Judge: William D. Claster, Case: 22-0126130, Date: 2022-10-14 Tentative Ruling
Defendant Lenders Choice Escrow, Inc.'s Notice of Motion and Motion to Compel Arbitration, Dismiss Non-Individual PAGA Claims and Stay Action ROA 44
Defendant Lenders Choice Escrow, Inc. moves to compel individual arbitration of Plaintiff Bavly Abraham’s claims and to dismiss the representative portion of Plaintiff’s PAGA claim. In the alternative, Defendant asks that the Court stay the representative portion of Plaintiff’s PAGA claim pending the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc., No. S274671.
For the reasons set forth below, Defendant’s motion is GRANTED. Plaintiff is to arbitrate his claims on an individual basis, and the representative portion of his PAGA claim is stayed pending the decision in Adolph. The current case management conference of October 31, 2022 is vacated. An arbitration review conference will take place in Department CX-104 at 8:30 a.m. on June 1, 2023.
EVIDENTIARY MATTERS
Plaintiff requests judicial notice of nine documents in support of his opposition. Defendant objects to all requests.
Exhibit 1 is a declaration filed in Moriana v. Viking River Cruises, Inc., LASC No. BC687325. The Court DENIES notice of this document as irrelevant to the Court’s ruling. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748 fn. 6 [declining to take judicial notice of materials not “necessary, helpful, or relevant”].)
Exhibits 2-8 are unpublished rulings from California Superior Courts cited for their persuasive value. The Court DENIES notice of these documents. “Even assuming for the sake of argument that [these cases] involve[] the same issue as the case before [the Court] . . . a written trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)
Exhibit 9 is an unpublished ruling from a California federal district court. Unlike state trial court opinions, this ruling is citable. Nevertheless, the Court DENIES notice as irrelevant to the Court’s ruling.
GROUNDS FOR RULING
On September 1, 2022, the Court granted Plaintiff’s request for dismissal of his class claims and his consent to arbitrate his individual claims upon Defendant’s request. (ROA 37.) The Court therefore grants the motion as to the individual claims. All that remains to decide is the fate of Plaintiff’s PAGA claim.
Per Plaintiff’s opposition, there are only three issues in dispute for purposes of this motion:
Because Plaintiff identifies only these issues as disputed, the Court treats the remainder of Defendant’s motion as unopposed. That is, Plaintiff concedes (1) he signed an arbitration agreement that covers his PAGA claim; (2) the arbitration agreement is enforceable; and (3) the Federal Arbitration Act (and thus Viking River Cruises) applies.
The relevant portion of Plaintiff’s arbitration agreement provides as follows (Hoffstatter Decl., Ex. A [capitals original, italics added]):
I UNDERSTAND AND AGREE THAT ALL DISPUTES INCLUDING ANY CLASS OR REPRESENTATIVE CLAIMS I MAY HAVE AGAINST LENDERS CHOICE ESCROW, INC., ITS OWNERS, MANAGERS, EMPLOYEES AND AGENTS SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THEREFORE, THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW ME TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
PAGA claims are considered “representative” in that the employee is the representative of the State, the real party in interest. But Viking River Cruises explains that when the FAA applies, a PAGA claim is “representative” in two ways. First, the employee is the representative of the State. Second, the claim consists of an “individual” component, for civil penalties based on Labor Code violations suffered by the employee, and a “representative” component, for civil penalties based on Labor Code violations suffered by other aggrieved employees. (Viking River Cruises, supra, 142 S.Ct. at p. 1916.)
Under the representative action waiver in Plaintiff’s agreement, the individual component of his PAGA claim can be arbitrated. The agreement provides that claims are to be arbitrated “on an individual basis.” (Hoffstatter Decl., Ex. A.) What the arbitrator cannot decide, and what Plaintiff cannot pursue, is a claim made in a “representative capacity for others” (ibid.), or as the Supreme Court put it, “PAGA claims arising out of events involving other employees.” (Viking River Cruises, supra, 142 S.Ct. at p. 1916.)
Because the representative action waiver permits Plaintiff to bring an individual PAGA claim based on Labor Code violations he personally suffered, the Court need not consider Plaintiff’s arguments about the agreement’s severability clause.
As to further proceedings, Defendant asks that the Court either dismiss the representative portion of Plaintiff’s PAGA claim without prejudice or stay it pending the decision in Adolph. The Court chooses the latter path. Were the Court to dismiss the representative PAGA claims only for Adolph to reach a different conclusion on standing than Viking River Cruises, both judicial economy and the parties’ resources would be taxed by attempts to unwind the dismissal. Furthermore, the arbitrator may decide that Plaintiff hasn’t suffered any of the Labor Code violations complained of, meaning Plaintiff presumably lacks PAGA standing regardless of what happens in Adolph.