Colores v. Ray Moles Farms, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FILEMON COLORES, as an individual Case No. 1:21cv-00101-JLT-BAM and on behalf of all others similarly (Consolidated with 1:21-cv-00467-JLT-BAM) 12 situated, ORDER GRANTING IN PART 13 Plaintiff, DEFENDANT’S MOTION TO COMPEL ARBITRATION AND DISMISSING 14 v. PLAINTIFF’S FIRST SEVEN CAUSES OF ACTION WITHOUT PREJUDICE; DENYING 15 RAY MOLES FARMS, INC., a California PLAINTIFF’S MOTION TO STRIKE; AND Corporation; and DOES 1 through 100, STAYING REMAINING MOTIONS 16 Defendant. (Docs. 15, 21, 35, 38, 44) 17 18 RAY MOLES FARMS, INC., a California Corporation, 19 Cross-Complainant, 20 v. 21 FILEMON COLORES, as an individual on 22 behalf of all others similarly situated, 23 Cross-Defendants. 24 25 Filemon Colores brings suit on behalf of himself and similarly situated individuals 26 alleging that Ray Moles Farms, Inc. (“Ray Moles”) engaged in several violations of the 27 California Labor Code and Business and Professional Code. (Doc. 1 at 12–29). Ray Moles 28 contends that Colores’s individual claims must be arbitrated. (Doc. 21-1 at 8–18.) Colores 1 counters that Ray Moles has waived its right to arbitrate. (Doc. 25.) For the reasons below, 2 Defendant Ray Moles’s Motion to Compel Arbitration is GRANTED IN PART. The claims 3 compelled to arbitration are DISMISSED WITHOUT PREJUDICE. The claims not 4 compelled to arbitration, as well as all pending motions regarding those claims, will be 5 STAYED pending the California Supreme Court’s decision in Adolph v. Uber Technologies, 6 Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App., Apr. 11, 2022), review granted (Cal. July 7 20, 2022). 8 BACKGROUND 9 Filemon Colores was a non-exempt farm labor employee who worked for Ray Moles on 10 a seasonal basis from approximately January 2016 to February 2, 2020. Ray Moles employed 11 workers like Colores to harvest agricultural commodities in the state of California, including 12 Tulare County. (Doc. 1 at 13–14, ¶¶ 3–4.) During different time periods, Colores was paid 13 either hourly or on a piece rate basis for his work at Ray Moles vineyards. (Doc. 1 at 15, ¶ 9.) 14 Colores originally filed this suit as a class action in November 2020 in the Tulare County 15 Superior Court, alleging violations of California’s Labor Code and Unfair Competition Law. 16 (Doc. 1 at 12–29.) According to Colores, Ray Moles failed to: (1) comply with minimum wage 17 requirements; (2) pay overtime wages; (3) provide proper meal periods; (4) provide proper rest 18 periods; (5) provide compliant itemized wage statements; (6) pay wages due at termination; and 19 (7) comply with California’s Unfair Competition Law. (Id.) Ray Moles removed the action to 20 this Court on January 25, 2021 on the basis of the Class Action Fairness Act and immediately 21 filed an answer. (Doc. 1 at 2; Doc 4.) These first seven claims constitute Colores’s “non- 22 PAGA” claims. 23 Colores later filed a related claim (“the PAGA claim”) against Ray Moles under the 24 California Private Attorneys General Act (“PAGA”), California Labor Code §§ 2698, et seq., 25 which Ray Moles removed to this Court and consolidated with the present case. (Doc. 10; see 26 also Colores v. Ray Moles Farms, Inc., No. 1:21-cv-467-NONE-SAB at Doc. 1.) In May 2021, 27 Ray Moles filed: an answer to the consolidated claims; a counterclaim for injunctive and 28 declaratory relief on the grounds that PAGA violates both the California and federal 1 Constitutions (Docs. 12, 13); and a Motion for Judgment on the Pleadings or, in the alternative, 2 Partial Summary Judgment, which argued for dismissal of all Colores’s claims with prejudice for 3 failure to state a claim upon which relief could be granted. (See Doc. 15-1.) 4 The parties then agreed to attend mediation on November 2, 2021. Colores propounded 5 “informal mediation requests” which asked for employees’ timekeeping and payroll data, as well 6 as wage and hour policies, employee handbooks, and Colores’s own personnel file. (Doc. 25-1 7 at 31, Ex. J.). Colores alleges that, despite the upcoming mediation, Ray Moles did not respond 8 to any communications from May 2021 through August 2021. (Doc. 25-1 at ¶ 23.) 