Shaw v. Super. Ct.

Filed 5/3/22
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ASHLEY SHAW et al.,
Petitioners,
v.
THE SUPERIOR COURT OF A163263
CONTRA COSTA COUNTY,
(Contra Costa County
Respondent;
Super. Ct. No. C-20-01407)
BEVERAGES & MORE, INC.,
Real Party in Interest.

Petitioners brought a representative suit under the Private
Attorneys General Act of 2004 (PAGA) (Lab. Code,1 § 2698 et
seq.). They conceded that their suit arises from the same facts
and theories as another PAGA action pending in Los Angeles.
While their petition for judicial coordination (Code Civ. Proc.,
§ 404) with the Los Angeles PAGA suit was pending, the trial
court in this case stayed petitioners’ suit. After the petition for
coordination was denied, the trial court denied petitioners’
motion to lift the stay, concluding that the stay was warranted
under the doctrine of exclusive concurrent jurisdiction. In this

Unless otherwise specified, subsequent statutory
1

references are to the Labor Code.

1
writ of mandate proceeding, we find that the trial court did not
err in applying the exclusive concurrent jurisdiction rule to this
dispute. We therefore deny the petition for a peremptory writ of
mandate.
BACKGROUND
Petitioners’ operative first amended complaint in this
representative action alleges PAGA-only claims. They contend
that defendant Beverages & More!, Inc. (BevMo) maintains a
policy that requires the presence of two persons in any store
while open (the two-person policy). The two-person policy
regularly requires employees to forgo off-duty, uninterrupted
meal and rest periods, or, alternatively, premium pay for
noncompliant meal and rest periods. As a result of this policy,
BevMo failed to pay overtime wages (§§ 510, 1194); failed to
provide off-duty meal periods (§§ 226.7, 512); failed to make
available off-duty rest periods (§ 226.7); failed to pay all wages
due upon termination (§§ 201–203); failed to provide compliant
wage statements (§ 226, subd. (a)); and failed to maintain payroll
records (§ 1174). Petitioners gave notice to the Labor and
Workforce Development Agency (LWDA) under PAGA on July 21,
2020, and they seek to represent aggrieved employees “who have
worked for Defendant[] at any time since one year prior to the
filing of the PAGA Notice to the trial in this action.”
More than a year before petitioners filed suit, Tatiana Paez
filed a PAGA representative action against BevMo in Los Angeles
County (Paez). Paez sued, in part, over the two-person policy.
The claims in Paez that overlap with petitioners’ claims are

2
failure to pay overtime wages (§§ 510, 1194); failure to provide
off-duty meal periods (§§ 226.7, 512); failure to make available
off-duty rest periods (§ 226.7); failure to pay all wages due upon
termination (§§ 201–203); failure to provide compliant wage
statements (§ 226, subd. (a)); and failure to maintain payroll
records (§ 1174). Paez also includes claims for failure to pay
minimum wage (§§ 1182.12, 1194, 1197, 1198); failure to pay
wages during employment (§ 204); failure to pay costs of medical
or physical examination (§ 222.5); failure to provide suitable
seating (§ 1198; Cal. Code of Reg., tit. 8, § 116.11070(14)(A));
failure to reimburse necessary business expenses (§ 2802); and
failure to provide safety devices and safeguards (§§ 6401, 6403).
Paez brought an action on behalf of herself and current and
former “aggrieved employees” who worked for BevMo in
California as non-exempt employees and who received at least
one wage statement at any time from one year prior to June 25,
2019, until judgment.
BevMo sought to stay the proceeding in this case under the
doctrine of exclusive concurrent jurisdiction and under the court’s
inherent authority. Petitioners filed a petition to coordinate this
case with Paez and asked for appointment of their counsel as
“liaison counsel” for the aggrieved employees. In their respective
filings in the coordination proceeding, petitioners and BevMo
agreed that the PAGA claims in this case overlap completely with
those in Paez.
While the petition for coordination was pending, the trial
court in this matter granted BevMo’s motion to stay. The court

