Gutierrez v. Panera, LLC CA2/8 ( 2024 )


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  • Filed 10/21/24 Gutierrez v. Panera, LLC CA2/8
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION EIGHT
    AGUSTIN GUTIERREZ,                                                  B328496
    Plaintiff and Appellant,                                  Los Angeles County
    Super. Ct. No. 20TRCV00424
    v.
    PANERA, LLC, et al.,
    Defendants and Respondents.
    APPEAL from a judgment of the Superior Court of
    Los Angeles County, Gary Y. Tanaka, Judge. Reversed and
    remanded.
    Law Offices of Farrah Mirabel and Farrah Mirabel for
    Plaintiff and Appellant.
    Ogletree Deakins, Lyne A. Richardson and Adam C.
    Hackett for Defendants and Respondents.
    ____________________
    An employee consented to arbitrate his claims against his
    employer, with a proviso excluding his right to bring a claim
    under the Private Attorneys General Act (Labor Code § 2699 et
    seq.) (PAGA). The employee filed suit against his employer, and
    the parties then stipulated to arbitrate his non-PAGA claims and
    litigate his PAGA claims in court. After the Supreme Court’s
    decision in Viking River Cruises, Inc. v. Moriana (2022) 
    596 U.S. 639
     (Viking), the employer moved to compel the employee’s
    individual PAGA claims to arbitration. The trial court granted
    the motion. However, the proviso in the arbitration agreement
    still stated, with our emphasis, that “Employee may bring or
    participate in a suit seeking remedies under the Private
    Attorneys General Act (PAGA) seeking to enforce State rights
    under the California Labor Code.” We reverse.
    I
    Manna Development Group, LLC, Manna LA, LLC, and
    Panera LLC are business affiliates operating a Panera Bread
    restaurant in Westchester. We refer to these affiliates
    collectively as Panera.
    Panera employed Agustin Gutierrez from October 2018 to
    October 2019 at the Westchester restaurant. As part of his
    onboarding, Gutierrez signed a contract with Panera, agreeing to
    arbitrate their disputes. He waived his right to bring a class
    action against Panera. The agreement, however, included the
    proviso we have quoted.
    After Panera ended his employment, Gutierrez sued
    Panera on employment claims. He amended his complaint to add
    a PAGA cause of action.
    Panera and Gutierrez then stipulated to arbitrate
    Gutierrez’s claims (excluding the claims under PAGA) and to stay
    Gutierrez’s court case (which now consisted solely of Gutierrez’s
    claims under PAGA) until the conclusion of the arbitration. At
    2
    the time of the stipulation, California law did not permit courts to
    order PAGA claims to arbitration. (See Iskanian v. CLS
    Transportation Los Angeles, LLC (2014) 
    59 Cal.4th 348
    , 384
    (Iskanian).)
    After Panera and Gutierrez signed their stipulation, the
    Viking decision invalidated Iskanian. Gutierrez rebuffed
    Panera’s post-Viking request to stipulate to arbitrate his PAGA
    claims.
    Citing Viking, Panera filed a motion to compel Gutierrez’s
    PAGA claims to arbitration. In the alternative, Panera asked the
    court to order Gutierrez’s individual PAGA claim to arbitration
    and to dismiss his representative PAGA claim.
    The trial court granted Panera’s motion, finding that
    Viking required it to order “arbitration of [Gutierrez’s] individual
    PAGA claims and the dismissal of [Gutierrez’s] representative
    PAGA claims.” The court then ordered Gutierrez’s individual
    PAGA claims to arbitration, dismissed his representative PAGA
    claim, and entered judgment in favor of Panera.
    Only months after the court entered its judgment, our
    Supreme Court decided Adolph v. Uber Technologies, Inc. (2023)
    
