, the court intends to deny the motion to strike and order defendant to file its answer to the FAC.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 6-29-26. (Judge’s initials) (Date)

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