3
found that the pending coordination petition did not limit its
power to decide the motion because the coordination motion
judge’s power to issue a stay supplemented, but did not displace,
the trial court’s power under Code of Civil Procedure section 128
and its inherent judicial authority. The court then applied the
doctrine of exclusive concurrent jurisdiction, rejecting petitioners’
argument that the doctrine does not apply in PAGA cases. The
court issued an order staying the proceeding until one of the
following occurred: “a. The Paez action . . . is finally resolved by
judgment, settlement, or otherwise. [¶] b. The coordination
motion judge or, if Plaintiffs’ petition is granted[,] the
coordination trial judge, issues an order that the stay is lifted in
whole or in part. . . . [¶] or c. The Court enters a further order
upon the noticed motion of either side.”
Paez and BevMo opposed the petition for coordination and
for appointment of liaison counsel, and the coordination motion
judge denied petitioners’ requests. The coordination judge found
Paez could not be coordinated with petitioners’ suit because the
trial judge in the Los Angeles action had determined that Paez
was not complex, and the coordination judge declined “to depart”
from that decision. The coordination judge also found that, even
if Paez were complex, the standards for coordination were not
met for a variety of reasons, including that common questions of
fact and law did not predominate given Paez’s breadth; Paez was
at a more advanced stage in the litigation; the convenience of the
parties, witnesses, and counsel did not favor coordination in
either location; counsel in Paez were vigorous advocates; the stay

4
of petitioners’ case meant that coordination was not required for
judicial economy or to avoid duplicative rulings; and, a settlement
of Paez would resolve this case, but the addition of more parties
and attorneys might inhibit settlement.
While their petition for coordination was pending,
petitioners filed a motion to intervene in Paez. The trial court
denied their motion, finding that petitioners did not have an
interest in Paez sufficient to justify intervention. The Paez trial
court further found that even if petitioners did have such an
interest, petitioners represented the LWDA’s interests, and the
Paez plaintiffs adequately represented those interests.
Petitioners next moved to lift the stay in this case. The
argument they presented in their motion was that the rule of
exclusive concurrent jurisdiction did not preclude the trial court
from lifting the stay because countervailing policies rendered the
doctrine inapplicable. They also argued that the doctrine of
collateral estoppel shields defendants from vexatious litigation
under PAGA, and PAGA does not prohibit concurrent PAGA
representative suits from proceeding simultaneously.
After a hearing, the trial court denied the motion. As an
initial matter, the court “agree[d] with plaintiffs that application
of the rule [of exclusive concurrent jurisdiction] is discretionary,”
and observed the “question is whether the Court should exercise
its discretion to apply the rule in the case at bar.” Deciding that
it should, the court rejected petitioners’ argument that not lifting
the stay would “significantly impair” PAGA’s enforcement
mechanism. The court found that, “while PAGA claims may

5
sometimes be enforced through multiple overlapping lawsuits, it
does not logically follow that limiting enforcement to a single
lawsuit constitutes impairment.”2 The court then cited a number
of policy considerations supporting application of the rule of
exclusive concurrent jurisdiction, which petitioners did not
address. It noted that petitioners did not “dispute that it would
be inefficient for the same PAGA claims to be litigated
simultaneously in two courts, etc.” The court also found that the
doctrine of res judicata, which petitioners claimed was a remedy
for duplicative lawsuits, “only emphasizes the inefficiency of
allowing the two actions to proceed simultaneously. All work
done in this action would be rendered moot by res judicata if, as
appears likely right now, the same claims in the Paez action are
decided first.”3 Finally, the court noted that, in denying
petitioners’ request to intervene, the Paez court left “the door
ajar” to a subsequent showing that a later settlement may be
inadequate and therefore justify intervention. Accordingly, the
court concluded that “the considerations supporting application of

2The trial court remarked that the coordination judge
“found that the Paez action actually constituted a better
enforcement mechanism than the case at bar.”
3 Petitioners also argued below that the court should
consider the following as countervailing policy factors: petitioners
had a strong case, excellent witnesses, and highly experienced
counsel. The court found petitioners failed to show that they had
a stronger case, better witnesses, or more competent counsel than
the plaintiffs in Paez, and petitioners do not repeat this argument
in their writ petition.

6
the rule of exclusive concurrent jurisdiction outweigh the
considerations supporting a lifting of the stay.”4
DISCUSSION
At issue in this writ petition is whether the trial court
erred in applying the doctrine of exclusive concurrent jurisdiction
to this PAGA representative suit. Before turning to this
question, we briefly review the applicable legal principles.
I. Legal Background
A. PAGA
“ ‘ “ The State’s labor law enforcement agencies—the
[LWDA] and its constituent departments and divisions—are
authorized to assess and collect civil penalties for specified
violations of the Labor Code committed by an employer.” ’
[Citation.] In 2003, citing inadequate funding for enforcement of
labor laws, the Legislature enacted PAGA to ‘authorize[] an
employee to bring an action for civil penalties on behalf of the
state against his or her employer for Labor Code violations
committed against the employee and fellow employees, with most
of the proceeds of that litigation going to the state.’ [Citation.]
The statute was intended ‘ “to punish and deter employer
practices that violate the rights of numerous employees under the
Labor Code.” ’ ” (Wesson v. Staples the Office Superstore, LLC
(2021) 68 Cal.App.5th 746, 759–760.)

