Herrera v. Doctors Medical Center of Modesto

Filed 8/5/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CHRISTINE HERRERA et al.,
F080963
Plaintiffs and Respondents,
(Super. Ct. No. CV-19-006126)
v.
DOCTORS MEDICAL CENTER OF OPINION
MODESTO, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M.
Beauchesne and Sonny S. Sandhu, Judges.*
Hill, Farrer & Burrill, Michael S. Turner and E. Sean McLoughlin for Defendant
and Appellant.
Cohelan Khoury & Singer, Michael D. Singer, Rosemary C. Khoury; United
Employees Law Group and Walter L. Haines for Plaintiffs and Respondents.
-ooOoo-
Defendant Doctors Medical Center of Modesto, Inc., appeals from an order
denying its petition to compel arbitration of Labor Code claims pursued by former
employees. The former employees contend their lawsuit is limited to recovering civil
penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et
* The matter was heard and decided in December 2019 by Judge Beauchesne. In
January 2020, Judge Sandu signed and filed the written order.
seq.)1 and their arbitration agreements cannot be enforced to compel arbitration of the
PAGA representative claims.
We again interpret the California Supreme Court’s decision in Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) to mean “that PAGA
representative claims for civil penalties are not subject to arbitration” under a predispute
arbitration agreement. (Esparza v KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1234
(Esparza).) The PAGA claims alleged in the former employees’ complaint are owned by
the state and are being pursued by the former employees as the state’s agent or proxy.
(ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 185 (ZB, N.A.).) The arbitration
agreements in question are not enforceable as to the PAGA claims because the state was
not a party to, and did not ratify, any of those agreements. Also, after the former
employees became representatives of the state, they did not agree to arbitrate the PAGA
claims. Consequently, under the rule of California law recognized in Esparza and many
other decisions of the Court of Appeal, the PAGA claims cannot be forced into
arbitration based on agreements made by the former employees before they became
authorized representatives of the state. The trial court correctly applied this rule of law.
Defendant’s argument that arbitration is compelled by the Federal Arbitration Act
(FAA; 9 U.S.C. § 1 et seq.) and federal preemption fails for similar reasons. In Iskanian,
our Supreme Court addressed the scope of the FAA and concluded that “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.” (Iskanian, supra, 59 Cal.4th at p.
386.) Based on this precedent, we conclude the FAA does not reach the PAGA claims
alleged in this case and, therefore, federal law does not preempt the rule of California law
stating PAGA claims are subject to arbitration only if the state, or the state’s authorized
representative, consents to arbitration.
1 Unlabeled statutory references are to the Labor Code.
2.
We therefore affirm the order denying the petition to compel arbitration.
FACTS
Doctors Medical Center of Modesto, Inc., (defendant) is a California corporation
that owns and operates Doctors Medical Center in Modesto, an acute care hospital.
Defendant is a subsidiary of Tenet Healthcare Corporation, which owns and operates
health care facilities in California, Texas, Louisiana and other states. Defendant is
engaged in interstate commerce because, among other things, it purchases equipment,
materials and supplies from out-of-state manufacturers and suppliers.
Plaintiff Christine Herrera was employed by defendant in 1986 and worked there
until 2008. In 2010, she returned and worked on defendant’s staff as a registered nurse
and a member of a union, the California Nurses Association. In 2011, Herrera became a
shift manager, which is a nonunion position. She remained in that position until her
resignation in June 2018.
Plaintiff Geri Rothstein worked for defendant from 1998 to 2006. In 2010, she
returned and worked on defendant’s staff as a registered nurse. Rothstein also was a
member of the California Nurses Association. In July 2014, Rothstein was promoted to
shift manager, a nonunion position. As a result, she stopped paying union dues and was
no longer a member of any union. Rothstein served as a shift manager until her
resignation in July 2018.
Collective Bargaining Agreement
Since 2006, registered nurses employed by defendant have been represented by the
California Nurses Association, which negotiated a series of collective bargaining
agreements (CBA) with defendant. As a result, defendant’s registered nurses were not
“at will” employees, but were protected by CBA provisions that limited defendant’s right
to discipline or discharge registered nurses.
In 2010, when plaintiffs returned to work for defendant, a three-year CBA
covering January 1, 2007, through December 31, 2010, was in place. Article 9 of that
3.
