Judge: Peter Wilson, Case: 2017-00947398, Date: 2022-10-06 Tentative Ruling

Defendant ABC Phones of North Carolina, Inc. dba A Wireless seeks to compel Plaintiff Dylan Itkoff to arbitrate his individual PAGA claim, dismiss the representative PAGA claims and stay this action pending arbitration.

The Motion to Compel Arbitration is GRANTED. Plaintiff concedes he is required to arbitrate his individual PAGA claims. ROA 184, Opp., pp. 2:19-20 [“Plaintiff concedes that Viking River Cruises requires arbitration of Plaintiff’s individual PAGA claims”], 5:1-2 [“Accordingly, Plaintiff concedes compelling arbitration of her (sic) individual claims”], 14:9-12 [For the foregoing reasons, and because the matter was already settled in writing, Defendant’s motion to compel arbitration of Plaintiff’s individual PAGA claims should be granted, but their motion to dismiss Plaintiff’s representative action under PAGA on behalf of the state and similarly aggrieved employees should be denied”]. Therefore, the parties are ordered to arbitrate Plaintiff’s individual PAGA claims.

Under the FAA, 9 U.S.C. §3, and CAA, CCP §1281.4, this case must be STAYED until completion of Plaintiff’s arbitration. In Viking River, the majority of the U.S. Supreme Court explained that under its view of California law, plaintiffs who are ordered to arbitrate their individual PAGA claims lose standing to prosecute representative PAGA claims: “But as we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA’s standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action.” (142 S. Ct. at 1925.)

But “construction of a state statute by a federal court does not preclude a state court from later rejecting the federal court’s conclusion.” (16 Cal.Jur.3d (2022) Courts, § 324. See also, East Quincy Services Dist. v. General Accident Ins. Co. of America (2001) 88 Cal.App.4th 239, 246 (“As we repeatedly remind litigants, on questions of state law even U.S. Supreme Court decisions are not controlling.”).) As two concurrences in Viking River pointed out, the majority may well be incorrect about PAGA standing. Justice Sotomayor wrote, “Of course, if this Court’s understanding of state law is wrong, California courts, in an appropriate case, will have the last word.” (Viking River, supra, 142 S.Ct. at 1926 [conc. opn. of Sotomayor, J.].) And three justices noted the majority’s conclusion “addresses disputed state-law questions” and “is unnecessary to the result.” (Ibid. [conc. opn. of Barrett, J.].)

The California Supreme Court recently granted review in Adolph v. Uber Technologies, S274671, to answer this exact question. Per an order dated August 1, 2022, “The issue to be briefed and argued is limited to the following: Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are ‘premised on Labor Code violations actually sustained by’ the aggrieved employee [citation] maintains statutory standing to pursue ‘PAGA claims arising out of events involving other employees’ [citation] in court or in any other forum the parties agree is suitable.”

Were the Court to dismiss the representative PAGA claims only for Adolph to reach a different conclusion than Viking River, both judicial economy and the parties’ resources would be taxed by attempts to unwind the dismissal. The Court accordingly DENIES the request to dismiss the representative claims without prejudice to Defendant raising the issue again when the arbitration on Plaintiff’s individual PAGA claims concludes.

The Court orders that this matter is STAYED pending completion of the arbitration. (Code Civ. Proc. § 1281.4.)

The Court SUSTAINS Defendant’s objections (ROA 190) to the Singer Decl. and Ex. A attached thereto.

A status conference is scheduled for April 7, 2023 at 9:00 a.m., and the parties are ordered to file a joint status report not later than March 30, 2023.

Defendant is ordered to give notice.