Judge: Randall J. Sherman, Case: JCCP5081, Date: 2022-11-04 Tentative Ruling

(1) Defendant’s Motion to Compel Arbitration of Plaintiff Simon’s Individual PAGA Claim and Dismiss Non-Individual PAGA Claims, (2) Defendant’s Motion to Compel Arbitration of Plaintiff Burkart’s Individual PAGA Claim and Dismiss Non-Individual PAGA Claims, and (3) Defendant’s Motion to Compel Arbitration of Plaintiff Onifer’s Individual PAGA Claim and Dismiss Non-Individual PAGA Claims are granted in part and denied in part.  The motions are granted in that plaintiffs’ individual PAGA claims are ordered to arbitration.  The motions are denied in that plaintiffs’ representative PAGA claims 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.  The Status Conference set for December 8, 2022 is ordered off calendar.  A Post-Arbitration Review Hearing is set for May 26, 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.  Plaintiff Onifer’s Request for Judicial Notice is denied.  Plaintiff Burkart’s Request for Judicial Notice is granted as to #1-2 and denied as to #3-9.  Defendants’ three Requests for Judicial Notice are denied,

The court concludes that there exists valid agreements to arbitrate the claims asserted by plaintiffs and that no grounds exist to bar enforcement of the agreements.  CCP §1281.2.  Plaintiffs do not dispute that they signed the arbitration agreements.  Plaintiffs’ PAGA claims based on violations they personally suffered must be arbitrated under Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906. 

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.

Plaintiff Simon argues that the parties agreed to keep his PAGA claims in court by virtue of a Stipulation and Order filed on October 19, 2018.  Paragraph 6 of the Stipulation provides: “The PAGA claim set forth in the amended complaint shall remain before this Court for adjudication; however, the matter shall be stayed until the completion of the arbitration.”  Paragraph 5 of the Order provides similarly: “The PAGA claim shall remain before this Court for adjudication; however, the matter shall be stayed.”  The clause does not say that the court will decide plaintiff’s PAGA claim, but that his PAGA claim won’t be sent to arbitration, but will remain in court, to be adjudicated in a way that is not specified.  Now that the law has changed, and plaintiff Simon’s PAGA claim is subject to arbitration, that claim must now be arbitrated as its adjudication.

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