Padilla v. Dewey Services CA2/4

Filed 12/15/20 Padilla v. Dewey Services CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
GUILLERMO PADILLA, B302920
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19STCV15617)
v.
DEWEY SERVICES, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court for Los Angeles
County, Elizabeth Allen White, Judge. Affirmed.
Hill, Farrer & Burrill, James A. Bowles and Elissa L. Gysi for
Defendant and Appellant.
KJT Law Group, Vache A. Thomassian, Caspar Jivalagian; Adams
Employment Counsel and Christopher A. Adams for Plaintiff and
Respondent.
Defendant Dewey Services, Inc. (Dewey) appeals from the trial
court’s order denying its motion to compel arbitration of a claim for civil
penalties for wage-and-hour law violations brought by plaintiff
Guillermo Padilla under the Labor Code Private Attorneys General Act
of 2004 (Lab. Code, § 2698 et seq., hereafter, PAGA). Dewey’s primary
contention on appeal—that it is error to find an employee cannot be
compelled to arbitrate PAGA claims based upon the employee’s
predispute agreement to arbitrate—is one that has been rejected by
several courts of appeal, including this one. Dewey argues that those
cases, all of which relied upon the reasoning of the Supreme Court in
Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348
(Iskanian) in reaching their conclusions, were wrongly decided because
the courts misread the holding in Iskanian, which holding Dewey
asserts was “reaffirmed and clarified” in the subsequent case of ZB,
N.A. v. Superior Court (2019) 8 Cal. 5th 175 (ZB).
We find the reasoning of the prior appellate court cases sound,
and that ZB has no effect on that reasoning. We also find that neither
of the remaining arguments Dewey raises—that the trial court’s ruling
conflicts with and is preempted by the Federal Arbitration Act (9 U.S.C.
§ 2 et seq., hereafter, FAA), and that the trial court erred by failing to
find that the parties’ arbitration agreement delegated the question of
arbitrability to the arbitrator—has merit. Accordingly, we affirm the
order denying the motion to compel arbitration.
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BACKGROUND
Padilla was employed by Dewey from June 2018 to November
2018. At the start of his employment, Padilla (like all employees of
Dewey) was required to sign agreements to arbitrate all disputes with
Dewey. As a result, Padilla was subject to Dewey’s written “Mutual
Arbitration Policy” (MAP) throughout his employment.
The MAP, which “require[s] mandatory, binding arbitration of
disputes,” states that it “applies to Company employees, regardless of
length of service or status, and covers all disputes relating to or arising
out of an employee’s employment with the Company or the termination
of that employment.” It provides examples of the types of disputes it
covers, and includes “claims by employees for . . . wage or overtime
claims or other claims under the Labor Code.”
In explaining what the obligation to arbitrate claims means, the
MAP states: “This mutual obligation to arbitrate claims means that
both you and the Company are bound to use the MAP as the only means
of resolving any employment-related disputes. This mutual agreement
to arbitrate claims also means that both you and the Company forego
any right either may have to a judicial forum or a jury trial on claims
relating in any way to your employment. The arbitration shall be a
traditional bilateral arbitration with you and the Company as the
parties unless otherwise specifically agreed to in writing.[1] Each party
waives the right to initiate or proceed on a class action basis or
1 The MAP subsequently explains that “[t]he parties in any . . .
arbitration will be limited to you and the Company, unless you and the
Company agree otherwise in writing.”
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participate in a class action in arbitration. No remedies that otherwise
would be available to you individually or to the Company in a court of
law, however, will be forfeited by virtue of this agreement to use and be
bound by the MAP.” Finally, the MAP provides that it is governed
solely by the FAA, and that the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (the
AAA rules) would govern the procedures used in the arbitration.
In May 2019, Padilla filed in the superior court a class action
complaint for damages and for enforcement under PAGA, alleging
violations of various wage-and-hour laws. At the initial status
conference, counsel for Padilla made an oral request to pursue only the
PAGA claims, which the trial court granted. Padilla subsequently filed
a first amended complaint alleging only a representative claim on
behalf of the State of California and other aggrieved employees under
PAGA, and seeking only civil penalties.