9 Colores alleges that Ray Moles did not bring the arbitration agreement (the “Agreement’) 10 to his attention until September 27, 2021. (Doc. 25-1 at ¶ 24.) As early as September 30, 2021, 11 Colores claims that Ray Moles indicated a forthcoming motion to compel if Colores “did not 12 agree by October 5, 2021 to stipulate to arbitrate his claims.” (Doc. 25-1 at ¶ 24.) And, indeed, 13 Ray Moles moved to compel arbitration on October 6, 2021. (Doc. 21.) The motion to compel 14 included a copy of the Agreement that Colores signed when he was first hired by Ray Moles, 15 dated December 5, 2016. (Doc. 21-2.) The Agreement provides that: 16 Any and all past, present and future disputes between you (the Employee) and the Employer (and/or its agents, supervisors, 17 officers and owners) [including but not limited to disputes about your job application process, your employment, and your compensation, and 18 all disputes related to, resulting from, or arising out of the employment relationship] shall be solely and exclusively resolved by final and 19 arbitration on an individual basis before a neutral retired judge, conducted under the provisions of the Federal Arbitration Act in 20 Fresno, California. Class action lawsuits, and class action arbitrations, and any combining of individual proceedings, without 21 the written consent of all the parties, are waived and shall not be allowed. 22 (Doc. 21-2 at 2.) 23 Based on the Agreement, Ray Moles seeks to compel arbitration of all of Colores’s non- 24 PAGA claims (causes of action 1-7), as well as the individual portion of Colores’s PAGA claim. 25 Colores opposed the motion to compel on November 2, 2021, arguing Ray Moles waived its 26 right to arbitration by “engaging in almost 12 months of active and prolonged litigation.” (Doc. 27 28 1 25 at 9.) Ray Moles filed its Reply on November 9, 2021. (Doc. 28.)1 Both parties submitted 2 supplemental briefing in March 2023 at the Court’s request. (Docs. 60, 61, 62.) 3 After the motion to compel was filed, the Court received several motions related to Ray 4 Moles’s counterclaim challenging the constitutionality of PAGA. Specifically, Colores filed a 5 motion to dismiss Ray Moles’s counterclaim, (Doc. 35), and the California Attorney General 6 requested leave to intervene in defense of PAGA. (Doc. 44.) These motions, still pending, are 7 addressed by this Order. 8 LEGAL STANDARDS 9 A written provision in any contract evidencing a transaction involving commerce to settle 10 a dispute by arbitration is subject to the Federal Arbitration Act (“FAA”). 9 U.S.C. § 2. The 11 FAA confers on the parties involved the right to obtain an order directing that arbitration proceed 12 in the manner provided for in a contract between them. 9 U.S.C. § 4. In deciding a motion to 13 compel arbitration, the court is “limited to determining (1) whether a valid agreement to arbitrate 14 exists [within the contract] and, if it does, (2) whether the agreement encompasses the dispute at 15 issue.” Boardman v. Pacific Seafood Group, 822 F.3d 1011, 1017 (9th Cir. 2016) (citing Chiron 16 Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000) (brackets in original)). 17 Because there is an “emphatic federal policy in favor of arbitral dispute resolution,” 18 Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, 473 U.S. 614, 631 (1985), “‘any doubts 19 concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the 20 problem at hand is the construction of the contract language itself or an allegation of waiver, 21 delay, or a like defense to arbitrability.’” Id. at 626 (quoting Moses H. Cone Mem’l Hosp. v. 22 Mercury Const. Corp., 460 U.S. 1, 24–25 (1983)). The federal policy in favor of arbitration is 23 “about treating arbitration contracts like all other[ contracts]”; “the FAA's ‘policy 24 favoring arbitration’ does not authorize federal courts to invent special, arbitration-preferring 25 procedural rules.” Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713 (2022). As such, the right 26 1 Colores requests that the Court strike Ray Moles’s Reply on the basis that it is over the permitted length and 27 included “new” information about whether Ray Moles met and conferred with Colores before filing the motion to compel. Because the Court’s analysis and decision on the motion to compel do not rely on the allegedly “new” 28 information, the motion to strike is DENIED as MOOT. 1 to arbitration, like other contractual rights, can be waived. Courts apply ordinary state-law 2 principles governing contracts to determine whether to invalidate or enforce an arbitration 3 agreement. Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003) (quoting First 4 Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). 5 ANALYSIS 6 Ray Moles contends that the Court must compel arbitration because Colores agreed, in a 7 binding and enforceable arbitration agreement, to arbitrate his individual claims and waive the 8 right to bring a class claim. (Doc. 21 at 12.) By its terms, the Agreement covers “any and all” 9 disputes between employee and employer, including “disputes about . . . compensation, and all 10 disputes related to, resulting from, or arising out of the employment relationship”. (Doc. 21-2 at 11 2.) Colores does not dispute that he signed the Agreement. However, the parties disagree as to 12 (1) whether Ray Moles waived its right to arbitration in this suit by acting inconsistently with 13 that right and, if Ray Moles has not waived arbitration rights, (2) the extent to which Colores’s 14 claims—especially his PAGA claims—can be compelled to arbitration. Because the issue of 15 waiver would be determinative, the Court addresses it first. 16 A. Waiver 17 Colores argues that although he signed an arbitration agreement which may apply to his 18 claims, Ray Moles waived its right to arbitrate by engaging in behavior inconsistent with that 19 right. (Doc. 25.) Previously, parties in the Ninth Circuit arguing that their opponent waived the 20 right to arbitrate bore “the heavy burden of demonstrating” that their opponent “(1) [had] 21 knowledge of an existing right to compel arbitration”; committed “(2) intentional acts 22 inconsistent with that existing right; and (3) [caused] prejudice to the person opposing arbitration 23 from such inconsistent acts.” Hill v. Xerox Bus. Servs., LLC, 59 F.4th 457 (9th Cir. 2023) (citing 24 Newirth by & through Newirth v. Aegis Senior Communities, LLC, 931 F.3d 935, 939 (9th Cir. 25 2019). The Supreme Court eliminated the prejudice requirement in Morgan v. Sundance, Inc., 26 142 S.Ct. 1708 (2022), leaving the “knowledge” and “inconsistent acts” requirements in place. 27 Morgan also lessened the burden on the party asserting waiver; it is no longer “heavy”. 28 Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1014–15 (9th Cir. 2023). Therefore, to 1 demonstrate waiver, Colores now bears the ordinary burden of showing only that Ray Moles (1) 2 had knowledge of the right to arbitrate and (2) intentionally acted inconsistently with that right. 3 The Ninth Circuit’s “body of caselaw . . . applying these two elements remains good law 4 following Morgan”. Hill, 59 F.4th at 460. 5 Ray Moles does not contest that it had knowledge of its right to compel arbitration, so the 6 remaining issue is whether Ray Moles waived its right to arbitration by engaging in litigation 7 conduct that is inconsistent with such a right. “Under California law, factors that may be 8 considered to determine whether arbitration has been waived include: whether “the litigation 9 machinery has been substantially invoked”; whether the parties were “well into the preparation 10 of a lawsuit” before the applicable party served notice of intent to arbitrate; whether arbitration 11 was sought close to the trial date or otherwise delayed for a long period; and whether important 12 “intervening steps,” such as taking advantage of judicial discovery procedures not available in 13 arbitration, took place before the intent to compel arbitration was made clear. St. Agnes Med. 14 Center v. PacifiCare of California, 31 Cal.4th 1187, 1196 (2003); see also Cox v. Ocean View 15 Hotel Corp., 533 F.3d 1114, 1124 (9th Cir. 2008). 