CBA included a mandatory grievance and arbitration procedure for any dispute involving
the interpretation, meaning or application of any of the CBA’s provisions. Paragraph E
of article 9 of the CBA allowed individual registered nurses to voluntarily agree to
arbitrate “any dispute not otherwise arbitrable under the” CBA using “the Tenet Fair
Treatment Process (‘FTP’).” It also stated: “No retaliation or adverse action may be
taken against anyone who exercises the option not to sign the FTP.” The grievance and
arbitration provisions were also included in article 9 of the CBA covering January 1,
2015, through December 31, 2018.
Individual Agreements
In 2010, when plaintiffs returned to work for defendant, they signed a one-page
“ACKNOWLEDGEMENT” stating they (1) had received information about how to
access an electronic copy of the defendant’s employee handbook; (2) had received a hard
copy of the FTP; (3) voluntarily agreed to use the FTP by submitting to final and binding
arbitration “any and all claims and disputes that are related in any way to my employment
or the termination of my employment”; (4) agreed the arbitration would be conducted
under the Federal Arbitration Act and the procedural rules of the American Arbitration
Association; and (5) acknowledged the agreement to arbitrate “may not be modified or
rescinded except in writing by both me and the Company.”
A document named “Open Door Policy and Fair Treatment Process” states “[t]he
FTP applies to all 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 employment. The only disputes or claims not covered by the FTP are
those listed in the ‘Exclusions and Restrictions’ section below.” It also advises
employees that the “mutual agreement to arbitrate claims means that both the employee
and the Company are bound to use the FTP process as the only means of resolving
employment-related disputes, and thereby agree to forego any right they each may have
had to a jury trial on issues covered by the FTP.” The document also describes the five
4.
steps that comprise the FTP. The description of the fifth step—final and binding
arbitration—addresses class, representative or group action, stating:
“The employee understands and agrees that to the extent permitted by law,
his or her claim will not be joined with any claim or dispute of another
employee in a class, collective, representative or group action. Arbitration
under the Fair Treatment Process is limited to individual disputes, claims or
controversies that a court of law would be authorized or have jurisdiction
over to grant relief.” (Italics added.)
Whether the PAGA representative claims alleged by plaintiffs are subject to this
limitation on arbitration was not addressed in the appellate briefing. We did not seek
supplemental briefing of the issue (Gov. Code, § 68061) because there are other grounds
for affirming the trial court’s denial of arbitration.
PAGA Notice
On May 17, 2019, counsel for plaintiffs mailed a written notice to the Labor and
Workforce Development Agency and defendant pursuant to section 2699.3. The notice
stated plaintiffs were former employees of defendant aggrieved by defendant’s Labor
Code violations. The notice alleged defendant “failed to pay all wages, including
premium wages for overtime hours worked; failed to provide legally compliant meal and
rest breaks; failed to adequately inform Claimants of their right to off-duty meal and rest
periods; failed to reimburse Claimants and other aggrieved employees for business
expenses incurred in the discharge of their duties for [defendant]; failed to provide
accurate itemized wage statements; and failed to pay all wages due during and upon
separation of employment.”
In response to the PAGA notice, defendant did not provide a notice of cure of the
alleged violations. The Labor and Workforce Development Agency did not provide a
notice of investigation within 65 days after the PAGA notice was mailed. Pursuant to
section 2699.3, subdivision (a)(2)(A), when the agency does not provide notice of its
intent to investigate within the 65-day period, “the aggrieved employee may commence a
5.
civil action pursuant to Section 2699.” Section 2699, subdivision (a) provides any civil
penalty under the Labor Code collectable by the Labor and Workforce Development
Agency “may, as an alternative, be recovered through a civil action brought by an
aggrieved employee on behalf of himself or herself and other current or former
employees pursuant to the procedures specified in Section 2699.3.”
PROCEEDINGS
In August 2019, plaintiffs filed a “REPRESENTATIVE ACTION COMPLAINT”
against defendant seeking civil penalties under PAGA for violations of Labor Code
provisions governing wages, meal periods, rest periods, reimbursement of business
expenses, and accurate wage statements. In October 2019, venue was transferred from
Orange County to Stanislaus County.
In November 2019, defendant filed a petition to compel arbitration and stay the
lawsuit. The petition was based on the arbitration provisions in the CBA and the one-
page “ACKNOWLEDGMENT” signed by each plaintiff. Plaintiffs opposed the petition
and submitted supporting declarations. Defendant filed a reply and submitted evidentiary
objections to the declaration of plaintiffs’ counsel.