4BevMo’s requests for judicial notice of the LWDA notice
and complaint filed on behalf of Michael Garner are denied on the
grounds of relevance. The court will take judicial notice of the
existence of the court records submitted with petitioners’ request
for judicial notice.

7
 “ ‘Under this legislation, an “aggrieved employee” may
bring a civil action personally and on behalf of other current or
former employees to recover civil penalties for Labor Code
violations. [Citation.] Of the civil penalties recovered, 75 percent
goes to the [LWDA], leaving the remaining 25 percent for the
“aggrieved employees.” [¶] “ ‘Before bringing a civil action for
statutory penalties, an employee must comply with Labor Code
section 2699.3. [Citation.] That statute requires the employee to
give written notice of the alleged Labor Code violation to both the
employer and the [LWDA], and the notice must describe facts and
theories supporting the violation. [Citation.] If the agency
notifies the employee and the employer that it does not intend to
investigate. . . , or if the agency fails to respond within [the
requisite time], the employee may then bring a civil action
against the employer. [Citation.]’ ” (Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380
(Iskanian).) If the agency elects not to investigate, or
investigates without issuing a citation, the aggrieved employee
may then bring a PAGA action. (§ 2699.3, subd. (a)(2).)
A PAGA claim “is a dispute between an employer and the
state, which alleges directly or through its agents—either the
Agency or aggrieved employees—that the employer has violated
the Labor Code.” (Iskanian, supra, 59 Cal.4th at pp. 386–387.)
Our Supreme Court has made clear that “an action to recover
civil penalties [under PAGA] ‘is fundamentally a law enforcement
action designed to protect the public and not to benefit private
parties’ ”; that “[i]n a lawsuit brought under [PAGA], the

8
employee plaintiff represents the same legal right and interest as
state labor law enforcement agencies”; and that “an aggrieved
employee’s action under [PAGA] functions as a substitute for an
action brought by the government itself.” (Arias v. Superior
Court (2009) 46 Cal.4th 969, 986 (Arias); Iskanian, at p. 387.)
The state is always the real party in interest in a PAGA
representative suit. (Arias, at p. 986.) “[E]very PAGA action,
whether seeking penalties for Labor Code violations as to only
one aggrieved employee—the plaintiff bringing the action—or as
to other employees as well, is a representative action on behalf of
the state.” (Iskanian, at p. 394.)
B. The Exclusive Concurrent Jurisdiction Rule
Long before the Legislature enacted PAGA, California
recognized the judge-made doctrine of exclusive concurrent
jurisdiction. (See, e.g., Gorman v. Superior Court (1937)
23 Cal.App.2d 173.) Under this doctrine, when two or more
courts have subject matter jurisdiction over a dispute, the court
that first asserts jurisdiction assumes it to the exclusion of the
others. (Franklin & Franklin v. 7-Eleven Owners for Fair
Franchising (2000) 85 Cal.App.4th 1168, 1175 (Franklin).) The
rule is based upon the public policies of avoiding conflicts that
might arise between courts if they were free to make
contradictory decisions or awards relating to the same
controversy and preventing vexatious litigation and multiplicity
of suits. (BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th
349, 374 (BBBB Bonding Corp.).) The rule is “a judicial rule of
priority or preference and is not jurisdictional in the traditional

