Judge: Peter Wilson, Case: 2021-01202607, Date: 2022-09-08 Tentative Ruling

Defendant American Residential Services, LLC seeks to compel arbitration of Plaintiff Gerardo Abundo’s individual claims and dismissal of all non-individual claims.

This is a PAGA-only action. It is undisputed that on August 25, 2022, Plaintiff filed a demand for arbitration of the individual portion of his PAGA claims. ROA 74, Lucio Decl., ¶11; ROA 76, Opp., pp. 2:8-11; ROA 80, Reply, at pp. 2:7-9. Thus, the Motion to Compel Arbitration is MOOT, leaving only Defendant’s request for dismissal of the representative portion of Plaintiff’s PAGA claims.

This request follows the decision in Viking River Cruises v. Moriana (2022) 142 S. Ct. 1906, where the majority 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, as Plaintiff correctly point out, “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 Cruises 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 Cruises, 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 Cruises, both judicial economy and the parties’ resources would be taxed by attempts to unwind the dismissal. Further, the arbitrator may decide that Plaintiff has not suffered any of the Labor Code violations complained of, meaning he has no PAGA standing regardless of what happens in Adolph. For these reasons, the Court DENIES the request to dismiss the representative claims without prejudice to Defendant raising the issue again when the arbitration on Plaintiff’s individual claims concludes. 

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

A status conference is scheduled for February 24, 2023 at 9:00 a.m., and the parties are ordered to file a joint status report not later than February 17, 2023.

Defendant is ordered to give notice.