Judge Holly J. Fujie, Case 21STCV16066 2022-10-04 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTIES: Defendants Amwest, Inc., Russell Kingsford, and Jeffer Agoncillo (collectively, “Moving Defendants”)

This action arises out of an employment relationship. On April 28, 2021, Plaintiff filed a complaint (the “Complaint”) alleging: (1) sexual harassment; (2) failure to prevent harassment; (3) retaliation; (4) wrongful constructive termination; (5) intentional infliction of emotional distress; and (6) a representative action for civil penalties for various Labor Code violations pursuant to the Private Attorney General Act (“PAGA”).

On November 29, 2021, the Court ruled on a motion to compel arbitration filed by Moving Defendants and ordered that Plaintiff’s non-PAGA claims be sent to binding arbitration on the basis that during her employment, Plaintiff signed a valid and binding arbitration agreement (the “Arbitration Agreement”). On March 21, 2022, the Court granted Moving Defendants’ unopposed motion to stay the PAGA proceeding pending the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 (“Viking River Cruises”).

On September 9, 2022, Moving Defendants filed a motion to compel arbitration of Plaintiff’s personal PAGA claims (the “Motion”) in light of the U.S. Supreme Court’s decision in Viking River Cruises, in which the Court held held that a plaintiff’s individual PAGA claims could be severed from their representative claims and ordered to arbitration. The Motion additionally requests that the Court dismiss Plaintiff’s representative PAGA claims.

The purpose of the Federal Arbitration Act (“FAA”) is to move the parties in an arbitrable dispute out of court and into arbitration as quickly and easily as possible. (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 23.) The FAA is consistent with the federal policy to ensure the enforceability, according to their terms, of private agreements to arbitrate. (Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 57.) Under California Code of Civil Procedure (“CCP”) section 1281, a written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract. (CCP § 1281.) California law, like federal law, favors enforcement of valid arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy unless grounds exist not to compel arbitration. (CCP § 1281.2.) Under California law, the burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 169.)

As an initial matter, Plaintiff does not dispute the validity of the Arbitration Agreement or argue that her individual claims should not be sent to arbitration pursuant to Viking River Cruises. Plaintiff argues, however, that the Court should not dismiss her representative claims.

In Viking River Cruises, the U.S. Supreme Court reasoned that once a plaintiff’s individual PAGA claims were sent to arbitration, the plaintiff loses standing to assert representative PAGA claims. (Viking River Cruises, supra, 142 S.Ct. at 1925.) California law, however, conveys PAGA standing on any person defined as an “aggrieved employee.” (Lab. Code § 2699, subd. (a).) An “aggrieved employee” is “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Lab. Code § 2699, subd. (c).) A plaintiff may have standing as an “aggrieved employee” even where they have no right to monetary recovery or any unredressed injury at all, and even where they have settled all individual claim” of any kind or those claims are substantively barred. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 82, 90-91; see also Zuniga v. Alexandria Care Center, LLC (2021) 67 Cal.App.5th 871, 883 (plaintiff retained standing as an aggrieved employee despite settlement of her individual claims).)

While the U.S. Supreme Court must decide questions of state law when necessary for the disposition of a case brought to it for decision when the highest court of the state has not answered them, its decisions do not finally settle the questions of state law involved. (See Meredith v. City of Winter Haven (1943) 320 U.S. 228, 237-38.)[1] The question of a plaintiff’s standing to pursue representative PAGA claims after their individual claims are ordered to arbitration in light of Viking River Cruises remains unsettled and will likely be resolved when the California Supreme Court issues a ruling in Adolph v. Uber Technologies, Case No. S27467 (“Adolph”).

In Adolph, the California Supreme Court will address the scope of the ruling in Viking River Cruises and consider whether an aggrieved employee who has been compelled to arbitrate claims under PAGA that are premised on Labor Code violations actually sustained by the aggrieved employee maintains statutory standing to pursue PAGA claims arising out of events involving other employees in court or in any other forum the parties agree is arbitrable.

The Court hereby exercises its discretion in the interest of judicial economy and STAYS the entire action pending the California Supreme Court’s forthcoming decision in Adolph. The Court sets a status conference on April 25, 2023 at 8:30 a.m. in this department. The parties are ordered to file a joint status report by March 29, 2023. Should the Adolph decision be issued before the status conference date, either party may request an earlier status conference by ex parte application.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] In her concurring opinion, Justice Sotomayor acknowledged the California Supreme Court’s authority to determine the issue of a Plaintiff’s standing to adjudicate severed PAGA representative claims in light of the Viking River Cruises holding. (See Viking River, supra, 142 S.Ct. at 1925 (conc. opn. of Sotomayor, J.) (“Of course, if this Court's understanding of state law is wrong, California courts, in an appropriate case, will have the last word.”).)