In December 2019, Judge Beauchesne heard the petition to compel. At the
hearing, defense counsel described the court’s tentative ruling as beginning with the
court’s determination that California law prevented the court from enforcing a predispute
arbitration agreement when the action asserted PAGA claims. After counsel presented
their arguments and the matter was submitted, Judge Beauchesne confirmed his tentative
ruling in its entirety. In January 2020, Judge Sandu signed and filed the written order
prepared by plaintiff’s counsel. Defendant timely appealed.
Nine days after defendant filed its notice of appeal, plaintiffs moved for calendar
preference and an expedited briefing schedule pursuant to Code of Civil Procedure
section 1291.2 and California Rules of Court, rule 8.240. In April 2020, this court
granted calendar preference without an expedited briefing schedule. Subsequently, the
6.
parties stipulated to extensions of time to file the appellant’s opening brief, the
respondents’ brief, and the appellant’s reply brief. In April 2021, the case was fully
briefed.
DISCUSSION
I. FEDERAL LABOR LAW PREEMPTION
Defendant contends section 301 of the Labor Management Relations Act of 1947
(LMRA; 29 U.S.C. § 185) preempts the PAGA claims premised on a Labor Code
violation allegedly suffered by CBA-covered employees and involving the interpretation
or application of any of the CBA’s provisions. Defendant asserts the trial court failed to
discuss the CBA or section 301 of the LMRA and plainly failed to enforce the
collectively bargained obligation to grieve and arbitrate certain disputes under article 9 of
the CBA. During oral argument, defense counsel asserted the California appellate courts
have not addressed the preemption of PAGA claims by the LMRA and urged this court to
follow federal cases addressing preemption by the LMRA. (See Estrada v. Kaiser
Foundation Hospitals (9th Cir. 2017) 678 Fed.Appx. 494, 497 [claims for violations of
§ 222 and § 226 required court to interpret the CBA and, therefore, were preempted by
LMRA § 301]; Bradford v. Professional Technical Security Services Inc. (Protech)
(N.D.Cal., May 27, 2020, No. 20-CV-02242-WHO) 2020 U.S. Dist. LEXIS 92535[PAGA claim for violating § 204’s timely payment of wages requirement preempted by
the LMRA because the CBA provided for payment arrangements different from § 204’s
default requirements; PAGA claim for violations of §§ 226.7 and 512, subd. (a) were not
preempted and were remanded to state court].)
Plaintiffs assert that from 2014 until they resigned, they worked as shift managers
and not staff registered nurses covered by the CBA. Based on these factual assertions,
plaintiffs contend they were not subject to any CBA during the liability period at issue in
this case and, therefore, the LMRA does not preempt the PAGA claims. They also
7.
contend defendant’s conclusory argument fails to demonstrate the PAGA claims require
an interpretation of the CBA.
Under well-established principles of California’s constitutional doctrine of
reversible error, an order of the lower court is presumed correct—that is, all intendments
and presumptions are indulged to support it on matters as to which the record is silent—
and the appellant must affirmatively demonstrate prejudicial error. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) Appellants fail to carry the burden of affirmatively
demonstrating error if they, among other things, do not provide an adequate record on
appeal or do not comply with certain briefing requirements in California Rules of Court,
rule 8.204.
First, the appellants’ appendix does not include a copy of the trial court’s tentative
ruling. That ruling is significant because, at the end of the December 17, 2019, hearing,
Judge Beauchesne stated: “The Court confirms its tentative ruling initially issued in its
entirety.” Lacking a copy of the tentative ruling, we cannot determine the accuracy of
defendant’s contention that the “court failed to discuss the CBA or section 301 of the
LMRA.” “Failure to provide an adequate record on an issue requires that the issue be
resolved against [the appellant].” (Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502; see Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
Consequently, to the extent defendant contends the trial court erred in failing to consider
or explicitly discuss defendant’s theory of preemption by the LMRA, the lack of an
adequate record compels us to conclude appellant failed to carry his burden of
affirmatively demonstrating such an error occurred.
Second, assuming the trial court did not explicitly discuss the CBA and
preemption by the LMRA, the applicable principles of appellate practice would require
that we presume the court impliedly found the CBA did not apply to the claims pursued
in this lawsuit and, thus, concluded the LMRA did not preempt the PAGA claims.
(Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970 [under
8.
doctrine of implied findings, appellate court presumes trial court made all necessary
findings supported by substantial evidence].) This implied finding of fact is supported by
substantial evidence—namely, the declarations submitted by plaintiffs. Those
declarations stated that Hererra and Rothstein became shift managers in 2011 and July
2014, respectively, and shift managers are nonunion employees. Therefore, sufficient
evidence supports the finding that plaintiffs were not covered by the CBA or its grievance
procedures when the wrongs alleged in this lawsuit occurred. Defendant’s appellate
briefing made no attempt to address this implied finding and presented no analysis
affirmatively demonstrating the complaint seeks to recover civil penalties for violations
of the Labor Code occurring before July 2014.
Third, California Rules of Court, rule 8.204(a)(1)(B), provides that a brief must
“[s]tate each point under a separate heading or subheading summarizing the point, and
support each point by argument and, if possible, by citation of authority.” “Failure to
provide proper headings forfeits issues that may be discussed in the brief but are not
clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179;
see State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 835–836
[appellants forfeited challenge to trial court’s ruling on a particular issue by failing to
address it in their opening brief]; Richard v. Richard (1954) 123 Cal.App.2d 900, 902–
903.) Here, the headings in the argument section of the appellant’s opening brief did not
raise preemption by the LMRA. The heading in the appellant’s reply brief stating LMRA
section 301 preempts PAGA claims does not remedy the opening brief’s omission. “It is
elementary that points raised for the first time in a reply brief are not considered by the
court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.)
Based on the multiple failures of defendant to affirmatively demonstrate the trial
court erred in impliedly rejecting defendant’s arguments about preemption under the
LMRA, we conclude those arguments provide no ground for reversing the order denying
defendant’s petition to compel arbitration.
9.
II. ARBITRATION OF PAGA CLAIMS
To compel arbitration of the PAGA representative claims pursuant to the
individual acknowledgements signed by plaintiffs in 2010, two requirements must be
met. First, defendant must show the acknowledgements’ arbitration provisions
encompass the PAGA claims because a court cannot compel arbitration of a dispute that
falls outside the scope of the parties’ contract to arbitrate. Second, defendant must
establish the arbitration agreements are enforceable as to the PAGA claims despite the
fact the agreements were not signed or otherwise adopted on behalf of the state.
The first requirement is not addressed in detail because we assume without
deciding that the PAGA representative claims alleged by plaintiffs are covered by the
agreement to use defendant’s FTP and “submit to final and binding arbitration … any and
all claims and disputes that are related in any way to my employment.” (See Dream
Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 553, fn. 1 [arbitration clause
covering any claim arising out of or relating to the contract or its breach is very broad].)
Based on this assumption, we need not decide whether the provision stating the FTP “is
limited to individual disputes, claims or controversies” (italics added) excludes the
PAGA representative claims from the broad arbitration clause.
The requirement that an employee’s agreement to arbitrate PAGA representative
claims be enforceable raises issues about how Iskanian, supra, 59 Cal.4th 348, should be
interpreted. In that case, our Supreme Court concluded “that 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.” (Iskanian,
supra, 59 Cal.4th at p. 360, italics added.) We interpreted this and other statements in
Iskanian to mean “that PAGA representative claims for civil penalties are not subject to
arbitration.” (Esparza, supra, 13 Cal.App.5th at p. 1234.) In Esparza, the only
arbitration agreement between the plaintiff employee and the defendant employer was
contained in an employment application completed by the plaintiff. (Id. at p. 1235.)
10.
Based on when the arbitration agreement was made and the arguments presented in
Esparza, our legal conclusion “that PAGA representative claims for civil penalties are
not subject to arbitration” is necessarily limited to arbitration pursuant to a predispute
arbitration agreement. (Esparza, supra, 13 Cal.App.5th at p. 1234.) We applied that
legal conclusion in affirming the order denying the motion to compel arbitration “insofar
as it denies arbitration of the PAGA representative claims seeking civil penalties that are
paid, in whole or in part, to the Labor and Workforce Development Agency.” (Id. at p.
1247.) In short, the arbitration agreement was not enforceable as to the PAGA claims.
Defendant adopts an interpretation of Iskanian different from the interpretation
adopted in Esparza, contending Iskanian requires arbitration of PAGA claims and only
prohibits enforcement of PAGA waivers. Defendant also criticizes various Court of
Appeal decisions that, like Esparza, conclude a predispute arbitration agreement cannot
be relied upon to compel arbitration of a PAGA representative claim. Those decisions
did not cite Esparza and, therefore, can be interpreted as independently determining
PAGA claims are not subject to arbitration under predispute arbitration agreements.