16 When evaluating waiver, courts in this circuit generally consider “the totality of the 17 parties’ actions,” and ask, “whether a party’s actions indicate a conscious decision to seek 18 judicial judgment on the merits of the arbitrable claims, which would be inconsistent with a right 19 to arbitrate.” Newirth, 931 F.3d at 941 (9th Cir. 2019) (cleaned up) (abrogated on other 20 grounds). “A party’s extended silence and delay in moving for arbitration may indicate a 21 ‘conscious decision to continue to seek judicial judgment on the merits of [the] arbitrable 22 claims.’” Martin v. Yasuda, 829 F.3d 1118, 1125 (9th Cir. 2016) (quoting Van Ness Townhouses 23 v. Mar Indus. Corp., 862 F.2d 754, 759 (9th Cir. 1988)). Additionally, the “inconsistent acts” 24 element is satisfied “when a party chooses to delay his right to compel arbitration by actively 25 litigating his case to take advantage of being in federal court.” Martin, 829 F.3d at 1125. Taking 26 strategic advantage of being in court includes actions such as conducting discovery and seeking 27 a judicial judgment on the merits of an issue. Martin, 829 F.3d at 1125. 28 Colores argues that Ray Moles waived its right to arbitrate by removing this suit to 1 federal court, filing motions to dismiss that seek rulings on the merits of Colores’s claims, 2 stipulating to the continuation of Mandatory Scheduling Conferences, filing a counterclaim, and 3 agreeing to mediation on a class basis. (Doc. 25 at 2–3.) Colores further complains that Ray 4 Moles took most of these actions before informing Colores, on September 27, 2021, about the 5 existence of the Agreement. (Doc 25 at 3.) Ray Moles counters that it raised arbitration as a 6 defense to Colores’s claims in its Answers. (Doc. 28 at 5, see also Doc. 4 at 6, ¶ 20.) Ray 7 Moles also claims that it provided and discussed the Agreement with Colores in communications 8 throughout the litigation. 9 Colores is correct that Ray Moles’s mere mention of arbitration in its Answers is “not 10 enough to defeat a claim of waiver.” Martin, 829 F.3d at 1125 (“A statement by a party that it 11 has a right to arbitration in pleadings or motions is not enough to defeat a claim of waiver.”). 12 Colores is also correct that Ray Moles sought a decision on the merits of this action in its motion 13 to dismiss (Doc. 15), an action which may be inconsistent with the right to arbitrate. Martin, 829 14 F.3d at 1125. However, even without a “heavy” burden, Colores fails to demonstrate that Ray 15 Moles waived its right to arbitrate under the totality of the circumstances. 16 Colores points the Court to no case with truly comparable facts. Instead, he relies on 17 cases where the party seeking arbitration had either received a decision on the merits, 18 participated in discovery before filing their motion to compel, or otherwise evinced a clear intent 19 to proceed with the litigation. See, e.g., Gile v. Dolgen California, LLC, No. 5:20-CV-01863- 20 MCS-SP, 2021 WL 5830041 (C.D. Cal. Nov. 15, 2021), aff’d, No. 21-56311, 2022 WL 21 17248087 (9th Cir. Nov. 28, 2022) (finding waiver where defendant sought arbitration after 22 winning a motion to dismiss on the merits); Hill, 59 F.4th at 474 (defendant propounded 23 discovery before revealing an arbitration agreement); Davis v. Shiekh Shoes, LLC, 84 24 Cal.App.5th 956, 968 (2022) (defendant waited 17 months to compel arbitration after setting and 25 delaying a trial date); McBurnie v. Acceptance Now, LLC, No. 3:21-CV-01429-JD, 2022 WL 26 17342195 (N.D. Cal. Nov. 30, 2022) (defendant actively engaged in discovery, participated in 27 settlement discussions, and extended case deadlines “each time representing that they were 28 actively working to move the litigation forward.”); Hoover v. Am. Income Life Ins. Co., 206 1 Cal.App. 4th 