Judge: Kenneth J. Medel, Case: 37-2022-00042595-CU-OE-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2022-00042595-CU-OE-CTL GARCIA VS THE BRIGANTINE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 03/15/2023

The Brigatine, Inc.'s Motion to Compel Arbitration is DENIED.

Plaintiff digitally signed an Arbitration Agreement on or about October 16, 2020, through Defendant's online platform at the time of hire. (Baumann Decl. ¶ 7, Ex. A.) Plaintiff does not dispute the Arbitration Agreement exists. Nor does he challenge the arbitration based upon unconscionability.

Plaintiff argues that his individual PAGA claim cannot be compelled to arbitration because the Arbitration Agreement excluded representative claims. Paragraph 5 of the Arbitration Agreement states: 'Under no circumstances shall this Agreement be construed to allow arbitration on a class, collective, representative or other similar basis.' (Baumann Declaration at ¶ 7, Ex. A at ¶ 5.) Plaintiff argues that this provision means there can be no arbitration of PAGA claims at all – they are representative claims.

In Viking River, the United States Supreme Court held that a representative PAGA action consists of both individual and non-individual PAGA claims, and concluded that the FAA preempted California's rule that PAGA actions cannot be divided into individual and non-individual claims.

Here, however, the holding in Viking River is inapplicable because the Parties agreed that '[under] no circumstances shall this Agreement be construed to allow arbitration on a...representative or other similar basis.' (¶6 of Arbitration Agreement.) While a PAGA action is now split between individual and non-individual claims under Viking River, every PAGA action is still brought on a 'representative basis' and thus expressly excluded from the Parties' arbitration agreement. Viking River did not change the bedrock principle that the scope of arbitration is a matter of agreement between the parties and that a party can only be compelled on claims that it has agreed to arbitrate.

Based on the agreement, there was never an agreement to arbitrate Plaintiff's representative PAGA claims––be that individual or non-individual.

In Repy, Brigatine argues that the term 'representative' in the context of the agreement refers to individual representing claims predicated on violations sustained by others. 'The clear intent of this sentence is that Plaintiff cannot pursue claims on behalf of himself plus others, such as typically done in class, collective, and representative actions. This intent is made even more clear when read in context of the full Arbitration Agreement – and the class action waiver found in paragraph 3 in particular – which states: This binding arbitration Agreement shall not be construed to allow or permit the consolidation or joinder of other claims or controversies involving any other employees or parties, or permit such claims or controversies to proceed as a class or collective action. . . . By signing this agreement, I am agreeing to waive any substantive or procedural rights that I may have to bring or participate in an action brought on a class or collective basis.' (Id. at ¶ 3, Ex. A at ¶ 3.) Therefore, as used in the Arbitration Agreement, the representative language is intended to prevent class and collective type actions.' According to Brigatine, Plaintiff's individual PAGA claim must be compelled to arbitration just as in Viking River. (See Viking River Cruises, Inc. v. Moriana, supra, 142 S. Ct. 1906 [Holding plaintiff's individual PAGA claim should be compelled to arbitration despite plaintiff signing an arbitration agreement with a Calendar No.: Event ID:  TENTATIVE RULINGS

2948170  55 CASE NUMBER: CASE TITLE:  GARCIA VS THE BRIGANTINE INC [IMAGED]  37-2022-00042595-CU-OE-CTL class action waiver providing that the parties could not bring any dispute as a class, collective, or representative action.].) However, 'representative' would seemingly include any type of representative action. Brigatine's proposed interpretation renders the word redundant of class action type claims. The language includes 'representative or other similar basis.' This would include all representative actions, including PAGA.

Further, as discussed in Opposition, Section 4 of the Agreements state, 'The parties intend that this Agreement be limited to those claims that may legally be subject to pre-dispute arbitration agreement under applicable law.' At the time that the contract was entered into 'representative' claims such as PAGA were not sent to arbitration. Under applicable law at the time the Agreements were entered into (2018 and 2020), an individual PAGA claim could not be subject to Arbitration because applicable case law (Iskanian) did not allow for the division of PAGA actions into individual and non-individual claims.

See Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348. Thus, under the agreements, PAGA claims are excluded from arbitration.

The Court should DENY the motion to compel Calendar No.: Event ID:  TENTATIVE RULINGS

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