On September 30, 2019, Dewey filed a motion to compel
arbitration and to stay the action pending arbitration, making
essentially the same arguments it makes in this appeal. Padilla
opposed the motion, relying on the Supreme Court’s reasoning in
Iskanian that a claim for civil penalties under PAGA belongs to the
State of California, with the plaintiff acting as a proxy for the state.
(Iskanian, supra, 59 Cal.4th at p. 388.) As such, Padilla’s lawsuit
involved a dispute or claim between the state and Dewey, rather than
between Padilla and Dewey, and the state did not agree to arbitrate its
claim. In addition, Padilla argued that the court should decide the
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issue of arbitrability because the parties did not clearly and
unmistakably delegate that question to the arbitrator.
The trial court denied the motion, noting that several courts of
appeal have decided the issue and uniformly have held that “‘an
employee’s predispute agreement to arbitrate PAGA claims is not
enforceable without the state’s consent.’” (Quoting Correia v. NB Baker
Electric, Inc. (2019) 32 Cal. App. 5th 602, 621 (Correia), trial court’s
bolding omitted.) The court specifically rejected Dewey’s assertion that
Correia and the cases it relied upon no longer were applicable in light of
the recent Supreme Court case of ZB, supra, 8 Cal. 5th 175, concluding
that ZB did not change the result.
Dewey timely filed a notice of appeal from the trial court’s order
denying its motion to compel arbitration.
DISCUSSION
As noted, Dewey contends on appeal that the trial court erred by
finding that Padilla’s predispute agreement to arbitrate all disputes
with Dewey is unenforceable as to Padilla’s PAGA claim. It also
contends the court’s finding conflicts with and is preempted by the FAA,
and that the issue of arbitrability must be determined by the arbitrator
under the agreement. None of those contentions prevail.
A. The Reasoning of the Prior Appellate Cases Was, and Remains,
Sound
To understand the issues in this case we must begin our
discussion, as we did in Julian v. Glenair, Inc. (2017) 17 Cal. App. 5th
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853 (Julian)—one of the cases criticized by Dewey—by setting forth the
relevant elements of PAGA. We then address the Supreme Court’s
reasoning in Iskanian and how it leads to the holdings in Julian and
the other appellate court decisions Dewey challenges. Finally, we
address the effect, if any, of the Supreme Court’s decision in ZB on the
holding of those cases.
1. PAGA
“Under the Labor Code, the Labor and Workforce Development
Agency (LWDA) and its constituent departments and divisions are
authorized to collect civil penalties for specified labor law violations by
employers. [Citation.] To enhance the enforcement of the labor laws,
the Legislature enacted PAGA. [Citation.] PAGA permits aggrieved
employees to recover civil penalties that previously could be collected
only by the LWDA, as well as newly established ‘default’ penalties.
[Citations.]
“Under PAGA, ‘an “aggrieved employee” may bring a civil action
personally and on behalf of other current or former employees to recover
civil penalties for Labor Code violations. [Citation.] Of the civil
penalties recovered, 75 percent goes to the [LWDA], leaving the
remaining 25 percent for the “aggrieved employees.” [Citation.]’
[Citation.]” (Julian, supra, 17 Cal.App.5th at p. 865.)
Because the LWDA has “the initial right to prosecute and collect
civil penalties” under the Labor Code (Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal. App. 4th 365, 376, disapproved on
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another ground by ZB, supra, 8 Cal.5th at p. 195), an aggrieved
employee wishing to bring a PAGA claim must first give written notice
of the alleged violations to the LWDA (along with a filing fee) and to the
employer. (Lab. Code, § 2699.3, subd. (a)(1)(A).) The LWDA must then
notify the aggrieved employee and employer whether it intends to
investigate the alleged violation; if it does not intend to investigate, or if
the aggrieved employee does not receive any notification within 65 days,
or if the LWDA investigates and decides not to issue a citation, the
aggrieved employee may commence a civil action. (Lab. Code, § 2699.3,
subd. (a)(2)(A).) Within 10 days after commencement of the action, the
aggrieved employee must provide the LWDA with a file-stamped copy of
the complaint. (Lab. Code, § 2699, subd. (l)(1).) Any proposed
settlement of the action must be submitted to the LWDA and the trial
court, and the court must approve the settlement. (Lab. Code, § 2699,
subd. (l)(2).) The employee also must submit to the LWDA a copy of the
judgment, as well as any order that either provides for or denies an
award of civil penalties. (Lab. Code, § 2699, subd. (l)(3).)