    14 Cal.5th 1104
     (Adolph), holding that “a plaintiff who files a
    PAGA action with individual and non-individual claims does not
    lose standing to litigate the non-individual claims in court simply
    because the individual claims have been ordered to arbitration.”
    (Id. at p. 1128.)
    Gutierrez appealed.
    II
    3
    The trial court erred in ordering a claim to arbitration that
    the arbitration agreement excluded. Arbitration is a creature of
    contract. No contract, no arbitration. (Coinbase, Inc. v. Suski
    (2024) –– U.S. ––, 
    144 S.Ct. 1186
    , 1191 (Coinbase).)
    According to the contract, the Federal Arbitration Act
    governs this suit.
    We reject Panera’s argument that the order granting
    Panera’s motion to compel is not subject to our review. We may
    review such an order where it substantially affects the rights of a
    party. (Code Civ. Proc., §§ 906, 1294.2; Abramson v. Juniper
    Networks, Inc. (2004) 
    115 Cal.App.4th 638
    , 648-649.) Gutierrez
    appealed a final judgment that substantially affected his rights.
    Gutierrez correctly points out his agreement with Panera
    explicitly excluded PAGA claims. Paragraph 4.6 of the
    agreement, titled “Excluded Claims,” states: “Employee may
    bring or participate in a suit seeking remedies under [PAGA]
    seeking to enforce State rights under the California Labor Code.”
    Panera urges us to ignore this sentence. Its argument is
    that other claims go to arbitration. True. But there is an
    exception. The exception governs.
    Panera directs us to Paragraph 4.7 (titled “Included
    Claims”), which with our emphasis states “any provision of the
    California Labor Code” is subject to the arbitration provision.
    But Paragraph 4.7 also defines “Included Claims” as “all claims
    other than Excluded Claims listed above.” PAGA claims are
    Excluded Claims.
    Arbitration requires agreement. Gutierrez did not agree to
    arbitrate his PAGA claim.
    Panera also argues that the delegation clause in the
    arbitration agreement precludes any court from deciding
    4
    arbitrability, including the arbitrability of Gutierrez’s PAGA
    claims. Paragraph 3.4 of the agreement provides: “[t]he
    arbitrator, and not any federal, state, or local court, shall have
    the exclusive authority to resolve any dispute relating to . . .
    arbitrability . . . of this Agreement.”
    Courts should not assume that the parties agreed to
    arbitrate arbitrability unless it is unmistakably clear that they
    did so. (Coinbase, supra, 144 S.Ct. at p. 1193.) Unmistakable
    clarity is the preemptive federal test. (Ibid.) It is unmistakably
    clear that the parties did not agree to arbitrate PAGA claims.
    This contract language is not challenging.
    The court also erred by dismissing Gutierrez’s
    representative PAGA claims for lack of standing. In explaining
    its decision, the court quoted the following passage from Viking:
    “[w]hen an employee’s own dispute is pared away from a PAGA
    action, the employee is no different from a member of the general
    public, and PAGA does not allow such persons to maintain suit. .
    . . As a result, [a plaintiff] lacks statutory standing to continue to
    maintain her non-individual claims in court, and the correct
    course is to dismiss her remaining claims.” (Viking, supra, 596
    U.S. at p. 663.)
    California courts have declined to follow this non-
    precedential dictum. (See Adolph, supra, 14 Cal.5th at p. 1119;
    Piplack v. In-N-Out Burgers (2023) 
    88 Cal.App.5th 1281
    , 1290-93;
    Gregg v. Uber Technologies, Inc. (2023) 
    89 Cal.App.5th 786
    , 798-
    804; Seifu v. Lyft, Inc. (2023) 
    89 Cal.App.5th 1129
    , 1139-1141;
    Nickson v. Shemran, Inc. (2023) 
    90 Cal.App.5th 121
    , 133-134;
    Barrera v. Apple Amer. Group LLC (2023) 
    95 Cal.App.5th 63
    , 82-
    83, 89-95.)
    5
    Gutierrez had standing to bring his PAGA claims in court,
    and these claims are not subject to his arbitration agreement
    with Panera. (See Adolph, supra, 14 Cal.5th at p. 1116 [“To have
    standing to bring a PAGA action, a plaintiff must be an
    ‘aggrieved employee,’ which the statute defines as ‘any person
    who was employed by the alleged violator and against whom one
    or more alleged violations was committed.’ ([Lab. Code] § 2699,
    subd. (c).)”])
    The agreement between Panera and Gutierrez apparently
    anticipated the scenario that eventually unfolded, where
    Gutierrez filed a lawsuit with claims that are both included and
    excluded by the agreement. Paragraph 4.7 of the agreement
    provides: “[t]o the extent any party initiates a court action that
    contains both Excluded and Included Claims, and the parties do
    not voluntarily agree to submit the Excluded Claims to
    arbitration, the parties agree that the Included Claims shall be
    arbitrated prior to the litigation of the Excluded Claims.” Thus,
    as Gutierrez’s non-PAGA claims are currently pending in
    arbitration , the correct course of action is for the trial court to
    stay his PAGA claims until the arbitration concludes.
    DISPOSITION
    We reverse the order in its entirety and remand for
    proceedings consistent with this opinion. We award costs to
    Gutierrez.
    WILEY, J.
    We concur:
    GRIMES, Acting P.J.       VIRAMONTES, J.
    6
    

Document Info

Docket Number: B328496

Filed Date: 10/22/2024

Precedential Status: Non-Precedential

Modified Date: 10/22/2024