Filed 10/17/22 Pote v. Handy Technologies CA2/7
Opinion after vacating opinion filed on 8/16/21
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PATRICK POTE, B302770
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC723965)
v.
HANDY TECHNOLOGIES,
INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, C. Edward Simpson, Judge. Affirmed.
Manatt, Phelps & Phillips, Robert H. Platt, Andrew L.
Satenberg and Benjamin G. Shatz for Defendant and Appellant.
Gibbs Law Group, Steven M. Tindall and Amanda M. Karl
for Plaintiff and Respondent.
_____________________________________
Handy Technologies, Inc. (Handy) appeals the denial of its
motion to compel arbitration on an individual (nonrepresentative)
basis of the claims alleged in Patrick Pote’s lawsuit under the
Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab.
Code, § 2698 et seq.). In our original opinion we affirmed the
superior court’s order based on Iskanian v. CLS Transportation
Los Angeles, LLC (2014) 59 Cal.4th 348, 360, 388-389 (Iskanian),
which primarily held the Federal Arbitration Act (FAA) (9 U.S.C.
§ 1 et seq.) did not preempt state law that prohibits waiver of
PAGA representative actions in an employment contract. After
the California Supreme Court denied Handy’s petition for review
(Pote v. Handy Technologies, Inc. (Nov. 10, 2021, S302770)), the
United States Supreme Court granted Handy’s petition for writ
of certiorari, vacated the judgment and ordered the case
remanded to this court for further consideration in light of its
decision in Viking River Cruises, Inc. v. Moriana (2022) 595 U.S.
___ [142 S.Ct. 1906] (Viking River), which held the FAA
preempted what Viking River characterized as Iskanian’s
secondary indivisibility rule, which precluded dividing an action
into an employee’s arbitrable “individual PAGA claim[s]” (defined
in Viking River to mean “claims based on code violations suffered
by the plaintiff”) and nonarbitrable nonindividual PAGA claims
premised on code violations suffered by other allegedly aggrieved
employees. (Viking River, at pp. 1916-1917, 1924.)
Viking River does not require reversal of the order denying
Handy’s motion to compel arbitration. Under Viking River state
courts cannot prohibit arbitration, based on the indivisibility
rule, of what the Supreme Court designated as an individual
PAGA claim if the parties have agreed to arbitrate those claims.
Here, however, the parties excluded all of Pote’s representative
2
claims for civil penalties (whether individual for violations Pote
suffered or nonindividual for violations suffered by other
allegedly aggrieved employees) from arbitration: The arbitration
agreement expressly provides no representative claim of any sort,
specifically including any representative claim for civil penalties,
is subject to arbitration. Although the agreement provides for
arbitration of claims for recovery of underpaid wages, there is
nothing here to arbitrate because Pote has agreed to dismiss that
portion of his complaint seeking to recover unpaid or underpaid
wages.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pote’s Complaint and First Amended Complaint
On October 3, 2018 Pote filed a complaint and on
November 19, 2018 the operative first amended complaint
alleging causes of action against Handy under PAGA and for
declaratory relief. Pote alleged he had been employed as a house
cleaner for Handy since April 2018; he and other service
providers cleaned and repaired clients’ houses for flat rates per
job; and Handy’s flat rate payment policy resulted in Pote and
other providers not being paid for overtime, missed rest and meal
breaks, expenses and travel time to and between jobs in violation
of various Labor Code provisions. He sought civil penalties under
PAGA for those alleged Labor Code violations, which affected
Pote and other California service providers.
Pote also alleged that, at the time he was hired and as a
mandatory condition of his employment, Handy required him to
agree to a Service Professional Agreement containing provisions
purporting to prohibit the pursuit of a representative PAGA
action for underpaid wages in any forum. Pote sought a
declaration those provisions were void as against public policy.
3
2. Handy’s Motion To Compel Arbitration
On March 26, 2019 Handy moved to compel arbitration and
to stay litigation. Contending Iskanian was irreconcilable with
the subsequent United States Supreme Court decision in Epic
Systems Corp. v. Lewis (2018) 584 U.S. ___ [138 S.Ct. 1612],
Handy argued the parties had entered into a mutual agreement
to arbitrate that was valid and enforceable and required Pote’s
claims for “victim-specific unpaid wages”1 under PAGA and for
PAGA civil penalties to be arbitrated on an individual
(nonrepresentative) basis. With regard to the PAGA civil
penalties claims, Handy asserted it was a “legal fiction” that
those claims belonged to the State of California and the civil
penalties claims could thus be arbitrated in a nonrepresentative
manner apart from the State. Handy further requested that, if
the court were to decline to enforce the representative action
waiver in its entirety, the court sever and stay Pote’s claims for
PAGA civil penalties, which Handy expressly contrasted with
Pote’s claims for victim-specific relief on behalf of himself and
other allegedly aggrieved employees, until the completion of
arbitration on the victim-specific claims.