1193, 1205 (2012) (defendant “availed itself of discovery mechanisms like 2 depositions not available in arbitration”); Sobremonte v. Superior Ct. (Bank of Am. Nat. Tr. & 3 Sav. Ass’n), 61 Cal. App. 4th 980, 980, as modified (Feb. 26, 1998) (defendant participated in 4 five trial court hearings, including two status conferences, and extensive discovery). In fact, 5 even where the party seeking arbitration has filed a motion to dismiss on the merits, the Ninth 6 Circuit has not found waiver without prolonged delays and “significant additional litigation 7 activity.” United Specialty Ins. Co. v. Clean & Sober Media LLC, No. 2:20-CV-02765-RGK- 8 KS, 2021 WL 3623300, at *2 (C.D. Cal. Apr. 16, 2021) (discussing cases). 9 Courts have held that parties may participate in litigation without waiving their arbitral 10 rights if their purpose in participation is to “avoid or frustrate the litigation rather than a strategic 11 decision to actively litigate [and] forgo the right to compel arbitration.” Newirth, 931 F.3d at 12 941–42 (abrogated on other grounds) (internal citations omitted); Chartwell Staffing Servs. v. 13 Atl. Sols. Grp., Inc., 2020 WL 620294, at *9 (C.D. Cal. Jan. 9, 2020). In Hansber, for example, 14 the court declined to find waiver where a defendant removed the case to federal court, filed a 15 motion to dismiss (which was granted in part), filed an answer to an amended complaint, 16 responded to plaintiff’s discovery requests, attempted to join other parties, and waited nearly two 17 years before filing a motion not compel. Hansber v. Ulta Beauty Cosms., LLC, No. 18 121CV00022AWICDB, ––– F.Supp.3d ––––, ––––, 2022 WL 16836627, at *6 (E.D. Cal. Nov. 19 9, 2022). Ray Moles’s actions in this case are comparable to the Hansber defendant’s; its 20 actions, while potentially dilatory, evince an intent to merely frustrate the litigation. As such, the 21 Court finds that Ray Moles has not waived its right to arbitrate in this case. 22 B. Enforceability of the Agreement 23 Having found that Ray Moles did not waive its right to arbitrate the issues in this case, 24 the Court now examines the validity of the Agreement and its applicability on Colores’s claims. 25 “The basic role for courts under the FAA is to determine ‘(1) whether a valid agreement to 26 arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at 27 issue.’” Kilgore v. KeyBank Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013). 28 /// 1 1. Non-PAGA Claims 2 Colores does not dispute that he signed the Agreement or that the Agreement 3 encompasses his non-PAGA claims, the first seven causes of action in his complaint. As such, 4 the Court GRANTS Ray Moles’s motion to compel individual arbitration of Colores’s non- 5 PAGA claims. The non-PAGA claims are therefore DISMISSED WITHOUT PREJUDICE. 6 California Lab. & Workforce Dev. Agency ex rel. Raymond v. CompuCom Sys., Inc., No. 7 221CV02327KJMKJN, 2023 WL 2466236, at *1 (E.D. Cal. Mar. 10, 2023) (indicating that the 8 court dismissed plaintiff’s individual and putative class wage and hour claims after compelling 9 arbitration as to the former). 10 2. PAGA Claims 11 As to Colores’s PAGA claims in his eighth cause of action, there remains significant 12 disagreement. Ray Moles does not dispute that the Agreement does not contain an explicit 13 waiver of PAGA claims; however, Ray Moles argues that the Agreement encompasses some of 14 Colores’s PAGA claims, which should appropriately be split into “individual” arbitrable claims 15 and “representative” non-arbitrable claims per the Supreme Court’s decision in Viking River 16 Cruises v. Moriana, ––– U.S. ––––, 142 S. Ct. 1906, 1923–26 (2022). (Doc. 21-1 at 18.) 17 The Viking River Court explained that PAGA actions are “representative” in two ways: 18 (1) “in that they are brought by employees acting as representatives—that is, as agents or 19 proxies—of the State”; and that (2) “they are predicated on code violations sustained by other 20 employees.” 