Judge Douglas W. Stern, Case Number: 23STLC00244, Date: 2023-11-29 Tentative Ruling

Marcus Witt,

Plaintiff,

Postmates Inc.,

Defendant.

Case No.: 23STLC00244

ORDER ON ORDER TO SHOW CAUSE RE PROPRIETY OF SELF-REPRESENTED PLAINTIFF ASSERTING A PAGA CLAIM

Hearing Date: Nov. 29, 2023

Before the Court is the Court’s Order to Show Cause Re: Why the Complaint Should Not Be Stricken Asserting a Self Representative Claim Under PAGA. This action was filed by non- attorney Plaintiff Marcus Witt as a pro per.

This action was initiated by Plaintiff Marcus Witt against Defendant Postmates Inc. on January 12, 2023 as a limited jurisdiction case assigned to Judge Mark E. Windham in the Spring Street Courthouse Dept. 26. It is styled as a “Complaint for Civil Penalties under the Private Attorney General Act of 2004 (“PAGA”).” A First Amended Complaint was filed January 13, 2023. It alleged the same PAGA claim. It contained a single cause of action titled “Penalties Pursuant to Labor Code Private Attorneys Gen. Act of 2004; Violation of Cal. Lab. Code §§2698, et seq., 558.”

“22. Postmates couriers are entitled to penalties for Postmates’s violations of Cal. Lab. Code§ 2802, § 226(a), § 226.8 and§§ 1194, 1197, 1198, 510, and 554 as set forth by Cal. Lab. Code§ 2699(f) and§ 558. Plaintiff seeks civil penalties pursuant to PAGA for: (1) the willful misclassification of delivery workers as independent contractors in violation of Cal. Lab. Code § 226.8; (2) failure to reimburse courier employees for all necessary expenditures incurred in performing their duties, including but not limited to owning or leasing and maintaining their vehicles, fuel, phones, and data, in violation of Cal. Lab. Code § 2802; (3) failure to assure that all couriers received at least the applicable minimum wage for all hours worked in violation of Cal. Lab. Code§§ 1194, 1197; and (4) failure to assure that all couriers received the appropriate overtime premium for all overtime hours worked beyond forty per week or eight hours per day in violation of Cal. Lab. Code §§ 1194, 1198, 510, and 554.” (FAC ¶ 22.)

On June 30, 2023 Defendant Postmates, Inc. filed a “Motion to Compel Arbitration of Plaintiffs’ Individual PAGA Claim and to Dismiss the Non-Individual PAGA Claims.” When the matter was heard on July 20, 2023, Judge Windham ordered the Motion off calendar and reclassified the action as a civil unlimited jurisdiction case.

The case was transferred to this civil unlimited jurisdiction Court on July 26, 2023. On July 31, 2023 this Court set the matter for a Case Management Conference on August 31, 2023.

There were no appearances on August 31, 2023 and the Court continued the Case Management Conference to October 11, 2023. In the Minute Order of August 31, 2023, the Court also set an “Order to Show Cause Re: Propriety or Legality of a Self Represented Non-Attorney Alleging a PAGA Claim.” The Court indicated that it desired some briefing from the parties as to the propriety of that action. The Parties were served a copy of the Minute Order on August 31, 2023.

On October 11, 2023 the Court conducted its Case Management Conference and the Order to Show Cause. Plaintiff did not participate as he was experiencing technical difficulties logging into LACourtConnect, and the hearing was continued.

“Order to Show Cause Re: Why the Complaint Should Not Be Stricken Asserting a Self Representative Claim Under PAGA is scheduled for 11/29/2023 at 08:30 AM in Department 68 at Stanley Mosk Courthouse.

Plaintiff is to file a written response to the Order to Show Cause no later than 11-8-2023.

Defendant’s opposition is due no later than 11-15-2023. Plaintiff’s reply is due no later than 11-22-2023.

The Court expressly finds that defendants participation in the briefing for the Order to Show Cause does not constitute a waiver of right to compel arbitration and delaying filing until the court has ruled shall not be grounds for [not] compelling arbitration.