In Contreras v. Superior Court (2021) 61 Cal.App.5th 461, Division Five of the
Second District stated: “After Iskanian, several appellate courts have held that an
individual PAGA plaintiff may not be required to arbitrate his or her PAGA claim. ‘[A]n
employer cannot rely on an employee’s predispute arbitration agreement to compel
arbitration of a PAGA claim.’ ” (Id. at p. 472.) In Correia v. NB Baker Electric, Inc.
(2019) 32 Cal.App.5th 602, Division One of the Fourth District summarized the rationale
for this conclusion: “Without the state’s consent, a predispute agreement between an
employee and an employer cannot be the basis for compelling arbitration of a
representative PAGA claim because the state is the owner of the claim and the real party
in interest, and the state was not a party to the arbitration agreement.” (Id. at p. 622.)
In ZB, N.A., supra, 8 Cal.5th 175, the Supreme Court mentioned Esparza, but it
was not among the Court of Appeal decisions explicitly disapproved. (ZB, N.A., supra, at
11.
pp. 188, 196, fn. 8.) Based on the lack of disapproval and the many other Court of
Appeal decisions reaching the same conclusion as Esparza,2 we again conclude a former
employee who is authorized to pursue PAGA representative claims cannot be compelled
to arbitrate those claims pursuant to a predispute arbitration agreement.
Here, the Labor and Workforce Development Agency did not consent to
arbitration. Also, plaintiffs did not consent to arbitration after they became authorized to
pursue the PAGA claims.3 Therefore, the arbitration agreements signed by plaintiffs in
2010 cannot be enforced as to the PAGA claims asserted in the complaint.
III. FAA PREEMPTION
Defendant contends FAA preemption requires the reversal of the trial court with
directions to issue an order compelling arbitration. We disagree.
In Iskanian, our Supreme Court concluded “the FAA does not preempt a state law
that prohibits waiver of PAGA representative actions in an employment contract.”
(Iskanian, supra, 59 Cal.4th at p. 360.) The court explained its determination by stating:
2 Winns v. Postmates Inc. (July 20, 2021, A155717) __ Cal.App.5th __ [2021
Cal.App. LEXIS 590] [First District, Division 3]; Rosales v. Uber Technologies, Inc.
(2021) 63 Cal.App.5th 937, petn. for review pending, petn. filed June 8, 2021, time for
grant or denial of review extended to Sept. 3, 2021, S269214 [Second District, Division
8]; Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 992, review den. Jan. 20,
2021, S265736 [Fourth District, Division 1] (Provost); Collie v. The Icee Co. (2020) 52
Cal.App.5th 477, 481, review den. Nov. 10, 2020, S264524 [Fourth District, Division 2];
Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 869-872, review den. Feb. 14, 2018,
S246352 [Second District, Division 4]; Betancourt v. Prudential Overall Supply (2017) 9
Cal.App.5th 439, 447-448, review den. May 24, 2017, S241247 [Fourth District, Division
2]; Tanguilig v. Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 678, review den. Mar. 1,
2017, S239170 [First District, Division 5].
3 Based on the theory that the former “employee acts as ‘ “the proxy or agent of the
state’s labor law enforcement agencies,” ’ (ZB, N.A., supra, 8 Cal.5th at p. 185) an
agreement to arbitrate the PAGA claims would not be enforceable unless it was made
after the former employee became a PAGA authorized aggrieved employee (i.e., an agent
of the state). (Id. at p. 185.)
12.
“[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 [Labor and
Workforce Development] Agency or aggrieved employees—that the
employer has violated the Labor Code.” (Id. at pp. 386–387.)
We conclude our Supreme Court’s analysis of preemption under the FAA remains
good law. (See Contreras, supra, 61 Cal.App.5th at p. 471; Provost, supra, 55
Cal.App.5th at p. 997 [Epic Systems Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612,
200 L.Ed.2d 889] did not implicitly overrule Iskanian].) Furthermore, we conclude our
Supreme Court’s analysis applies with equal force to the principle of state law that a
former employee who is authorized to pursue PAGA representative claims cannot be
compelled to arbitrate the PAGA claims based on a predispute arbitration agreement.
Consequently, federal preemption does not compel arbitration in this case because
plaintiff’s PAGA claims fall outside the FAA’s coverage.
DISPOSITION
The order denying the petition to compel arbitration judgment is affirmed.
Plaintiffs shall recover their costs on appeal.
FRANSON, Acting P.J.
WE CONCUR:
PEÑA, J.
DE SANTOS, J.
13.