Brown v. Dave & Buster’s of California, Inc.

Facts

The queue of overlapping PAGA suits. The opinion opens with the structural problem it exists to address: “Lauren Brown is one of several plaintiffs who sued the same employer under the Labor Code Private Attorneys General Act of 2004 (Labor Code § 2699 et seq.) (PAGA) between June 2018 and June 2019.” (Brown v. Dave & Buster’s of California, Inc. (2025) 116 Cal.App.5th 164, 166.) Two corporate entities — Dave & Buster’s of California, Inc. and Dave & Buster’s, Inc. — operate the restaurants and are referred to collectively as Buster’s. (Id. at p. 167.)

Brown worked at the Westchester location from November 2016 to April 2018. In June 2019 she filed a standalone representative PAGA action alleging that Buster’s failed to provide meal periods, rest periods, vacation pay and wage statements, and that it “routinely required its employees to work off-the-clock,” seeking civil penalties for violations of various Labor Code provisions. (Brown, supra, 116 Cal.App.5th at p. 167.) Two months later Buster’s demurred to abate or stay, arguing that Brown’s action was between the same parties on the same cause of action as at least two previously filed cases — Espinoza in Los Angeles County and Lopez in San Diego County. (Ibid.)

The stay and the disclosure of the queue. Finding Brown’s case “substantially identical” to Espinoza, the trial court sustained the demurrer and stayed the case in October 2019, “to promote judicial efficiency and to avoid the potential for conflicting rulings.” (Brown, supra, 116 Cal.App.5th at p. 167.) In February 2020 Buster’s filed a status conference statement mapping the field: when each earlier PAGA case was filed, when each plaintiff had submitted the requisite notice to the Labor and Workforce Development Agency, and which claims overlapped with Brown’s. On that accounting Brown’s was “the fifth PAGA action pending against it,” the others being Espinoza, Lopez, Rocha in Santa Clara County, and Andrade in San Diego County. (Ibid.)

In June 2021 the parties reported that Buster’s was “working on a global settlement” through plaintiff’s counsel in Andrade, one that “would include Brown’s action as well.” (Brown, supra, 116 Cal.App.5th at p. 167.) At an April 2023 status conference the parties reported that Andrade had settled; Brown said she was “evaluating what claims, if any, remain,” and later suggested there might not be complete overlap as to her unpaid vacation claim. (Ibid.)

The Andrade chronology — the heart of the case. The documents Buster’s put before the court by judicial notice supply the dates on which everything turns. Andrade sent her first pre-filing notice to the agency on May 13, 2019, and filed her complaint in San Diego Superior Court on November 14, 2019; that 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 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.” (Brown, supra, 116 Cal.App.5th at p. 168.)

On April 1, 2022, Andrade — on behalf of herself, the state, and all allegedly aggrieved employees — entered a long-form settlement with all three Buster’s entities, including the two Brown had sued. The released claims expressly 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, showing that she had notified the agency of the motion and the agreement and that “the Agency accepted the settlement and would not oppose her motion.” The San Diego Superior Court approved the settlement on November 4, 2022. (Brown, supra, 116 Cal.App.5th at p. 168.)

The gap that generated the appeal is arithmetic: Andrade’s amended notice went to the agency on February 3, 2022, and her amended complaint was filed on March 10, 2022 — “Andrade waited only 35 days between sending her amended prefiling notice and filing her amended complaint in court.” (Brown, supra, 116 Cal.App.5th at p. 168.) Section 2699.3, subdivision (a)(2)(A) contemplates 65 days.

Procedural history

In June 2023 Buster’s moved for judgment on the pleadings, arguing that the Andrade settlement released all of Brown’s claims and that claim preclusion barred her suit entirely. The motion “also asserted Brown lacks standing to bring representative claims for any PAGA violations occurring on or after the date of the Andrade settlement approval.” (Brown, supra, 116 Cal.App.5th at pp. 167–168.)

Brown’s opposition proceeded on two tracks. She asserted standing to bring all of the claims in her PAGA letter because Buster’s had violated her own Labor Code rights. Then, citing LaCour v. Marshalls of California (2023) 94 Cal.App.5th 1172, 1194, she 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” — so the settlement reached neither the additional Buster’s entities nor Brown’s section 227.3 vacation pay claim. (Brown, supra, 116 Cal.App.5th at p. 168.)