142 S. Ct. at 1916. The Court further explained that “when the word 21 ‘representative’ is used in the second way, it makes sense to distinguish ‘individual’ PAGA 22 claims, which are premised on Labor Code violations actually sustained by the plaintiff, from 23 ‘representative’ (or perhaps quasi-representative) PAGA claims arising out of events involving 24 other employees.” Id. 25 Prior to Viking River, the California Supreme Court in Iskanian v. CLS Transp. L.A., 26 LLC, 59 Cal. 4th 348, 383–84 (2014), mandated that “categorical waivers of PAGA standing are 27 contrary to state policy and that PAGA claims cannot be split into arbitrable individual claims 28 and nonarbitrable ‘representative’ claims.” Viking River, 142 S. Ct. at 1916. Viking River 1 overturned the latter half of this rule on the grounds that Iskanian’s holding was preempted by 2 the FAA “insofar as it precludes division of PAGA actions into individual and non-individual 3 claims through an agreement to arbitrate.” Viking River, 142 S. Ct. at 1923–26. However, 4 Viking River left intact Iskanian’s holding that wholesale waivers of PAGA claims are invalid 5 because they would impermissibly include waiver of a plaintiff’s ability to bring agent/proxy 6 representative claims. Viking River, 142 S. Ct. at 1924–25. “Thus, under Viking River, waivers 7 of the right to assert representative PAGA claims on the state’s behalf remain barred, but 8 employees may waive the right to bring PAGA claims that are specifically premised on labor 9 code violations they have personally suffered.” Hansber, 2022 WL 16836627, at *6 (E.D. Cal. 10 Nov. 9, 2022) (citing Viking River, 142 S. Ct. at 1923–26). 11 In supplemental briefing ordered by the Court as to Viking River’s impact on the pending 12 motion, (Doc. 60), Colores argues that the Agreement constitutes a “wholesale” waiver of all his 13 PAGA claims, though he cites no authority in support of his argument. The Supreme Court in 14 Viking River found a wholesale waiver in an arbitration agreement that prohibited the plaintiff 15 from bringing “any dispute as a class, collective, or representative action under PAGA.” Viking 16 River, 142 S. Ct. at 1911. Similarly, in Potts v. Sirius XM Radio Inc., the court found a 17 wholesale waiver in an arbitration agreement that did not specifically mention PAGA claims but 18 that otherwise prohibited “representative action[s].” No. CV 21-9755-DMG (KSX), 2022 WL 19 17098184, at *5 (C.D. Cal. Oct. 25, 2022). 20 Here, the Agreement does not make any reference to PAGA claims or “representative” 21 claims; it merely states that “all disputes related to, resulting from, or arising out of the 22 employment relationship[] shall be solely and exclusively resolved by final and binding 23 arbitration on an individual basis” and that “[c]lass action lawsuits, and class action arbitrations, 24 and any combining of individual proceedings, without the written consent of all the parties, are 25 waived and shall not be allowed.” (Doc. 21-2 at 2.) It appears from this language that the 26 waiver seeks to limit only those PAGA claims predicated on code violations sustained by other 27 employees. See Shams v. Revature LLC, No. 22-CV-01745-NC, ––– F.Supp.3d ––––, ––––, 28 2022 WL 3453068, at *2 (N.D. Cal. Aug. 17, 2022) (finding no wholesale waiver even in an 1 arbitration agreement waiving “private attorney general actions” because “the context of where 2 ‘private attorney general’ appears makes clear that the waiver applies to non-individual 3 representative actions, not [the employees] individual PAGA claims on behalf of the State.”); see 4 also Johnson v. Lowe’s Home Centers, LLC, No. 221CV00087TLNJDP, ––– F.Supp.3d ––––, – 5 –––, 2022 WL 4387796, at *3–4 (E.D. Cal. Sept. 22, 2022). Because the Agreement does not 6 prohibit Colores from bringing agent/proxy claims on behalf of the State, it is not an 7 impermissible “wholesale” PAGA waiver, and Colores’s claims may be split into “individual” 8 and “non-individual” or “representative” PAGA claims. The Court therefore concludes that Ray 9 Moles is entitled to enforce the Agreement to the extent that it mandates arbitration of Colores’s 10 individual PAGA claim. 