9
sense of the word,” in that it “does not divest a court, which
otherwise has jurisdiction of an action, of jurisdiction.” (People ex
rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th
760, 764–765, 769 (Garamendi).) Because it is a policy rule,
application of the rule depends upon the balancing of
countervailing policies. (Childs v. Eltinge (1973) 29 Cal.App.3d
843, 854–855; Garamendi, at pp. 770 & 775 (conc. opn. of
Armstrong, J.) [concurring in judgment because trial court
properly balanced countervailing policies and found exclusive
concurrent jurisdiction rule inapplicable]; BBBB Bonding Corp.,
at p. 374 [“Because [the rule of exclusive concurrent jurisdiction]
is a policy rule, the application of the rule in a given case depends
upon the balancing of countervailing policies”].)
“ ‘Although the rule of exclusive concurrent jurisdiction is
similar in effect to the statutory plea in abatement [Code
Civ. Proc., § 430.10, subd. (c)], it has been interpreted and applied
more expansively, and therefore may apply where the narrow
grounds required for a statutory plea [in] abatement do not exist.
[Citation.] Unlike the statutory plea [in] abatement, the rule of
exclusive concurrent jurisdiction does not require absolute
identity of parties, causes of action or remedies sought in the
initial and subsequent actions. [Citations.] If the court
exercising original jurisdiction has the power to bring before it all
the necessary parties, the fact that the parties in the second
action are not identical does not preclude application of the rule.
Moreover, the remedies sought in the separate actions need not
be precisely the same so long as the court exercising original

10
jurisdiction has the power to litigate all the issues and grant all
the relief to which any of the parties might be entitled under the
pleadings.’ ”5 (Garamendi, supra, 20 Cal.App.4th at p. 770.)
It has been said that “ ‘[a]n order of abatement issues as a
matter of right’ ” where the conditions for its issuance exist,
whether the right to abate exists under statutory abatement or
the judicial rule of exclusive concurrent jurisdiction.
(Garamendi, supra, 20 Cal.App.4th at pp. 770–771.) Where the
exclusive concurrent jurisdiction rule applies, the second action
should be stayed. (Id. at p. 771.) We recognize that certain
authorities state that the exclusive concurrent jurisdiction rule is
mandatory (Lawyers Title Ins. Corp. v. Superior Court (1984)
151 Cal.App.3d 455, 460), whereas others state that, as a policy
rule, countervailing policy concerns may render the rule
inapplicable. (Childs v. Eltinge, supra, 29 Cal.App.3d at pp. 854–
855; Garamendi, supra, 20 Cal.App.4th at pp. 770, 775; BBBB

5 Courts have held that the rule of exclusive concurrent
jurisdiction is subject to waiver and should be raised by demurrer
where the issue appears on the face of the complaint and by
answer where factual issues must be resolved, followed by a
motion to abate or for summary judgment. (Garamendi, supra,
20 Cal.App.4th at p. 771; see BBBB Bonding Corp., supra,
73 Cal.App.5th at p. 374.) BevMo did not raise the issue by
demurrer or answer. We decline to find waiver, however, because
petitioners have never argued for waiver. Further, as Garamendi
observed, “In some reported decisions, it is not clear whether
motions to abate or stay without answer or demurrer may have
been brought.” (Garamendi, at p. 771, fn. 9, citing Figgs v.
Superior Court (1962) 204 Cal.App.2d 231, Gorman v. Superior
Court, supra, 23 Cal.App.2d 173; see also Childs v. Eltinge,
supra, 29 Cal.App.3d at p. 848 [rule raised by motion to quash or
dismiss].)

11
Bonding Corp., supra, 73 Cal.App.5th at p. 374.) There is some
tension between the two lines of authority, but we need not delve
further into the issue because, if we assume the rule is
mandatory, for reasons we set forth, post, PAGA does not clearly
abrogate the rule; if we alternatively assume the trial court had
discretion to weigh policy concerns in deciding whether to apply
the rule, the court here committed no abuse of discretion in doing
so.
C. The Court Did Not Err in Applying the Exclusive
Concurrent Jurisdiction Rule
In their writ petition, petitioners do not argue that the
conditions for applying the exclusive concurrent jurisdiction rule
are absent here. They do not contend, for example, that this case
and Paez do not arise from the same facts and theories, that the
two litigations pose no risk of inconsistent rulings, or that the
parties and remedies involved are such that the exclusive
concurrent jurisdiction rule cannot be applied. Instead, as we
read their petition, petitioners make two overarching arguments
for why the trial court erred, and these arguments frame the
scope of the issues we address herein. First, petitioners argue
that PAGA does not include a statutory first-to-file rule, so the
trial court could not apply the exclusive concurrent jurisdiction
doctrine to their PAGA representative suit. Second, they argue
that countervailing policy concerns render the exclusive
concurrent jurisdiction rule inapplicable to PAGA representative