“The trial court granted Buster’s motion without written comment, dismissed Brown’s complaint with prejudice, and entered judgment in Buster’s favor.” (Brown, supra, 116 Cal.App.5th at p. 169.) Brown appealed. Review of an order granting judgment on the pleadings is independent (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), but the appellant “bears the burden of showing trial court error” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564). (Brown, supra, 116 Cal.App.5th at p. 169.)

Two dispositive narrowings before the merits. The scope of the appeal collapsed at the threshold, and practitioners should read this part first. The court found that “Brown’s opening brief identifies no error”; she instead repeated her trial-court arguments about standing and Andrade’s exhaustion. “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 nonvacation pay claims.” (Brown, supra, 116 Cal.App.5th at p. 169, citing Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) The court then rejected as “unsupported” Brown’s argument “that she has standing to pursue Labor Code violations occurring after November 4, 2022, which was the date the court approved the Andrade settlement,” because “[i]t is undisputed that Brown’s employment with Buster’s ended in 2018.” (Id. at p. 169, citing Robinson v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 484.)

What survived was a single question. (Brown, supra, 116 Cal.App.5th at p. 169.)

Issue

The court framed it in one sentence: “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?” (Brown, supra, 116 Cal.App.5th at p. 169.)

The statutory text at issue is section 2699.3, subdivision (a)(2)(A), which provides that if the agency does not respond within 65 calendar days of an aggrieved employee’s written notice, “the aggrieved employee may commence a civil action pursuant to Section 2699.” The court accepted the premise of Brown’s argument as a matter of fact: “Andrade did indeed file her operative amended complaint fewer than 65 days after her amended notice to the Agency.” (Brown, supra, 116 Cal.App.5th at p. 169.)

Holding

Reasoning

1. Vocabulary first, and it is not merely cosmetic. The court declined the parties’ “res judicata” framing: “Although the parties’ briefing uses the term ‘res judicata,’ following our Supreme Court’s lead, we refer to ‘claim preclusion.’” (Brown, supra, 116 Cal.App.5th at p. 166, citing DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–824.) The substitution matters because DKN Holdings separates claim preclusion from issue preclusion and supplies the three-element test the court then applies: “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.” (Id. at p. 169, citing DKN, supra, 61 Cal.4th at pp. 824–825.) The 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.” (Ibid., citing 5th & LA v. Western Waterproofing Co., Inc. (2023) 87 Cal.App.5th 781, 788.)

2. LaCour is read carefully — and then confined to its own ground. Brown’s entire theory was LaCour: “Brown relies on the LaCour decision to vault her over the bar of the Andrade settlement.” (Brown, supra, 116 Cal.App.5th at p. 170.) The court took the analogy seriously, cataloguing the structural parallels — a standalone PAGA claim against a former employer, an employer invoking claim preclusion from an earlier PAGA settlement, a challenge to the first and second preclusion elements, and a trial court that granted judgment on the pleadings. (Id. at p. 170.) It then set out what LaCour actually held: 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,” she was not authorized to settle “the raft of additional wage-and-hour violations LaCour [sought] to pursue . . . ,” and therefore “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. 170, quoting LaCour, supra, 94 Cal.App.5th at pp. 1192–1193, 1195.) The same lack of authorization drove LaCour’s privity conclusion: Paulino and LaCour did not share an “identity or community of interest.” (Ibid.)

The reading disposes of the analogy. LaCour’s defect was substantive scope — claims never described to the agency at all. Andrade’s alleged defect was timing — claims described to the agency, but sued on 30 days early. Brown’s argument required extending LaCour from the first category to the second, and the court declined: “On this administrative exhaustion issue, LaCour does not apply.” (Brown, supra, 116 Cal.App.5th at p. 171.)

3. Purpose supplies the limiting principle. The court grounded that conclusion in the function of the notice requirement rather than in a canon of construction. Our Supreme Court has described the pre-filing notice requirement as “a condition of suit” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545), and its purpose 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). (Brown, supra, 116 Cal.App.5th at p. 171.) Where the agency has the allegations and the basis for them — as it did, twice — the informational purpose is served whatever the calendar shows. From that premise the textual observation follows naturally: “Nothing in the statute’s language or any published case law suggests the 65-day waiting period also applies to amended notices and complaints.” (Ibid.)