“PAGA actions are ‘a substitute for an action brought by the
government itself,’ in which the aggrieved employee acts as ‘the proxy
or agent of the state’s labor law enforcement agencies.’ [Citation.] As
explained in Iskanian, ‘[a] PAGA representative action is therefore a
type of qui tam action. “Traditionally, the requirements for
enforcement by a citizen in a qui tam action have been (1) that the
statute exacts a penalty; (2) that part of the penalty be paid to the
informer; and (3) that, in some way, the informer be authorized to bring
suit to recover the penalty.” [Citation.] The PAGA conforms to these
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traditional criteria, except that a portion of the penalty goes not only to
the citizen bringing the suit but to all employees affected by the Labor
Code violation.’ [Citation.]” (Julian, supra, 17 Cal.App.5th at pp. 865-
866.) And, “[b]ecause an employee’s PAGA action ‘functions as a
substitute for an action brought by the government itself,’ under the
doctrine of collateral estoppel, a judgment unfavorable to the employee
binds the government, as well as all aggrieved nonparty employees
potentially entitled to assert a PAGA action.” (Id. at p. 867.)
2. Iskanian
In Iskanian, the plaintiff filed a complaint against his employer
alleging claims for Labor Code violations, including a PAGA claim. The
plaintiff had signed an agreement, subject to the FAA, providing that
all claims arising out of his employment were to be submitted to
arbitration, and specifically precluding representative claims. Based
upon that agreement, the trial court granted the employer’s petition to
compel arbitration, finding that the plaintiff was required to arbitrate
the PAGA claim, which the court concluded he could litigate only on
behalf of himself. (Iskanian, supra, 59 Cal.4th at pp. 360-362.) The
Supreme Court held that (1) “an arbitration agreement requiring an
employee as a condition of employment to give up the right to bring
representative PAGA actions in any forum is contrary to public policy”;
and (2) “the FAA does not preempt a state law that prohibits waiver of
PAGA representative actions in an employment contract.” (Id. at p.
360.)
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In reaching its first holding, the Supreme Court observed that
“the Legislature’s purpose in enacting the PAGA was to augment the
limited enforcement capability of the [LWDA] by empowering
employees to enforce the Labor Code as representatives of the [LWDA].
Thus, an agreement by employees to waive their right to bring a PAGA
action serves to disable one of the primary mechanisms for enforcing
the Labor Code. Because such an agreement has as its ‘object, . . .
indirectly, to exempt [the employer] from responsibility for [its] own . . .
violation of law,’ it is against public policy and may not be enforced.”
(Iskanian, supra, 59 Cal.4th at p. 383.)
In reaching its second holding, the Supreme Court pointed to the
focus of the FAA, which is “to ensure an efficient forum for the
resolution of private disputes.” (Iskanian, supra, 59 Cal.4th at p. 384.)
However, “a PAGA claim . . . is not a dispute between an employer and
an employee arising out of their contractual relationship. It is a dispute
between an employer and the state, which alleges directly or through its
agents—either the [LWDA] or aggrieved employees—that the employer
has violated the Labor Code. Through his PAGA claim, Iskanian is
seeking to recover civil penalties, 75 percent of which will go to the
state’s coffers. We emphasized in Arias [v. Superior Court (2009) 46
Cal. 4th 969 (Arias)] that ‘an action to recover civil penalties “is
fundamentally a law enforcement action designed to protect the public
and not to benefit private parties”’; that ‘[i]n a lawsuit brought under
the [PAGA], the employee plaintiff represents the same legal right and
interest as state labor law enforcement agencies’; and that ‘an aggrieved
employee’s action under the [PAGA] functions as a substitute for an
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action brought by the government itself.’ [Citing Arias, supra, 46
Cal.4th at p. 986.] The fact that any judgment in a PAGA action is
binding on the government confirms that the state is the real party in
interest.” (Iskanian, supra, 59 Cal.4th at pp. 386-387.) The court
concluded: “In sum, the FAA aims to promote arbitration of claims
belonging to the private parties to an arbitration agreement. It does
not aim to promote arbitration of claims belonging to a government
agency, and that is no less true when such a claim is brought by a
statutorily designated proxy for the agency as when the claim is
brought by the agency itself. . . . We conclude that California’s public
policy prohibiting waiver of PAGA claims, whose sole purpose is to
vindicate the [LWDA’s] interest in enforcing the Labor Code, does not
interfere with the FAA’s goal of promoting arbitration as a forum for
private dispute resolution.” (Iskanian, supra, 59 Cal.4th at pp. 388-
389.)