12
suits.6 As set forth below, we find petitioners’ arguments
unpersuasive.
Petitioners’ first argument is, in essence, an argument that
PAGA abrogated the judge-made doctrine of exclusive concurrent
jurisdiction. We disagree, as we conclude that the absence of an
express first-to-file rule in PAGA does not mean that the common
law doctrine cannot be applied in PAGA representative suits.
As a general rule, statutes should not be interpreted to
alter the common law (Presbyterian Camp & Conference Centers,
Inc. v. Superior Court (2021) 12 Cal.5th 493, 503 (Presbyterian
Camp)), and the “established rule” of exclusive concurrent
jurisdiction has been part of our jurisprudence since at least the
1930s. (Franklin, supra, 85 Cal.App.4th at p. 1175 [describing
the “established rule”]; see also De Brincat v. Mogan (1934)
1 Cal.App.2d 7, 9–11 [applying early version of rule as a question
of “first impression”]; Gorman v. Superior Court, supra, 23
Cal.App.2d at p. 178 [applying rule]; Childs v. Eltinge, supra,

6 Petitioners make seemingly contradictory statements
regarding whether they believe application of the exclusive
concurrent jurisdiction rule is mandatory or whether a court may
find that countervailing policies outweigh the policies that
support the rule in certain instances. They argued below that the
rule should not be applied “[a]s a matter of policy.” Here,
petitioners may intend to argue only that the trial court’s ruling
was erroneous because PAGA prohibits the application of the
exclusive concurrent jurisdiction rule, so we address that issue
first. As the trial court did, however, we perceive petitioners to
argue also that the trial court had discretion to find that
countervailing policies outweigh policies supporting application of
the rule, so we address that point as well.

13
29 Cal.App.3d at p. 854 [declining to apply rule because of
countervailing policies].) Statutes “ ‘should be construed to avoid
conflict with common law rules. [Citation.] “A statute will be
construed in light of common law decisions, unless its language ‘
“clearly and unequivocally discloses an intention to depart from,
alter, or abrogate the common-law rule concerning the particular
subject matter . . . .” ’ ” ’ ” (California Assn. of Health Facilities v.
Department of Health Services (1997) 16 Cal.4th 284, 297 (Health
Facilities); see also Presbyterian Camp, at p. 503.) Similarly,
courts will not find that the Legislature has controlled the
exercise of a court’s equitable discretion absent a clear and
unmistakable indication that the Legislature has chosen to do so.
(Webster v. Superior Court (1988) 46 Cal.3d 338, 345.) “ ‘[T]here
is a presumption that a statute does not, by implication, repeal
the common law. [Citation.] Repeal by implication is recognized
only where there is no rational basis for harmonizing two
potentially conflicting laws.’ ” (Health Facilities, at p. 297.) The
presumption against displacement of the common law is strong,
although abrogation of the common law does not require an
express declaration. (Ibid.) A common law rule will be deemed
abrogated only if “the language or evident purpose of the statute
manifest a legislative intent to repeal” it. (Ibid.)
We turn first to whether the language of PAGA evidences
the requisite legislative intent. As support for their position,
petitioners rely on section 2699, subdivision (h); they point out
that a PAGA action is a “type of qui tam action” (Iskanian, supra,
59 Cal.4th at p. 382), and the False Claims Act, another qui tam

14
statute, contains a statutory first-to-file rule (Gov. Code, § 12652,
subd. (c)(10)7) whereas PAGA does not; and they rely on the
canon of statutory interpretation that “ ‘ “[w]here a statute, with
reference to one subject contains a given provision, the omission
of such provision from a similar statute concerning a related
subject is significant to show that a different intention
existed.” ’ ” (Rashidi v. Moser (2014) 60 Cal.4th 718, 726.)
We do not find the statutory language or the canon of
statutory interpretation relied on by petitioners to be dispositive.
(See People v. Valencia (2017) 3 Cal.5th 347, 381 (conc. opn. of
Kruger, J.) [all interpretive canons are guides to statutory
interpretation and are not “invariably controlling”].) Section
2699, subdivision (h) provides that, if the LWDA cites or brings
an action against an employer on the same facts and theories for
a violation of the same section or sections of the Labor Code that
are noticed by an aggrieved employee, “[n]o action” may be
brought by an aggrieved employee.8 This provision reflects the

7The relevant provision of the False Claims Act provides:
“When a person brings an action under this subdivision, no other
person may bring a related action based on the facts underlying
the pending action.” (Gov. Code, § 12652, subd. (c)(10).)
8 Subdivision (h) states in full: “No action may be brought
under this section by an aggrieved employee if the agency or any
of its departments, divisions, commissions, boards, agencies, or
employees, on the same facts and theories, cites a person within
the timeframes set forth in Section 2699.3 for a violation of the
same section or sections of the Labor Code under which the
aggrieved employee is attempting to recover a civil penalty on
behalf of himself or herself or others or initiates a proceeding
pursuant to Section 98.3.” (§ 2699, subd. (h).)

