Judge Thomas D. Long, Case 20SSTCV37321 2023-04-06 Tentative Ruling

On September 30, 2020, Plaintiff Mirriam Pantig, as an “aggrieved employee,” filed this action against Defendant VXI Global Solutions, LLC, asserting a single cause of action for civil penalties under the Private Attorneys General Act (“PAGA”) due to Defendant’s violations of the Labor Code.

On November 30, 2022, Defendant filed a motion to compel arbitration and dismiss the action. No oppositions were filed.

When seeking to compel arbitration of a plaintiff’s claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) The burden then shifts to the plaintiff to prove the falsity of the agreement. (Ibid.) After the Court determines that an agreement to arbitrate exists, it then considers objections to its enforceability. (Ibid.) The Court must grant a petition to compel arbitration unless the defendant has waived the right to compel arbitration or if there are grounds to revoke the arbitration agreement. (Ibid.; Code Civ. Proc., § 1281.2.)

A. Defendant Shows the Existence of an Arbitration Agreement That Applies to Plaintiff’s Claims.

Defendant contends that on December 7, 2015, Plaintiff signed an arbitration agreement in connection with her on-boarding process for employment. (Motion at p. 6; Tang Decl. ¶ 3 & Ex. A.) Plaintiff later signed a slightly revised agreement that changed the Arbitrator from Alternative Resolution Centers to the American Arbitration Association (“AAA”). (Tang Decl. ¶ 4.) Defendant provides a copy of the revised Mutual Agreement To Arbitrate Individual Claims, signed by Plaintiff on December 13, 2016. (Tang Decl., Ex. B [“Arbitration Agreement”].)

In the Arbitration Agreement, the parties agreed to arbitrate “all individual claims or controversies,” including “claims for wages, bonuses, commissions or any other form of compensation . . . claims for benefits; [and] all claims for violation of or damages under any federal, state, or other governmental law, statute, ordinance, Executive Order, or regulation.” (Arbitration Agreement ¶ 1.)

Arbitration agreements for FEHA claims must (1) provide for neutral arbitrators, (2) provide for more than minimal discovery, (3) require a written award, (4) provide for all of the types of relief that would otherwise be available in court, and (5) not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. (Armendariz, supra, 24 Cal.4th at p. 102.) These requirements may also apply to claims under the Labor Code. (See Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 254.)

The Arbitration Agreement provides for a neutral arbitrator who is a retired judge, selected in accordance with the Employment Arbitration Rules and Mediation Procedures of AAA. (Arbitration Agreement ¶ 4.) The AAA rules provide for adequate discovery. The arbitrator “shall apply the substantive law (and the law of remedies, if applicable) of the state in which the claim arose, or federal law, or both, as applicable to the individual claim(s) asserted” and “shall render a reasoned written award,” and their “remedial authority shall be no greater than that which is available under the statutory or common law theory asserted.” Defendant will pay the arbitrator’s fees and costs “to the full extent required by law,” and each party will bear their own fees and costs “unless otherwise required by law.” (Arbitration Agreement ¶ 5.)

C. Plaintiff’s Individual Claim Must Be Arbitrated, But the Court Defers Ruling on the Dismissal of Plaintiff’s Representative Claim.

Defendant has shown that the Arbitration Agreement requires Plaintiff to arbitrate her individual claim. Plaintiff did not file an opposition, so she did not show any grounds for rescission of the Arbitration Agreement. Accordingly, the motion is granted for Plaintiff’s individual claim. (See Code Civ. Proc., § 1281.2.)

“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. See Cal. Lab. Code Ann. §§ 2699(a), (c). When an employee’s own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit.” (Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1925 (Viking River Cruises).)

However, in Viking River Cruises, the Supreme Court also recognized that this is ultimately an issue of state law. The California Supreme Court is set to decide the issue in Adolph v. Uber Technologies, Case No. S274671 (Adolph). The California Supreme Court granted review on July 20, 2022, and on August 1, 2022, it limited the issue to be briefed as: “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 [citations] 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 arbitrable.” The case is fully briefed, but oral argument has not yet been set.

Accordingly, this Court will defer its ruling on the issue of dismissing the remaining representative claim pending the California Supreme Court’s decision in Adolph. But as discussed above, Plaintiff’s individual claim is compelled to arbitration.

The motion is GRANTED as to Plaintiff’s individual PAGA claim. That portion of the case is STAYED pending binding arbitration.

The Court defers its ruling on the issue of dismissal of Plaintiff’s remaining representative claim pending the California Supreme Court’s decision in Adolph v. Uber Technologies, Case No. S274671.

A Status Conference Re: Arbitration is scheduled for October 6, 2023 at 8:30 AM in Department 48 at Stanley Mosk Courthouse.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court