“Plantiff [sic] does not purport to represent any claims against the defendant beyond his own. Plantiff [sic] is not purporting to represent any other aggrieved employees or their alleged claims against the defendant. Plantiff [sic] filed documentation with the defendant opting-out of the existing arbitration agreement and is within his legal right to pursue action through the courts. Plantiff [sic] has documentation proving the filing and receipt of the opt-out form.

The defendants motion to request arbitration is invalid. In addition, it has previous [sic] been ruled that PAGA permits a plantiff [sic] to maintain non-individual PAGA claims if they also maintain an individual claim in the same action. The most recent ruling on the matter stated that where a plantiff [sic] has filed a PAGA action comprised of individual and non-individual claims, an order compelling arbirtation [sic] of individual claims does not strip the plaintiff of standing to litigate non-individual claims in court.”

Defendant filed its Reply to Plaintiff’s Response on November 15, 2023. Defendant noted the inconsistent statements made by Plaintiff that he disavows that he is asserting any claims for any other employees. He then notes that arbitration can be compelled with respect to the individual claims as distinct form representative claims of other employees.

On November 21, 2023 Plaintiff filed a Request for Extension claiming he needs more time to research the matter.

Defendant directs this Court to the decision in Ibrahim v. Morgan Southern Inc. (C.D. Cal) No. 18-4514-DMG) 2018 WL 5095120 which found that self represented plaintiffs may not bring claims under PAGA. This conclusion flows from some well-established principles.

First, in a PAGA action the Plaintiff sues as a proxy or agent of the state’s labor law enforcement agency. The Plaintiff represents the same legal right and interest as the State agency: recovery of civil penalties that the agency would have assessed and collected. (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, a judgment under the Act binds both the employee and the State of California. Hence, the self-represented plaintiff is not asserting his own claim but instead is asserting the State’s claim.

Second, since Plaintiff is not a licensed attorney, he may not represent the State of California. A self represented non-attorney can only represent himself with respect to his own claims. (Baba v. Board of Supervisors (2004) 124 Cal.App.4^th 504, 522-523.)

Third, to the extent that Plaintiff is purporting to recover based upon the claims related to other employees, to the extent that they may be claimed to belong to those individuals, Plaintiff may not represent those other employees. (Plaintiff is now [almost] clear that he is not seeking to recover penalties based on the rights of any other employees.)

(See also, Stone v. Kim (Nov. 20, 2023) B324466 (Not published and not citable and not relied upon by this Court. It holds:

“Christopher Stone, a nonattorney, brought pro. per. Private Attorneys General Act claims (Lab. Code, § 2698 et seq.) (the Act, also sometimes called PAGA) against his former employer, Charles Kim. The trial court sustained a demurrer, dismissed the case, and awarded costs in Kim’s favor. We affirm. A party bringing claims under the Act represents a state agency and nonattorneys cannot represent other entities in court.” (Bold Added.))

Because Plaintiff as a self-represented litigant may not represent others or the State of California, the court shall order that:

1. Plaintiff shall have 45 days from the date of service of notice of this Order in which to substitute a licensed attorney as counsel for Plaintiff in this action.

2. If Plaintiff choses not to obtain a licensed attorney, he may within that 45 day period file a Second Amended Complaint to plead claims that he may assert on his own behalf as a self represented litigant.

3. In the event that Plaintiff shall fail to substitute a licensed attorney within the 45 day period and shall not have filed a Second Amended Complaint as authorized in paragraph 2 above, then upon ex parte application by Defendant the First Amended Complaint may be stricken, and in that event, the Court shall allow the Plaintiff the opportunity to plead claims that he may assert on his own behalf as a self represented litigant. Such Second Amended Complaint shall be filed within 45 days of service of notice of the striking of the First Amended Complaint.

4. This Order is without prejudice to the Defendant filing its Motion to Compel Arbitration. The Court deems the delay in re-filing the motion to be justified by the unsettled issue of the claims, if any, that may be asserted by Plaintiff and the present inability to determine if the claims that may be asserted are subject to an arbitration agreement.