3. Prior Appellate Cases
After Iskanian was decided, several courts of appeal relied upon
the Supreme Court’s reasoning with regard to FAA preemption to
conclude that a predispute agreement between an employer and
employee to arbitrate PAGA claims is not enforceable without the
consent of the state. For example, in Tanguilig v. Bloomingdale’s, Inc.
(2016) 5 Cal. App. 5th 665 (Tanguilig), Division Five of the First
Appellate District relied upon the Supreme Court’s statements that
“[t]he government entity on whose behalf the plaintiff files [a PAGA]
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suit is always the real party in interest in the suit” (Iskanian, supra, 59
Cal.4th at p. 382), and that “‘every PAGA action, whether seeking
penalties for Labor Code violations as to only one aggrieved employee—
the plaintiff bringing the action—or as to other employees as well, is a
representative action on behalf of the state’” (id. at p. 387), to conclude
that “a PAGA plaintiff’s request for civil penalties . . . is not subject to
arbitration under a private arbitration agreement between the plaintiff
and his or her employer . . . because the real party in interest in a
PAGA suit, the state, has not agreed to arbitrate the claim.”
(Tanguilig, supra, 5 Cal.App.5th at p. 677; see also id. at p. 678
[“Because a PAGA plaintiff, whether suing solely on behalf of himself or
herself or also on behalf of other employees, acts as a proxy for the state
only with the state’s acquiescence . . . and seeks civil penalties largely
payable to the state via a judgment that will be binding on the state, a
PAGA claim cannot be ordered to arbitration without the state’s
consent”].)
Similarly, in Betancourt v. Prudential Overall Supply (2017) 9
Cal. App. 5th 439 (Betancourt), Division Two of the Fourth Appellate
District relied upon the Supreme Court’s statement that a PAGA claim
“is not a dispute between an employer and an employee arising out of
their contractual relationship[, i]t is a dispute between an employer and
the state” (Iskanian, supra, 59 Cal.4th at p. 386) to conclude that a
predispute agreement by an employee to arbitrate an employment
dispute does not apply to a PAGA claim brought on behalf of the state.
(Betancourt, supra, 9 Cal.App.5th at pp. 447-448.)
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We found the conclusions of those two appellate courts persuasive
in Julian, supra, 17 Cal. App. 5th 853. There, our focus was on
determining whether an agreement to arbitrate PAGA claims, entered
into after a dispute between two employees and their employer had
arisen but before the employees had satisfied the pre-filing
requirements under PAGA, was enforceable under Iskanian. After
conducting a thorough analysis of the Supreme Court’s reasoning, we
found that “[e]nforcing a waiver executed before the employee has
satisfied the statutory requirements would . . . impair PAGA’s
enforcement mechanism.” (Julian, supra, 17 Cal.App.5th at p. 870.)
We concluded: “[U]ntil the employee meets those requirements, the
state—through LWDA—retains control of the right underlying the
employee’s PAGA claim. For that reason, enforcing the arbitration
agreement would contravene the state’s control over that right.” (Id. at
pp. 870-871.) Thus, we held that an arbitration agreement entered into
by an employee as an individual before he or she meets the statutory
requirements and becomes a representative of the state is a predispute
agreement that does not subject a PAGA claim to arbitration. (Id. at p.
872.)