15
Legislature’s stated desire for the LWDA to retain primacy over
Labor Code enforcement. (Stats. 2003, ch. 906, § 1, subd. (d).) If
the LWDA does not undertake enforcement efforts after the
employee gives the employer and the LWDA the requisite notice,
“an aggrieved employee” may sue his or her employer “on behalf
of himself or herself and other current or former employees.”
(§ 2699, subd. (a); 2699.3, subds. (a)–(c).) We agree with
petitioners that this statutory language is silent on the subject of
whether an aggrieved employee may bring a PAGA action when
another aggrieved employee brings a PAGA suit against the
employer based on the same facts and violations. But, as noted
above, in order to depart from or abrogate common law rules,
statutory language must “ ‘ “ ‘ “ ‘clearly and unequivocally
disclose[] an intention to’ ” ’ ” ’ ” do so. (Presbyterian Camp,
supra, 12 Cal.5th at p. 508.) We do not believe the absence of an
express statutory prohibition on the filing of duplicative PAGA
representative actions manifests the requisite unequivocal intent
to repeal the well-established exclusive concurrent jurisdiction
rule, especially considering the rule’s important policies of
avoiding conflicting decisions and preventing vexatious litigation
and multiplicity of suits. (See BBBB Bonding Corp., supra,
73 Cal.App.5th at p. 374 [discussing policies]; cf. Wesson v.
Staples the Office Superstore, LLC, supra, 68 Cal.App.5th at
p. 768 [section 2699.3 imposes only procedural preconditions to
filing a PAGA suit, “intended to afford the LWDA an ‘opportunity
to decide whether to allocate scarce resources to an
investigation . . . .’ ”; it includes no instruction relevant to the

16
management of ongoing PAGA litigation and reveals no
legislative intent that would preclude a court’s exercise of
inherent authority to ensure manageability].)
PAGA’s evident purpose similarly does not manifest a clear
intent to abrogate the exclusive concurrent jurisdiction rule. As
petitioners point out, faced with insufficient funding and staffing
for the LWDA and a growing labor market, the Legislature
enacted PAGA “to augment the limited enforcement capability of
the [LWDA] by empowering employees to enforce the Labor Code
as representatives of the [LWDA],” and it enacted new civil
penalties to deter violations. (Iskanian, supra, 59 Cal.4th at
pp. 379, 383; Stats. 2003, ch. 906, § 1.) Recognizing a court’s
power to stay a subsequent PAGA representative suit that is
wholly subsumed by a prior PAGA representative suit—i.e.,
where the second suit alleges the same Labor Code violations
based on the same facts and theories as the prior suit—does not
eliminate the code enforcement mechanism provided by PAGA:
the first suit proceeds, thus fulfilling PAGA’s purpose. Further,
should the plaintiff in the first litigation voluntarily dismiss his
or her claims for some reason, the stay may be lifted on the later-
filed suit. While the Legislature sought to maximize code
enforcement and deter future violations, we do not discern an
intent in PAGA to waste judicial resources, encourage a
multiplicity of duplicative suits, and prohibit courts from staying
suits that might otherwise lead to inconsistent results. PAGA
and the exclusive concurrent jurisdiction rule can rationally
coexist, and so they must. (Presbyterian Camp, at p. 503 [“ ‘Only

17
“ ‘where there is no rational basis for harmonizing’ ” a statute
with the common law will we conclude that settled common law
principles must yield.’ ”].)
Petitioners cite Kim v. Reins International California, Inc.
(2020) 9 Cal.5th 73 (Kim), and Huff v. Securitas Security Services
USA, Inc. (2018) 23 Cal.App.5th 745 (Huff), to support their
argument that the trial court impermissibly grafted onto PAGA a
first-to-file requirement not included by the Legislature. These
cases do not assist petitioners. In Kim, the Supreme Court
rejected the employer’s argument that an aggrieved employee
loses standing to pursue a PAGA representative claim by settling
his or her individual claims. (Kim, at pp. 80, 84.) The court
noted that PAGA conveyed standing upon an “aggrieved
employee,” defined as “any person who was employed by the
alleged violator and against whom one or more of the alleged
violations was committed.” (§ 2699, subd. (c).) As part of the
support for its holding, the court reasoned that the defendant’s
interpretation would “expand section 2699[, subd. ](c) to provide
that an employee who accepts a settlement for individual damage
claims is no longer aggrieved,” and “the Legislature said no such
thing.” (Kim, at p. 85.) Huff rejected an employer’s argument
that a PAGA representative could pursue penalties only for the
same type of Labor Code violations that he or she suffered
because the statute unambiguously provided that “an aggrieved
employee” can sue for violations that are not committed against
him or her. (Huff, at pp. 753–754.) In both cases, the courts
declined to deviate from clear statutory language governing the

