Whistleblower Victory Means Public Entities are Subject to PAGA – Sargent v. Board of Trustees

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Whistleblower Victory Means Public Entities are Subject to PAGA – Sargent v. Board of Trustees

Whistleblower Victory Means Public Entities are Subject to PAGA – Sargent v. Board of Trustees

The Court of Appeal today certified for partial publication (hopefully soon to be full publication) Sargent v. Board of Trustees of CSU, a case led by Collier Law Firm (Bryan Schwartz Law, P.C.’s co-counsel) with amicus support from Bryan Schwartz Law, P.C. writing on behalf of the California Employment Lawyers Association.

In Sargent,the Court of Appeal held unequivocally that aggrieved public employees can bring some PAGA claims against their employers – in particular, PAGA claims derived from Labor Code sections that provide for civil penalties (i.e., as opposed to those where only PAGA default penalties would be implicated). Government entities have argued that PAGA categorically does not apply to them – with some success at the the trial court level – but this decision should put that argument to rest. The Court relied on Kim v. Reins’ holding that an employee has standing to bring PAGA claims when he/she was aggrieved by at least one claim personally – even if he/she did not personally experience all the violations.

Plaintiff Sargent blew the whistle on health/safety violations at the CSU, involving asbestos and other hazardous materials. He promptly received six written reprimands and ultimately was constructively discharged. The jury found cat’s paw liability, under Reeves v. Safeway (CACI 2511), after the trial court sustained some of plaintiff’s important evidentiary objections – which the Court of Appeal upheld.

The Collier Law Firm fought thousands of hours in the trenches to prevail in the underlying jury verdict (the docket ran 167 pages, as the Court of Appeal pointed out). Though the plaintiff’s underlying award will be modest, the Court of Appeal upheld a $7.8M fee award resulting from Defendant’s scorched-earth litigation tactics, plus a well-deserved 2.0 lodestar fee multiplier. The Court rejected apportionment between successful/unsuccessful claims, and held that fees were supported under public-benefit theory, CCP 1021.5 (and did not reverse the trial court’s finding that they were appropriate also under catalyst theory). Importantly, the Court of Appeal rejected CSU’s argument that CSU should not have to pay such a fee multiplier because the defendant is a public entity.

Sargent serves as a cautionary tale to defendants who fight with scorched-earth litigation tactics. The Court of Appeal cited defense counsel’s billed hours and number of attorneys staffed on the file, as evidence that plaintiffs’ counsel’s billing was not excessive and that plaintiff’s fees were reasonable. The Court upheld the award even though it reversed all the PAGA penalties that were awarded to the plaintiff (because they were not based upon PAGA penalties for Labor Code violations of sections with their own penalty provisions).

Bryan Schwartz Law, P.C. congratulates the Collier Law Firm and all those who worked to win the important Sargent precedent.

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