In support of its motion Handy filed the declaration of
Bailey Carson, a Handy senior vice-president. Carson averred
Handy was a New York-based technology company offering an
online platform allowing individuals seeking cleaning services to
connect with professionals providing those services. Gaining
access to Handy’s platform required a cleaning professional to
agree to Handy’s Independent Contractor Acknowledgment
(Acknowledgment) and the Service Professional Agreement.
1 We omit unnecessary underlining of text.
4
Carson’s review of Handy’s business records showed that on
April 9, 2018 Pote had logged into Handy’s application for mobile
devices. By checking boxes and selecting “Confirm” or “Accept”
buttons, Pote accepted the Acknowledgment, which was
comprised of nine bullet points, and the Service Professional
Agreement.
Carson’s declaration included images of what he described
as screenshots depicting how the Acknowledgment’s nine bullet
points appeared in Handy’s mobile device application. One of the
nine bullet points stated, “I understand that the Handy Service
Professional Agreement contains a Mandatory and Exclusive
Arbitration provision which requires Handy and me to submit
disputes to final and binding arbitration.”
Carson explained Pote could not have gained access to
Handy’s online platform without checking the box that stated, “I
agree to the Service Professional Agreement” or without selecting
the “Accept” button in Handy’s mobile device application. Carson
declared Pote had accepted the Service Professional Agreement
on April 9, 2018 and attached the agreement as an exhibit to his
declaration.
Section 12.2 of the April 9, 2018 agreement, titled “Mutual
Arbitration Provision,” provided, in its introductory paragraphs
(in typeface containing all capital letters), “Handy and Service
Professional mutually agree to waive their respective rights to
the resolution of disputes in a court of law by a judge or jury and
agree to resolve any dispute in arbitration . . . . [¶] . . . [¶]
Except as expressly provided below, all disputes and/or claims
between you and Handy shall be exclusively resolved in binding
5
arbitration on an individual basis; class arbitrations and class
actions are not permitted.”2
Section 12.2(c), titled “Representative Action Waiver—
Please Read,” provided, “Handy and Service Professional
mutually agree that by entering into this agreement to arbitrate,
both waive their right to have any dispute or claim brought,
heard or arbitrated as a representative action, including but not
limited to, a private attorney general action, and an arbitrator
shall not have any authority to arbitrate a representative action,
including, but not limited to, a private attorney general action
(‘Representative Action Waiver’). Private attorney general
representative actions brought on behalf of the state under the
California Labor Code are not arbitrable, not within the scope of
this Agreement and may be maintained in a court of law, but any
claim brought by Service Professional for recovery of underpaid
wages (as opposed to representative claims for civil penalties)
under the California Labor Code shall be arbitrable, and must be
brought, if at all, on an individual basis in arbitration as set forth
in this Mutual Arbitration Provision.”
Carson also explained, when Handy changed the
Acknowledgement or Service Professional Agreement, the service
professional had to confirm and accept the new terms in Handy’s
mobile application. On October 26, 2018 Pote accepted updated
versions of the Acknowledgment and the Service Professional
Agreement.
Carson stated the October 26, 2018 agreement was
“substantially similar” to the April 9, 2018 agreement, with
2 The Mutual Arbitration Provision also stated it was
governed by the FAA and survived termination of the agreement.
6
“minor changes” to the arbitration provision. The referenced
excerpts of section 12.2’s introductory paragraphs remained the
same. As for section 12.2(c), containing the Representative
Action Waiver, the entire paragraph now read, “Handy and
Service Professional mutually agree that by entering into this
agreement to arbitrate, both waive their right to have any
dispute or claim brought, heard or arbitrated as a representative
action, and an arbitrator shall not have any authority to arbitrate
a representative action (‘Representative Action Waiver’).
Notwithstanding the foregoing, private attorney general
representative actions brought prior to the effective date of this
Agreement on behalf of the state under the California Labor Code
are not arbitrable, not within the scope of this Agreement and
may be maintained in a court of law, but any claim brought by
Service Professional for recovery of underpaid wages (as opposed
to representative claims for civil penalties) under the California
Labor Code shall be arbitrable, and must be brought, if at all, on
an individual basis in arbitration as set forth in this Mutual
Arbitration Provision.”