In all three of these cases, the arbitration agreements were
construed to waive representative claims (such as PAGA claims) in any
forum, although the agreement in Julian allowed arbitration of private
attorney general claims, but only to resolve the claim of the individual
employee. (Tanguilig, supra, 5 Cal.App.5th at p. 672, fn. 2; Betancourt,
supra, 9 Cal.App.5th at p. 443; Julian, supra, 17 Cal. App. 5th 861 & fn.
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2.) More recently, in Correia, supra, 32 Cal. App. 5th 602, Division One
of the Fourth Appellate District addressed the conclusions reached by
the courts in Tanguilig, Betancourt, and Julian in the context of an
arbitration agreement that is construed to require arbitration of
representative PAGA claims, i.e., an agreement that allows PAGA
claims in some forum. (Correia, supra, 32 Cal.App.5th at p. 621.)
The Correia court agreed with the analysis of the prior appellate
courts that “a PAGA arbitration requirement in a predispute
arbitration agreement is unenforceable based on Iskanian’s view that
the state is the real party in interest in a PAGA claim,” and held that
the analysis applied to the circumstances before it. (Correia, supra, 32
Cal.App.5th at p. 609.) The court examined decisions by federal courts
that had reached a different conclusion, but it found those decisions
“unpersuasive because the courts did not fully consider the implications
of the qui tam nature of a PAGA claim on the enforceability of an
employer-employee arbitration agreement.” (Ibid.; see also id. at pp.
623-624.)
4. Effect of ZB on Holdings of Prior Appellate Cases
Based upon the analyses of Tanguilig, Betancourt, Julian, and
Correia, the answer to Dewey’s first question on appeal—“Did the trial
court err in holding that claims brought by an employee under [PAGA]
cannot be compelled to arbitration based on the employee’s predispute
agreement to arbitrate”—clearly is “No.” Dewey argues, however, that
the courts in those cases (including this court) misapplied the holding of
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Iskanian, which Dewey contends the Supreme Court “clarified” in ZB
when it stated: “we held [in Iskanian] that a court may not enforce an
employee’s alleged predispute waiver of the right to bring a PAGA claim
in any forum.” (ZB, supra, 8 Cal.5th at p. 181.) Dewey asserts that
Iskanian does not bar arbitration of PAGA claims, but rather bars only
predispute waivers of the right to seek PAGA civil penalties in any
forum. It also points to several federal cases that have held that
Iskanian does not preclude arbitration of PAGA claims.
Dewey’s argument misses the point. We (in Julian), and the
courts in Tanguilig, Betancourt, and Correia, did not conclude that
arbitration of PAGA claims was barred under the holding of Iskanian.
Rather, based upon the Supreme Court’s reasoning in Iskanian as to
why the FAA does not apply to PAGA claims—particularly the court’s
statements that “the state is the real party in interest” in a PAGA
action (Iskanian, supra, 59 Cal.4th at p. 387) and that a PAGA claim “is
not a dispute between an employer and an employee arising out of their
contractual relationship[, but is instead] a dispute between an employer
and the state” (id. at p. 386)—we and the other appellate courts simply
held that a predispute agreement to arbitrate cannot be enforced with
respect to a PAGA claim without the state’s consent, given either
directly by the state or through its agent after that agent has been
authorized by the state to bring such a claim. The federal court
decisions Dewey cites do not persuade us that this holding is incorrect.
None of those cases addresses the fact (as we explained in Julian) that,
until an employee satisfies the statutory requirements under PAGA,
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“the state—through LWDA—retains control of the right underlying the
employee’s PAGA claim.” (Julian, supra, 17 Cal.App.5th at pp. 870-
871.) Thus, until the state authorizes the employee to bring a PAGA
claim as a representative of the state, the employee has no legal
capacity to agree to arbitrate that claim. (Id. at pp. 871-872
[“Ordinarily, when a person who may act in two legal capacities
executes an arbitration agreement in one of those capacities, the
agreement does not encompass claims the person is entitled to assert in
the other capacity. . . . [¶] . . . Prior to satisfying those requirements,
an employee enters into the [arbitration] agreement as an individual,
rather than as an agent or representative of the state”].)
