Judge: Cherol J. Nellon, Case: 21STCV17045, Date: 2024-03-26 Tentative Ruling

Case Number: 21STCV17045    Hearing Date: March 26, 2024    Dept: 14

Becerra v In N Out

Case Background

This is a PAGA claim for wage and hour violations.

Complaint

On May 6, 2021, Plaintiff Luis Becerra (“Becerra”) filed his Complaint for (1) PAGA Penalties and (2) Unfair Competition against Defendants In-N-Out Burger and DOES 1-100.

On June 22, 2021, Defendant filed its Answer.

On April 22, 2022, the parties stipulated that the second cause of action would be dismissed and brought in a pending arbitration proceeding instead.

On June 2, 2022, pursuant to the recusal of Judge William F. Fahey, the case was reassigned to this department.

On August 11, 2022, this court split Plaintiff’s PAGA claim into an individual and a representative claim, pursuant to Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. The individual PAGA claim was ordered to arbitration; the representative PAGA claim was stayed.

On August 22, 2023, this court confirmed an arbitration award issued in Defendant’s favor on various non-PAGA claims.

Intervenor

On November 22, 2023, Intervenor Plaintiff Elissa Bristow (“Bristow”) filed her Complaint-in-Intervention for PAGA Penalties against Defendants In-N-Out Burger and DOES 1-100.

On December 29, 2023, Defendant filed its Answer.

Trial Date

No trial date is currently set.

Instant Motion

            Defendant now moves this court for orders (1) compelling Plaintiff Bristow’s individual PAGA claims to arbitration and (2) staying prosecution of Plaintiff Bristow’s representative PAGA claims pending the outcome in arbitration.

Decision

            Defendant’s Request for Judicial Notice (“RJN”) is GRANTED as to Exhibit A and otherwise DENIED.

            Defendant’s motion is GRANTED. The prosecution of the Complaint-in-Intervention is STAYED pending the outcome in arbitration.

            The court sets a Status Conference for April 26, 2024, at 8:30 am. Counsel are to meet and confer and file a Joint Status Report on or before April 19, 2024.

Discussion

            Intervenor Plaintiff concedes the existence of an enforceable arbitration agreement, and that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 requires the subdivision of her PAGA claims into “individual” and “representative” components, with the individual components going to arbitration. The dispute appears to be about whether the court should stay prosecution of the representative component, which remains here in court.

            The parties dispute whether a stay is mandatory, or whether the decision rests in the discretion of the court. But even assuming that the matter is discretionary, the court would issue a stay in this case.

            It is sometimes the case that what a statute giveth, case law taketh away. For example, in the pre-Viking River environment when PAGA claims could not be sent to arbitration at all, courts had to decide what to do when the Labor Code claims which underlay PAGA causes of action did go to arbitration. Because PAGA is a “borrowing statute” – in the sense that creates no substantive liability itself but merely allows enforcement of other Labor Code sections – the outcome of the Labor Code claims would determine the outcome on the PAGA claims, and vice versa. Code of Civil Procedure § 1281.2(d) appeared to give courts discretion to proceed with the PAGA claims in that scenario. But case law, reading Section 1281.2(d) together with Code of Civil Procedure § 1281.4, required trial courts to stay PAGA claims pending the arbitration on the Labor Code claims.

            The situation here is similar. Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5^th 1104, 1123 suggests that the court has statutory “discretion” to stay or proceed with representative PAGA claims while their individual counterparts proceed in arbitration. However, that same decision also clearly suggests that the California Supreme Court expected trial courts to exercise their discretion in precisely the manner requested by Defendant: stay the representative claims, await arbitration, handle any motion to confirm or vacate the arbitrator’s decision, then proceed to the PAGA claims. Id. at 1123-24. The Court saw “no basis” for any concern about that method of proceeding. Id. at 1124. This trial court is obliged to follow the guidance of the California Supreme Court.

            This motion is the only item currently on-calendar in this case. Yet the Complaint of Plaintiff Becerra remains pending. Counsel need to discuss how to handle that portion of the case, especially now that the arbitration of Plaintiff Becerra’s individual claims appears to be over. And this court needs to have a future date to check on the initiation of arbitration on Plaintiff Bristow’s individual claims.

Conclusion

            Plaintiff Bristow concedes that there is an enforceable arbitration agreement, that her PAGA claims must be split into “individual” and “representative” components, and that the individual component must go to arbitration. In Adolph, supra, the California Supreme Court advised that prosecution of the representative component could and should be stayed pending the arbitration on the individual component. Therefore, the motion is GRANTED. The prosecution of the Complaint-in-Intervention is STAYED pending the outcome in arbitration.

            Additionally, the court needs (a) counsel to address the continuing pendency of Plaintiff Becerra’s complaint, and (b) to ensure that arbitration on Plaintiff Bristow’s individual claims is commenced. Therefore, the court sets a Status Conference for April 26, 2024, at 8:30 am. Counsel are to meet and confer and file a Joint Status Report on or before April 19, 2024.