Filed 9/18/20 Moriana v. Viking River Cruises, Inc. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANGIE MORIANA, B297327
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC687325)
v.
VIKING RIVER CRUISES, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Richard J. Burdge, Jr., Judge. Affirmed.
Littler Mendelson, Douglas A. Wickham and Ian T. Maher for
Defendant and Appellant.
Law Offices of Kevin T. Barnes, Kevin T. Barnes, Gregg
Lander; Davtyan and Emil Davtyan for Plaintiff and Respondent.
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Angie Moriana sued her former employer Viking River
Cruises, Inc. (Viking), seeking recovery of civil penalties under the
Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab.
Code, § 2698 et seq.). Viking moved to compel Moriana’s PAGA
claims to arbitration, arguing that the United States Supreme
Court’s decision in Epic Systems Corp. v. Lewis (2018) ___ U.S. ___
[138 S.Ct. 1612] overruled the California Supreme Court’s decision
in Iskanian v. CLS Transportation Los Angeles, LLC (2014)
59 Cal.4th 348 (Iskanian), which held arbitration agreements that
waive the right to bring PAGA representative actions in any forum
are unenforceable. The trial court denied Viking’s motion to compel
arbitration. We affirm the order denying that motion.
BACKGROUND
Moriana worked for Viking as a sales representative and
agreed to submit any dispute arising out of her employment to
binding arbitration. The agreement required Moriana to waive any
right to bring a class, collective, representative, or private attorney
general action. It also included a delegation provision, giving the
arbitrator authority to resolve any disputes over the formation,
existence, validity, interpretation or scope of the agreement.
Moriana sued Viking on behalf of the state and all other
similarly situated aggrieved employees, alleging various Labor
Code violations in a single cause of action under PAGA. Viking
moved to compel Moriana’s PAGA claims to arbitration. The trial
court denied the motion.
DISCUSSION
Because the pertinent facts are undisputed and the denial of
Viking’s motion was based upon a decision of law, our review is de
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novo. (Betancourt v. Prudential Overall Supply (2017)
9 Cal.App.5th 439, 347.)
Viking argues that the trial court should have compelled
Moriana’s PAGA claims to arbitration based on the United States
Supreme Court’s decision in Epic Systems Corp. v. Lewis, supra,
138 S.Ct. 1612, which Viking claims overruled our Supreme Court’s
decision in Iskanian, supra, 59 Cal.4th 348. Iskanian, at pages 384
and 389, held that an arbitration agreement that included a waiver
of an employee’s right to bring a representative PAGA action in any
forum violated public policy and that federal law did not preempt
this rule. Subsequent California Courts of Appeal cases applying
Iskanian have held that an employee’s predispute agreement to
arbitrate PAGA claims is unenforceable absent a showing the state
also consented to the agreement. (Julian v. Glenair, Inc. (2017)
17 Cal.App.5th 853, 869–872; Betancourt v. Prudential Overall
Supply, supra, 9 Cal.App.5th at pp. 445–449; Tanguilig v.
Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 677–680.) Each of
these cases relied on Iskanian’s reasoning that a PAGA
representative action is a type of qui tam action and that the state
is always the real party in interest in the suit. (Julian, at pp. 871–
872, Betancourt, at pp. 448–449; Tanguilig, at pp. 677–680.)
Viking argues that Iskanian is no longer good law in the wake
of Epic Systems Corp. v. Lewis, supra, 138 S.Ct. 1612. Epic was not
a PAGA case. Rather, Epic, at page 1620, held that an agreement
that requires an employee to arbitrate claims individually does not
violate employees’ right to engage in concerted activity and
collective action via federal class action procedures. The Epic court
noted the initial judicial antagonism toward arbitration
“ ‘manifested itself in a great variety of devices and formulas
declaring arbitration against public policy.’ ” (Id. at p. 1623.) Epic
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warned lower courts to be “alert to new devices and formulas that
would achieve much [of] the same result” and declared that “a rule
seeking to declare individualized arbitration proceedings off limits
is . . . just such a device.” (Ibid.)
