Rimler v. Postmates Inc. CA1/5

Filed 12/9/20 Rimler v. Postmates Inc. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
JACOB RIMLER et al.,
Plaintiffs and Respondents,
A156450
v.
POSTMATES INC., (San Francisco County
Super. Ct. No. CGC-18-567868)
Defendant and Appellant.
Postmates Inc. (Postmates) appeals the trial court’s order denying its
petition to compel arbitration of representative claims under the Private
Attorney General Act of 2004 (PAGA) (Lab. Code, § 2699 et seq.). Postmates
concedes our Supreme Court held in Iskanian v. CLS Transportation Los
Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) that PAGA waivers are
unenforceable, but argues subsequent United States Supreme Court cases
have abrogated Iskanian. We join the numerous California Court of Appeal
decisions that have uniformly rejected this argument and affirm the trial
court’s order.
BACKGROUND
Jacob Rimler and Giovanni Jones (Plaintiffs) worked as couriers for
Postmates. Plaintiffs accepted Postmates’ courier agreement, which includes
an arbitration agreement and a waiver of the “right to have any dispute or
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claim brought, heard or arbitrated as a representative action, or to
participate in any representative action, and an arbitrator shall not have any
authority to arbitrate a representative action.” Couriers may opt out of these
provisions by submitting an opt out form within 30 days of accepting the
courier agreement, but Plaintiffs did not do so.
Plaintiffs sued Postmates, seeking PAGA penalties for alleged Labor
Code violations. Postmates filed a petition to compel arbitration, which the
trial court denied. This appeal followed. (Civ. Proc. Code, § 1294, subd. (a).)
DISCUSSION1
PAGA “authorizes an employee to bring an action for civil penalties on
behalf of the state against his or her employer for Labor Code violations
committed against the employee and fellow employees, with most of the
proceeds of that litigation going to the state.” (Iskanian, supra, 59 Cal.4th at
p. 360.) Iskanian concluded that a predispute PAGA waiver “is contrary to
public policy and thus unenforceable under state law. [Citation.] The court
then determined this conclusion was not preempted by the FAA [Federal
Arbitration Act] because it found the FAA was intended to govern the
resolution of ‘private disputes, whereas a PAGA action is a dispute between
an employer and the state Agency.’ [Citation.] . . . The court stressed the
nature of a PAGA claim as ‘ “ ‘fundamentally a law enforcement action
designed to protect the public and not to benefit private parties’ ” ’ [citation]
and that ‘ “an aggrieved employee’s action under the [PAGA] functions as a
substitute for an action brought by the government itself” ’ [citation].”
(Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 616 (Correia).)
1Plaintiffs repeatedly cite unpublished Court of Appeal decisions, in violation
of California Rules of Court, rule 8.1115(a). We disregard these citations and
admonish counsel to comply with the Rules of Court in the future.
2
After Iskanian, the United States Supreme Court decided Epic Systems
Corp. v. Lewis (2018) 584 U.S. __ [138 S.Ct. 1612] (Epic). “Although most of
the Epic opinion concerned an analysis of the [National Labor Relations Act]
as it relates to the FAA, the court also strongly reiterated the settled
principles regarding the breadth of FAA preemption, and made clear that the
FAA requires courts ‘ “rigorously” to “enforce arbitration agreements
according to their terms, including terms that specify with whom the parties
choose to arbitrate their disputes and the rules under which that arbitration
will be conducted.” ’ ” (Correia, supra, 32 Cal.App.5th at p. 618.)
In Correia, as here, the employer argued Iskanian had been abrogated
by Epic. (Correia, supra, 32 Cal.App.5th at p. 619.) Correia began by noting
that, “[o]n federal questions, intermediate appellate courts in California must
follow the decisions of the California Supreme Court, unless the United
States Supreme Court has decided the same question differently.” (Ibid.)
After discussing Iskanian and Epic, Correia rejected the employer’s
argument: “Because the California Supreme Court found a PAGA claim
involved a dispute not governed by the FAA, and the waiver would have
precluded the PAGA action in any forum, it held its PAGA-waiver
unenforceability determination was not preempted. Epic did not reach the
issue regarding whether a governmental claim of this nature is governed by
the FAA, or consider the implications of a complete ban on a state law
enforcement action. Because Epic did not overrule Iskanian’s holding, we
remain bound by the California Supreme Court’s decision.” (Correia, supra,
32 Cal.App.5th at p. 620.)
At least four other Court of Appeal decisions have reached the same
conclusion. (Collie v. The Icee Co. (2020) 52 Cal.App.5th 477, 480 [“We . . .
join Correia . . . in holding that Epic . . . does not undermine the reasoning of
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Iskanian.”]; Zakaryan v. The Men’s Wearhouse, Inc. (2019) 33 Cal.App.5th
659, 671 [“Epic . . . did not overrule Iskanian”], disapproved on another
ground in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 196, fn. 8; Provost
v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 997 [“We reaffirm here our
analysis and decision in Correia that Epic did not overrule Iskanian.”]; Olson
v. Lyft, Inc. (2020) 56 Cal.App.5th 862, 865 [“we reject Lyft’s position based
on Correia”].) We do as well, for the reasons amply explained in Correia and
the other decisions.2
Postmates attempts to distinguish these decisions on the ground that
Plaintiffs could have opted out of the PAGA waiver. “ ‘Iskanian’s underlying
public policy rationale—that a PAGA waiver circumvents the Legislature’s
intent to empower employees to enforce the Labor Code as agency
representatives and harms the state’s interest in enforcing the Labor Code—
does not turn on how the employer and employee entered into the agreement,
or the mandatory or voluntary nature of the employee’s initial consent to the
agreement.’ ” (Williams v. Superior Court (2015) 237 Cal.App.4th 642, 648;
accord, Securitas Security Services USA, Inc. v. Superior Court (2015) 234
Cal.App.4th 1109, 1121–1123.) Accordingly, Plaintiffs’ ability to opt out does
not impact our analysis.
DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal.
2 Postmates points to two other United States Supreme Court cases, but
these cases, like Epic, do not reach the issue decided in Iskanian. (Henry
Schein, Inc. v. Archer and White Sales, Inc. (2019) 586 U.S. __ [139 S.Ct. 524]
[an agreement to delegate arbitrability to an arbitrator must be enforced];
Lamps Plus, Inc. v. Varela (2019) 587 U.S. __ [139 S.Ct. 1407] [ambiguity in
arbitration agreement does not create inference that parties agreed to
classwide arbitration].)
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SIMONS, Acting P.J.
We concur.
NEEDHAM, J.
REARDON, J.*
(A156450)
*Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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