3. Pote’s Opposition and Handy’s Reply
On April 8, 2019 Pote filed an opposition to Handy’s motion
to compel arbitration, arguing the Representative Action Waiver
was unenforceable under Iskanian, supra, 59 Cal.4th 348. Pote
also asserted that Handy had mistakenly construed his PAGA
claims as seeking damages for unpaid wages in addition to civil
penalties under PAGA, which would be apportioned, as with all
PAGA penalties, 75 percent to the California Labor and
Workforce Development Agency (LWDA) and 25 percent to the
employees. In his supporting declaration Pote’s attorney averred
Pote was limiting his claims to PAGA representative claims
7
seeking civil penalties, including purported civil penalties in the
amount of unpaid wages under Labor Code section 558,3 on
behalf of the State of California.
On October 10, 2019 Pote filed a notice of new authority
stating that, on September 12, 2019, the California Supreme
Court decided ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.
In that case the Supreme Court addressed Labor Code
section 558, which before enactment of PAGA gave the Labor
Commissioner authority to issue overtime violation citations for a
civil penalty consisting of a fixed statutory amount ($50 for the
first violation; $100 for subsequent violations) for each underpaid
employee for each pay period an employee had been underpaid
“in addition to an amount sufficient to recover underpaid wages”
(see footnote 3, above). The ZB Court held the civil penalties a
private plaintiff could seek through a PAGA action did not
include underpaid wages: “[T]his amount—understood in
context—is not a civil penalty that a private citizen has authority
3 Labor Code section 558, subdivision (a), provides an
employer guilty of an overtime violation is “subject to a civil
penalty as follows: [¶] (1) for any initial violation, fifty dollars
($50) for each underpaid employee for each pay period for which
the employee was underpaid in addition to an amount sufficient
to recover underpaid wages. [¶] (2) For each subsequent violation,
one hundred dollars ($100) for each underpaid employee for each
pay period for which the employee was underpaid in addition to
an amount sufficient to recover underpaid wages.”
Pote’s cause of action for PAGA civil penalties as alleged in
his first amended complaint sought recovery of both fixed
statutory amounts and amounts sufficient to recover unpaid
wages for Handy’s alleged Labor Code violations as to Pote and
other aggrieved service providers.
8
to collect through the PAGA.” (ZB, at p. 182.) Pote’s notice
explained, by virtue of this new authority, Pote no longer sought
to recover unpaid wages as part of his representative PAGA
action and agreed to dismiss that portion of his complaint.
On October 10, 2019 Handy filed its reply in support of its
motion. Handy argued, even assuming Iskanian, supra,
59 Cal.4th 348 remained good law, the case only held a
predispute waiver of the right to assert a PAGA claim on a
representative basis was unenforceable but the Representative
Action Waiver was a postdispute waiver: Pote, while represented
by counsel, agreed to the Representative Action Waiver on
October 26, 2018 after Pote had initiated the dispute, as required
by Labor Code section 2699.3, by notifying the LWDA and Handy
in September 2018 of Handy’s alleged violations of specific
provisions of the Labor Code and of Pote’s intent to file an action
under PAGA against Handy; and Pote reaffirmed his assent to
that waiver on November 25, 2018 (the expiration date under the
October 26, 2018 agreement of a 30-day window to opt out of the
Mutual Arbitration Provision).4 Handy also argued, even if the
waiver were determined to be unenforceable as to the civil
penalties, Pote’s first amended complaint alleged claims for
victim-specific unpaid wages as to Pote and other aggrieved
employees that were subject to individual arbitration regardless
of whether Pote had labeled them PAGA civil penalty claims:
The California Supreme Court, Handy asserted, had determined
unpaid wages were not recoverable as PAGA civil penalties.
4 In the trial court the parties agreed Pote first pleaded a
PAGA claim in his November 19, 2018 first amended complaint.
The original complaint is not included in the record on appeal.
9
4. The Superior Court’s Order
The superior court denied Handy’s motion. Stating the
parties’ main disagreement was whether the Representative
Action Waiver was enforceable, the court concluded Epic Systems
Corp. v. Lewis, supra, 138 S.Ct. 1612 did not invalidate the
holding in Iskanian, supra, 59 Cal.4th 348 that an employee’s
right to bring a representative PAGA action is unwaivable.
Accordingly, the court ruled, under Iskanian the Representative
Action Waiver was unenforceable. The court declined to consider
Handy’s contention the Representative Action Waiver was a
postdispute waiver and thus enforceable because Handy had
raised that argument for the first time in its reply brief. Finally,
the court rejected Handy’s argument that Pote’s PAGA claims for
damages in the form of unpaid wages on behalf of affected
workers should be compelled to individual arbitration, finding
Pote had not brought any such victim-specific claims.
DISCUSSION
1. Iskanian
Iskanian concerned an employee who sought to bring a
class action on behalf of himself and similarly situated employees
for the employer’s alleged failure to compensate its employees for
overtime and meal and rest breaks. The employee had entered
into an arbitration agreement waiving the right to class actions.