Here, Viking argues that Epic invalidates the Iskanian rule
against PAGA waivers as a judicially constructed device that
prohibits or disfavors valid contracts requiring individualized
arbitration proceedings. Since Epic, however, California courts
continue to find private predispute waivers of PAGA claims
unenforceable. (See, e.g., Correia v. NB Baker Electric, Inc. (2019)
32 Cal.App.5th 602, 622; Collie v. Icee Company (2020) 52
Cal.App.5th 477, 483; Kec v. Superior Court of Orange County
(2020) 51 Cal.App.5th 972, 977–978; Bautista v. Fantasy
Activewear, Inc. (2020) 52 Cal.App.5th 650, 657–658.) This is
because “Epic addressed a different issue pertaining to the
enforceability of an individualized arbitration requirement against
challenges that such enforcement violated the [National Labor
Relations Act].” (Correia, at p. 619.) The cause of action in Epic
“differs fundamentally from a PAGA claim” in that the real party in
interest in a PAGA claim is the state. (Correia, at p. 619.) Thus,
Epic’s warning about impermissible devices to get around otherwise
valid agreements to individually arbitrate claims notwithstanding,
Iskanian remains good law.1 We therefore reject Viking’s
characterization of PAGA claims as a transparent device to
1 “On federal questions, intermediate appellate courts in
California must follow the decisions of the California Supreme
Court, unless the United States Supreme Court has decided the
same question differently.” (Correia v. NB Baker Electric, Inc.,
supra, 32 Cal.App.5th at p. 619; accord., Tanguilig v.
Bloomingdale’s, Inc., supra, 5 Cal.App.5th at p. 673.)
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preclude individualized arbitration proceedings and follow
Iskanian, which instead viewed predispute PAGA waivers
precluding PAGA actions in any forum as attempts to exempt
employers from responsibility for violations of the Labor Code. (See
Iskanian, supra, 59 Cal.4th at p. 383.)
Viking also argues that Moriana’s “individual PAGA claim”
should be compelled to arbitration. However, there are no
individual PAGA claims. “All PAGA claims are ‘representative’
actions in the sense that they are brought on the state’s behalf. The
employee acts as ‘ “the proxy or agent of the state’s labor law
enforcement agencies” ’ and ‘ “represents the same legal right and
interest as” ’ those agencies—‘ “namely, recovery of civil penalties
that otherwise would have been assessed and collected by the Labor
Workforce Development Agency.” ’ ” (ZB, N.A. v. Superior Court
(2019) 8 Cal.5th 175, 185.) While Iskanian, supra, 59 Cal.4th at
page 384, left open the possibility that an “individual PAGA action”
might be cognizable, courts have since found that a single
representative claim cannot be split into arbitrable individual
claims and nonarbitrable representative claims. (See, e.g., Correia
v. NB Baker Electric, Inc., supra, 32 Cal.App.5th at p. 625;
Tanguilig v. Bloomingdale’s, Inc., supra, 5 Cal.App.5th at p. 677.)
“[R]egardless of whether an individual PAGA cause of action is
cognizable, a PAGA plaintiff’s request for civil penalties on behalf of
himself or herself is not subject to arbitration under a private
arbitration agreement between the plaintiff and his or her
employer.” (Tanguilig, at p. 677; accord, Perez v. U-Haul Co. of
California (2016) 3 Cal.App.5th 408, 421 [single representative
action not divisible into individual claims].) Moriana’s complaint
contains a single cause of action under PAGA and the only relief she
seeks are statutory penalties for Labor Code violations. Thus, she
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has brought a representative claim that cannot be compelled to
arbitration. Moriana alleged no personal claim seeking
compensation that might be individually arbitrated.
Lastly, Viking contends that the trial court erred by not
sending the “gateway issues” to the arbitrator, that is, whether
there was an agreement to arbitrate between the parties and
whether the agreement covers the dispute. However, the threshold
question here is not whether claims are arbitrable under an
agreement among the parties, but rather whether there exists an
agreement among the parties at all. “Under ‘both federal and state
law, the threshold question presented by a petition to compel
arbitration is whether there is an agreement to arbitrate.’ ” (Cruise
v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) Because Moriana
was not acting as an agent of the state when she agreed to arbitrate
any claim arising from her employment, there is no agreement that
would bind the state to arbitration, even on the question of
arbitrability.
DISPOSITION
The order is affirmed. Angie Moriana is awarded her costs on
appeal.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J. EGERTON, J.
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