Contrary to Dewey’s assertion, there is nothing in the Supreme
Court’s recent decision in ZB that affects our, or the other appellate
courts’, prior analyses. To be sure, the court in ZB stated, as Dewey
asserts, that it had held in Iskanian “that a court may not enforce an
employee’s alleged predispute waiver of the right to bring a PAGA claim
in any forum.” (ZB, supra, 8 Cal.5th at p. 181.) But that holding from
Iskanian was not the focus of the court’s opinion. Rather, the court
sought to determine whether a plaintiff may seek to recover underpaid
wages in a PAGA action. (See ibid. [“We granted review to decide
whether Iskanian controls, and the FAA has no preemptive force, where
an aggrieved employee seeks the ‘amount sufficient to recover
underpaid wages’ in a PAGA action. [¶] But to resolve this case we
must answer a more fundamental question: whether a plaintiff may
seek that amount in a PAGA action at all”].) The court simply did not
15
address the reasoning in Iskanian relied upon in Tanguilig, Betancourt,
Julian, and Correia.
In sum, we conclude the trial court did not err in relying upon
Correia to find that Padilla’s predispute agreement to arbitrate was not
enforceable as to his PAGA claim, and to deny Dewey’s motion to
compel arbitration.
B. Preemption by the FAA
Dewey’s contention that the FAA preempts any state law rule that
finds that predispute arbitration agreements are unenforceable as to
PAGA claims has been addressed and rejected by the Supreme Court in
Iskanian. As the court explained, “a PAGA claim lies outside the FAA’s
coverage because it is not a dispute between an employer and an
employee arising out of their contractual relationship. It is a dispute
between an employer and the state, which alleges directly or through its
agents—either the [LWDA] or aggrieved employees—that the employer
has violated the Labor Code.” (Iskanian, supra, 59 Cal.4th at pp. 386-
387.) Dewey’s contention has no merit.
C. Determination of Arbitrability
Dewey contends that under the arbitration agreement and the
AAA Rules, which are incorporated by reference into the agreement, the
determination of arbitrability of Padilla’s PAGA claim must be
determined by the arbitrator, and not by the trial court. Padilla argues
that the question whether a dispute is subject to arbitration is to be
16
determined by the court unless the parties “clearly and unmistakably”
delegate this determination to the arbitrator; he contends the
arbitration agreement in this case did not do so. (Citing Ajamian v.
CantorCO2e (2012) 203 Cal. App. 4th 771, 781-782, 790.) We need not
decide whether the arbitration agreement, with its incorporation of the
AAA rules, delegated the arbitrability determination to the arbitrator
because Padilla is not a party to the agreement in his capacity as agent
or proxy for the state.
As we explained in Julian, an employee who enters into an
arbitration agreement before satisfying the statutory requirements to
bring a PAGA claim “enters into the agreement as an individual, rather
than as an agent or representative of the state.” (Julian, supra, 17
Cal.App.5th at p. 872.) And, “when a person who may act in two legal
capacities executes an arbitration agreement in one of those capacities,
the agreement does not encompass claims the person is entitled to
assert in the other capacity.” (Id. at pp. 871-872.)
Since Padilla entered into the arbitration agreement in this case
before he was given the authority to act as an agent or representative of
the state to bring a PAGA claim, he was not a party to the agreement in
his capacity of agent of the state. As we explained in Benaroya v. Willis
(2018) 23 Cal. App. 5th 462, even where an arbitration agreement
unambiguously provides that the arbitrator is to determine
arbitrability, “California case law is clear that ‘an arbitrator has no
power to determine the rights and obligations of one who is not a party
to the arbitration agreement. [Citation.] The question of whether a
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nonsignatory is a party to an arbitration agreement is one for the trial
court in the first instance.’” (Id. at p. 469.)
Because Padilla was acting in his capacity as agent of the state in
bringing the PAGA claim, and he was not a party to the arbitration
agreement in that capacity, the trial court properly determined the
arbitrability of the PAGA claim.
DISPOSITION
The order denying Dewey’s motion to compel arbitration is
affirmed. Padilla shall recover his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.
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