18
issue before them. Here, we do not add a requirement to clear
statutory language. Rather, we construe PAGA in light of the
common law. (Health Facilities, supra, 16 Cal.4th at p. 297.)
Nor are Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853,
and Tan v. GrubHub, Inc. (N.D. Cal. 2016) 171 F.Supp.3d 998
(Tan), also relied on by petitioners, dispositive of the question
before us. Julian held that an arbitration agreement executed
before an employee meets the statutory requirements to file a
PAGA suit is an individual, predispute agreement that, under
Iskanian, does not require arbitration of a PAGA claim. (Julian,
at pp. 867, 872.) Julian rejected the defendant employer’s
argument that the arbitration agreements at issue were
enforceable, postdispute agreements because the plaintiffs signed
them after they were notified that another employee, Rojas, had
filed a similar lawsuit. (Id. at pp. 872–873.) Julian observed,
“nothing in the PAGA statutory scheme forecloses separate but
similar actions by different employees against the same
employer.” (Julian, at p. 866, citing Tan, at pp. 1012–1013.)
Julian rejected the employer’s argument that the Rojas action
and the plaintiffs’ action represented “the same dispute, for
purposes of determining whether the arbitration agreement
constituted an enforceable postdispute agreement” (Julian, at
p. 873), stating that a contrary finding would impair PAGA’s
enforcement mechanism, which permits the state to act through
more than one employee. (Ibid.) But the impairment mentioned
in Julian was allowing employers to require arbitration of PAGA
claims in all instances where an arbitration agreement was

19
signed after a different employee filed a similar PAGA claim.
One need only look to the facts recited in Julian to see how this
could impair enforcement litigation, as, by the time the plaintiffs
filed suit in Julian, the Rojas plaintiff had dropped her PAGA
claim. (Julian, at pp. 860–862.) Julian did not address whether
PAGA’s purposes would be impaired through application of the
exclusive concurrent jurisdiction rule where concurrent PAGA
lawsuits have been filed and the later-filed suit alleges, in the
words of the plaintiffs who filed it, “virtually the same facts and
Labor Code violations on behalf of thousands of overlapping
aggrieved employees.”
In Tan, the defendant filed a motion to dismiss a PAGA
claim under Federal Rule of Civil Procedure 12(b)(6) (Rule
12(b)(6)) for failure to state a claim, arguing that an earlier-filed
PAGA action in state court alleged the same claims for the same
employees. (Tan, supra, 171 F.Supp.3d at pp. 1011–1012.) The
court denied the motion because “[PAGA] is silent with respect to
whether an employee may bring a PAGA action when another
private plaintiff brings suit against the employer in a
representative capacity.” (Id. at p. 1012.) The Rule 12(b)(6)
motion in Tan posed the question of whether the plaintiff failed
to state a claim for want of statutory authorization to file. (Cf. In
re Plavix Marketing, Sales Practices and Products Liability
Litigation (No. II) (3d Cir. 2020) 974 F.3d 228, 232–233 [the first-
to-file bar in the federal False Claims Act is a matter of statutory
authorization, asking “ ‘ “whether [the relator] falls within the
class of plaintiffs whom Congress has authorized to sue,” ’ which

20
is another way to ask whether the statute gives it a cause of
action.”].)9 That question is distinct from the one asked here—
whether PAGA abrogated the policy-driven common law rule of
exclusive concurrent jurisdiction. We have determined it did not,
and neither Julian nor Tan compels a different conclusion.
Next, petitioners fail to show that the trial court
“ ‘ “exceeded the bounds of reason . . . .” ’ ’’ when it determined
that the countervailing policies raised by petitioners did not
outweigh the policies supporting application of the exclusive
concurrent jurisdiction rule in this case. (IT Corp. v. County of
Imperial (1983) 35 Cal.3d 63, 69; State Farm etc. Ins. Co. v.
Superior Court (1956) 47 Cal.2d 428, 432 [“Mandate lies to
control judicial discretion when that discretion has been
abused”]; see also Robbins v. Superior Court (1985) 38 Cal.3d
199, 205 [“Although mandamus does not generally lie to control
the exercise of judicial discretion, the writ will issue ‘where,
under the facts, that discretion can be exercised in only one
way’ ”].)10 The trial court recognized, as have we, that application