4. Persuasive federal authority, handled honestly. Buster’s had marshalled federal district decisions declining to require strict adherence to the waiting period — two finding “little reason” to punish plaintiffs for acting too quickly once the agency was notified and the period elapsed without agency action (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), and a third reasoning that incomplete compliance “did not thwart the purpose of the prefiling notice requirement in the statute—giving the Agency the opportunity to investigate the alleged violations” (Garnett v. ADT, LLC (E.D.Cal. 2015) 139 F.Supp.3d 1121, 1128). (Brown, supra, 116 Cal.App.5th at p. 171.) The court did not pretend these bound it: “As Brown observes in her reply, we are not bound to follow these cases.” (Ibid.) It used them instead as evidence of a convergent reading, and then anchored the point in California authority.

5. Substantial compliance, imported from the Government Claims Act. That anchor is the doctrine of substantial compliance: “Moreover, the federal cases Buster’s cites are consistent with the long-standing doctrine of substantial compliance, which arose in the context of the Government Claims Act, Government Code section 810 et seq.” (Brown, supra, 116 Cal.App.5th at p. 172.) The court quoted Hall v. City of Los Angeles (1941) 19 Cal.2d 198, 202 for the proposition that “a defect in the form of compliance is not fatal so long as there is substantial compliance with the essentials of the requirement,” and Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713 for the rule that a court may excuse small deficiencies where the notice “substantially complies with all of the statutory requirements for [a] valid claim.” (Id. at p. 172.) The bridge is functional: “Like PAGA, the Government Claims Act also has a prefiling notice requirement, the purpose of which is to notify the relevant government agency of alleged legal violations before a plaintiff files a civil action.” (Id. at p. 172.) This is the opinion’s most consequential doctrinal move, and it is made in a single paragraph.

6. Caliber cuts the other way. Brown’s own authority was footnote 18 of Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 383, where a demurrer should have been sustained because the plaintiffs failed to plead compliance with PAGA’s notice requirements and leave to amend would have been futile absent a showing of how they would amend. (Brown, supra, 116 Cal.App.5th at p. 171.) The court found the comparison unhelpful to Brown for a simple reason: “Unlike the plaintiff in Caliber, Andrade did plead compliance with the prefiling notice requirements in her amended complaint.” (Id. at p. 171.) Caliber polices pleading; it does not convert a timing shortfall into a jurisdictional void.

7. Harmlessness, and the collateral-attack problem. The court’s closing moves are practical. “Andrade provided notice to the Agency of her vacation pay claim and allegations as to the additional Buster’s entities.” Between that sentence and the next the court inserts its own limit — “The statute itself and case law are silent as to whether the prefiling notice requirements apply to Andrade’s amended notice” — and then concludes: “Regardless, Andrade substantially fulfilled the purpose of the PAGA prefiling notice requirement in her amended notice.” (Brown, supra, 116 Cal.App.5th at p. 172.) Then the disposition of the point: “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.” (Ibid.) The court also identified the systemic cost of the contrary rule, adopting the respondent’s framing: “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.” (Ibid.)

8. Turrieta as the structural backstop. The final authority is Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 715, in which the Supreme Court “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,’” reasoning that opening that door was contrary to PAGA’s text, statutory scheme, and legislative history. (Brown, supra, 116 Cal.App.5th at p. 172.) Brown’s challenge was not a formal objection in the Andrade court; it was a second-court attack on the same settlement’s validity. The court treated Turrieta’s logic as reaching that too. From there: “Andrade’s settlement fully encompassed and released Brown’s claims as to all Buster’s entities, thus satisfying all elements of claim preclusion. [Citation.] The trial court was right to grant Buster’s motion.” (Id. at p. 172.)

Significance

The doctrinal contribution is narrow and worth stating precisely: section 2699.3, subdivision (a)(2)(A)’s 65-day waiting period has not been held to govern amended notices and amended complaints, and a shortfall in observing it as to an amended notice does not, standing alone, strip an earlier PAGA settlement of preclusive effect. The court did not hold that the waiting period is unimportant, that it may be disregarded as to an initial notice, or that PAGA exhaustion is a formality. Its two express supports were the absence of statutory or case authority extending the period to amendments, and substantial compliance with the notice requirement’s informational purpose. (Brown, supra, 116 Cal.App.5th at p. 172.)

