Judge: Randall J. Sherman, Case: 2019-01070595, Date: 2022-12-30 Tentative Ruling

Defendant Sentinel Restaurant and Hospitality Group, LLC’s Motion to Compel Arbitration and Dismiss Plaintiff’s Complaint is granted in part and denied in part.  The motion is granted in that plaintiff’s PAGA claims based on violations allegedly suffered by plaintiff are ordered to arbitration.  The motion is denied in that plaintiff’s PAGA claims based on violations allegedly suffered by other employees will not be dismissed, but will be stayed pending completion of the arbitration and pending the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc., Case No. S274671.  Plaintiff’s Request for Judicial Notice is denied.  The Status Conference set for February 3, 2023 is ordered off calendar.  A Post-Arbitration Review Hearing is set for June 29, 2023 at 9:00 a.m.  The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete.

The court concludes that there exists a valid agreement to arbitrate the individual PAGA claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement.  CCP §1281.2.  Plaintiff does not dispute that he signed the arbitration agreement.  The Arbitration Agreement applies to plaintiff’s PAGA claims because they “arise out of or are related in any way to plaintiff’s employment”, and thus fall within the scope of the parties’ arbitration agreement.  Plaintiff argues that some of defendant’s employees may not have understood English, but defendant has shown that plaintiff himself spoke English (Nye Decl. ¶8), that defendant utilized both English and Spanish documents for employment related purposes, and that employees were provided with either English or Spanish-language documents as needed (Reply Nye Decl. ¶¶3-5).  The Federal Arbitration Act applies because defendant is engaged in interstate commerce, and the agreement provides that it is governed by the FAA.  Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal. App. 5th 834, 840.

Although plaintiff’s PAGA claims based on violations he suffered must be arbitrated under Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906, plaintiff’s PAGA claims based on violations other employees suffered will be stayed pending completion of the arbitration and pending the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc., Case No. S274671.  Although the lead opinion in Viking River Cruises concluded that a plaintiff lacks standing to bring non-individual PAGA claims, and that those claims should be dismissed, that conclusion is not controlling, and the California Supreme Court is set to decide that very issue in Adolph v. Uber Technologies, Inc.  The more prudent course is for this court to await that decision.  This court will not grant plaintiff’s request to stay the ruling on this motion to give plaintiff an opportunity to find a substitute PAGA representative who may not have signed an arbitration agreement.  Plaintiff may try to find a new PAGA representative and may seek to substitute that person into this case notwithstanding this stay.

Defendant is ordered to give notice of the ruling unless notice is waived.