9 Whether a violation of the first-to-file rule under the
Federal False Claims Act is jurisdictional or bears only on the
merits of the relator’s action is a question that has divided the
federal circuits. (Compare United States ex rel. Hayes v. Allstate
Ins. Co. (2d Cir. 2017) 853 F.3d 80, 85–86 & In re Plavix
Marketing, Sales Practices and Products Liability Litigation,
supra, 974 F.3d at pp. 232–233 [not jurisdictional] with United
States ex rel. Carson v. Manor Care, Inc. (4th Cir. 2017) 851 F.3d
293, 303 [jurisdictional].)
10For purposes of this discussion, we will assume that
application of the rule may depend upon the balancing of policies.
(Childs v. Eltinge, supra, 29 Cal.App.3d at p. 854; Garamendi,

21
of the exclusive concurrent jurisdiction rule here did not vitiate
the purposes for which PAGA was enacted. It additionally
recognized that resolution of this case would duplicate court
efforts, waste resources, and potentially produce divergent
results. The trial court could reasonably conclude that the
policies giving rise to the exclusive concurrent jurisdiction rule
were not outweighed by those that drove PAGA’s enactment.
Indeed, petitioners themselves told the trial court below that
“[a]llowing piecemeal complex litigation against BevMo over the
same California Labor Code claims underlying plaintiffs’ PAGA
actions would waste both judicial and party resources, as well as
risk different outcomes based on the same facts.”
Petitioners advance two remaining arguments in support of
their petition—that application of the rule will promote reverse
auctions and that PAGA does not limit prosecution to the
plaintiff with the most sweeping causes of action. Their first
contention is inaccurate. The exclusive concurrent jurisdiction
rule applies to stay a subsequent suit. Defendants do not pick
and choose between plaintiffs when the rule applies. Moreover,
the possibility of a reverse auction is inherent in PAGA whenever
the LWDA authorizes multiple plaintiffs to sue; applying the
exclusive concurrent jurisdiction doctrine does not increase the
likelihood of a reverse auction. We emphasize that in any case
involving a proposed PAGA settlement, the trial court must
review the settlement for fairness and “scrutinize whether, in

supra, 20 Cal.App.4th at pp. 770, 775; BBBB Bonding Corp.,
supra, 73 Cal.App.5th at p. 374.)

22
resolving the action, a PAGA plaintiff has adequately represented
the state’s interests, and hence the public interest.” (Moniz v.
Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 89.) And although
there is no statute expressly governing objections by plaintiffs
pursuing other PAGA representative actions (id. at p. 79),
petitioners may seek to object to any proposed Paez settlement.
We have no reason to believe these mechanisms—along with a
statutory motion to vacate or set aside an approved settlement
(id. at p. 71)—will be insufficient to mitigate petitioners’
concerns.
In their final argument, petitioners seem to contend that
BevMo argued below that a stay of their suit was appropriate
because it was more narrowly tailored than Paez, and that
allowing a stay in this case would create a rule that the lawsuit
with the greatest number of claims proceeds, thus encouraging
frivolous pleading. But Petitioners do not present a convincing
argument that staying duplicative PAGA suits would lead to
frivolous filings or that such concerns outweigh the policies
supporting application of the rule.11
DISPOSITION
The petition for writ of mandate is denied. Real Party in
Interest shall recover costs in this proceeding. (Cal. Rules of
Court, rule 8.493(a).)

BROWN, J.

11Given our disposition, we need not address BevMo’s
argument that the trial court could have maintained the stay
under its inherent authority.

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WE CONCUR:

POLLAK, P. J.
STREETER, J.

Shaw et al. v. Superior Court (A163263)

24
Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Edward G. Weil

Counsel: Bryan Schwartz Law, Bryan J. Schwartz; Altshuler Berzon
LLP, Michael Rubin for Petitioners.

No appearance for Respondent.

Arnold & Porter Kaye Scholer LLP, Steven L. Mayer,
Dipanwita Deb Amar, Katelyn E. Rey for Real Party in
Interest.