11 As to Colores’s remaining, non-individual PAGA claim, the question remains whether 12 Colores’s claim should be dismissed or stayed. The Supreme Court in Viking River dismissed 13 such claims for lack of statutory standing after the plaintiff’s individual PAGA claim was 14 compelled to arbitration. 142 S. Ct. at 1925. District courts in California have taken different 15 approaches to the question, with some staying proceedings as to the non-individual PAGA 16 claims, others ordering dismissal per Viking River, see Dominguez v. Sonesta Intl. Hotels Corp., 17 22-CV-03027-JCS, ––– F.Supp.3d ––––, ––––, 2023 WL 25707, at *6–7 (N.D. Cal. Jan. 3, 18 2023) (discussing cases), and at least one court declining to follow Viking River’s standing 19 analysis on the grounds that it is contrary to existing California law. Shams, 2022 WL 3453068, 20 at *3. The Court finds the reasoning in Dominguez and Martinez-Gonzalez, as discussed in 21 Dhaliwal, persuasive. Dhaliwal v. Ace Hardware Corp., No. 222CV00446DADKJN, 2023 WL 22 2555471 (E.D. Cal. Mar. 17, 2023) (citing Dominguez, 2023 WL 25707, and Martinez-Gonzalez 23 v. Elkhorn Packing Co., LLC, No. 18-CV-05226-EMC, ––– F.Supp.3d ––––, ––––, 2022 WL 24 10585178 (N.D. Cal. Oct. 18, 2022).) 25 As these courts emphasized, Justice Sotomayor’s concurrence in Viking River recognizes 26 that the issue of statutory standing under PAGA is subject to clarification under state 27 law. Viking River, 142 S. Ct. at 1925. (“Thus, the Court reasons, based on available guidance 28 from California courts, that [Plaintiff] lacks ‘statutory standing’ under PAGA to litigate her 1 ‘nonindividual’ claims separately in state court. Of course, if this Court’s understanding of state 2 law is wrong, California courts, in an appropriate case, will have the last word.”). Because of 3 Justice Sotomayor’s qualification, the section of Viking River discussing standing obtained only 4 “four unqualified votes.” California Lab. & Workforce Dev. Agency, 2023 WL 2466236, at *3. 5 And the California Supreme Court has taken up the issue of statutory standing in the pending 6 case Adolph v. Uber Technologies, Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App., Apr. 7 11, 2022), review granted (Cal. July 20, 2022). 8 Accordingly, as several other courts have done, the Court will STAY Colores’s 9 representative PAGA claims—and all unresolved motions related to those claims—pending 10 further legal developments. See George v. Manheim Invs., Inc., 731 F. App’x 624, 627 (9th Cir. 11 2018) (permitting the California district court to stay the case pending the resolution of a 12 California Supreme Court decision that may inform the district court's reasoning on a threshold 13 issue). 14 ORDER 15 For the reasons stated above, the Court ORDERS: 16 1. Ray Moles’s Motion to Dismiss, (Doc. 15), is STAYED. 17 2. Ray Moles’s Motion to Compel Arbitration, (Doc. 21), is GRANTED IN PART 18 as to Colores’s non-PAGA claims and as to his individual PAGA claims. The 19 motion is DENIED to the extent that it seeks compelled arbitration of Colores’s 20 representative PAGA claims. 21 3. Colores’s non-PAGA claims, his first seven causes of action in the complaint, are 22 DISMISSED WITHOUT PREJUDICE. 23 4. Colores’s Motion to Dismiss Ray Moles’s counterclaim challenging PAGA’s 24 constitutionality, (Doc. 35), is STAYED. 25 5. Colores’s Motion to Strike Ray Moles’s reply in support of its motion to compel, 26 (Doc. 38), is DENIED as MOOT. 27 6. The California Attorney General’s Motion to Intervene, (Doc. 44), is STAYED. 28 7. The parties SHALL, within 30 days of the California Supreme Court’s decision 1 in Adolph, file a status with the Court detailing their positions on any pending 2 motions affected by Adolph, taking into consideration the California Supreme 3 Court’s decision. If necessary, the Court may order additional briefing at that 4 time. 5 6 IT IS SO ORDERED. 7 | Dated: _ March 30, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13