Read alongside LaCour, the two decisions now mark the boundaries of the “the first settlement did not bind me” argument. LaCour succeeds where the earlier plaintiff’s notice never described the claims later settled — the settling plaintiff was never deputized as to them. Brown fails where the notice described the claims and the entities but the filing came early. The line is between authorization and timing, and after Brown a plaintiff who cannot locate a scope gap in the earlier notice has little left.

The importation of Government Claims Act substantial-compliance doctrine into PAGA exhaustion is the development most likely to be cited beyond these facts. It is a genuine extension: the Government Claims Act cases the court relied on run from 1941 to 1990 and arise from a different statutory scheme, and the opinion supplies no separate analysis of why PAGA’s deputization structure tolerates the same forgiveness. Practitioners on both sides should expect the doctrine to be pressed well past the amended-notice context in which it was deployed here.

Finally, the decision is a reminder of how much of PAGA practice is now sequencing rather than merits. Brown filed fifth in a queue of five overlapping representative actions; her case was stayed for years while a settlement was negotiated in another court, in another county, by another plaintiff’s counsel; and it ended on the pleadings without any adjudication of whether Buster’s violated the Labor Code. The court’s account of the timeline — global settlement “through plaintiff’s counsel in the Andrade action” as early as June 2021, approval in November 2022, judgment on the pleadings in 2023 — is the operative narrative. (Brown, supra, 116 Cal.App.5th at pp. 167–168.)

A currency note: the opinion was certified for publication on filing, and the official citation has since issued at 116 Cal.App.5th 164 (parallel 339 Cal.Rptr.3d 270); all pinpoints here are to the official reports. Confirm the case’s subsequent history with a citator before relying on it.

Key quotes

“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?” (Brown v. Dave & Buster’s of California, Inc. (2025) 116 Cal.App.5th 164, 169.)

“Nothing in the statute’s language or any published case law suggests the 65-day waiting period also applies to amended notices and complaints.” (Id. at pp. 171–172.)

“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.” (Id. at p. 172.)

“Andrade’s settlement fully encompassed and released Brown’s claims as to all Buster’s entities, thus satisfying all elements of claim preclusion.” (Id. at p. 172.)

“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 nonvacation pay claims.” (Id. at p. 169.)

Read the full opinion (CourtListener) →

Practice pointer

Open questions

Does the 65-day period ever bind an amended notice? The court said nothing in the statute or published case law extends it to amendments (Brown, supra, 116 Cal.App.5th at p. 171), but it did not hold affirmatively that the period never applies to an amended notice; it reasoned in the alternative from substantial compliance and harmlessness (id. at p. 172). A case in which the amended notice adds claims the agency has had no meaningful chance to evaluate will test the point.

How far does substantial compliance travel in PAGA? The doctrine was imported from Government Claims Act practice to excuse a 30-day shortfall (Brown, supra, 116 Cal.App.5th at p. 172). Whether it can excuse a wholly omitted notice, a notice omitting the statutory basis, or a filing before any period has run is unaddressed — and Caliber suggests limits, since the court distinguished it on the ground that Andrade “did plead compliance” (id. at p. 171).

What weight does agency acquiescence carry? The court twice noted that the agency accepted the settlement and declined to oppose approval (Brown, supra, 116 Cal.App.5th at pp. 168, 172). Whether that acceptance is itself sufficient to cure a notice defect, or merely evidence that the notice’s purpose was served, is not resolved.

The two LaCour decisions. The LaCour discussed here is LaCour v. Marshalls of California (2023) 94 Cal.App.5th 1172, the presuit-notice-scope decision — not the later Marshalls appeal addressing whether a 2014 arbitration agreement consented to splitting a PAGA claim. They resolve different questions and should not be conflated in briefing.

Preclusion outside a judgment on the pleadings. Everything here was decided on the pleadings plus judicially noticed Andrade filings (Brown, supra, 116 Cal.App.5th at pp. 167–168). Whether a plaintiff who develops evidence that the earlier settlement was collusive or inadequately vetted has a route around preclusion — a question Turrieta reserves in its own way — is untouched by this opinion.