The Iskanian Court held state law precluding enforcement of
such class action waivers on the grounds of unconscionability or
public policy was preempted by the FAA. (Iskanian, supra,
59 Cal.4th at pp. 359-360.)
The arbitration agreement, however, required the waiver of
not only class actions but also “representative actions”; and the
10
employee also sought to bring a representative action under
PAGA, which “authorizes 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.” (Iskanian, supra, 59 Cal.4th at pp. 378, 360.) An
employment agreement compelling the waiver of representative
claims under PAGA, the Supreme Court held, “is contrary to
public policy and unenforceable as a matter of state law,” and the
FAA does not preempt such law. (Id. at pp. 360, 384.)
The Court rejected the argument the FAA preempts the
state law rule against PAGA waivers because “the FAA aims to
ensure an efficient forum for the resolution of private disputes,
whereas a PAGA action is a dispute between an employer and the
state [LWDA].” (Iskanian, supra, 59 Cal.4th at p. 384.) Relying
on the statutory text and the legislative history of the FAA, the
Court stated, “There is no indication that the FAA was intended
to govern disputes between the government in its law
enforcement capacity and private individuals.” (Id. at p. 385.)
“Simply put, a PAGA claim lies outside the FAA’s coverage
because it is not a dispute between an employer and an employee
arising out of their contractual relationship. It is a dispute
between an employer and the state, which alleges directly or
through its agents—either the [LWDA] or aggrieved employees—
that the employer has violated the Labor Code. . . . ‘[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.’”
11
Applying the rationale of Iskanian in ZB, N.A. v. Superior
Court, supra, 8 Cal.5th 175, the Supreme Court held an
employee’s predispute agreement to individually arbitrate claims
“is unenforceable where it blocks an employee’s PAGA claim from
proceeding” (id. at p. 198) and, quoting Iskanian, held in Kim v.
Reins International California, Inc. (2020) 9 Cal.5th 73, 87,
“[t]here is no individual component to a PAGA action because
‘“every PAGA action . . . is a representative action on behalf of the
state.”’”
2. Viking River
When hired as a sales representative by Viking River
Cruises, Angie Moriana agreed to submit any disputes arising
out of her employment to arbitration. (Viking River, supra,
142 S.Ct. at p. 1916.) The parties’ agreement provided no dispute
could be brought “as a class, collective, or representative PAGA
action.” (Ibid.) As described by the United States Supreme
Court, the agreement “also contained a severability clause
specifying that if the waiver was found invalid, any class,
collective, representative, or PAGA action would presumptively
be litigated in court. But under that severability clause, if any
‘portion’ of the waiver remained valid, it would be ‘enforced in
arbitration.’” (Ibid.)
After leaving the company, Moriana sued Viking River
alleging a single PAGA cause of action for various Labor Code
violations, including a claim that Viking River had failed to pay
her final wages in a timely manner and had violated minimum
wage, overtime and meal and rest break provisions adversely
affecting other employees. (Viking River, supra, 142 S.Ct. at
p. 1916.) Viking River moved to compel arbitration of Moriana’s
‘individual’ PAGA claim—that is, the claim that arose from the
12
violation she suffered—and to dismiss the balance of her PAGA
claim. The trial court denied that motion. Our colleagues in
Division Three of this court affirmed, holding that categorical
waivers of PAGA standing are contrary to state policy and that a
PAGA claim cannot be split into an arbitrable individual claim
and nonarbitrable “representative” claim. (Ibid.)
Reversing the court of appeal’s judgment, the United States
Supreme Court first posited that the word “representative” when
used in connection with a PAGA action has two meanings.
(Viking River, supra, 142 S.Ct. at p. 1916.) “In the first sense,
PAGA actions are ‘representative’ in that they are brought by
employees acting as representatives—that is, as agents or
proxies—of the State. But PAGA claims are also called
‘representative’ when they are predicated on code violations
sustained by other employees. In the first sense, ‘“every PAGA
action is . . . representative”’ and ‘[t]here is no individual
component to a PAGA action,’ [citation], because every PAGA
claim is asserted in a representative capacity. But when the
word ‘representative’ is used in the second way, it makes sense to
distinguish ‘individual’ PAGA claims, which are premised on
Labor Code violations actually sustained by the plaintiff, from
‘representative’ (or perhaps quasi-representative) PAGA claims
arising out of events involving other employees.” (Ibid.)
Using the term “individual PAGA claim” to refer to claims
based on Labor Code violations allegedly suffered by the plaintiff,
the Supreme Court explained the Iskanian rule, by prohibiting
bifurcation of a PAGA action into individual and representative
claims, precluded parties from agreeing to arbitrate claims based
on personally sustained violations: An employer was either
compelled to withhold the individual claim from arbitration or
13
coerced into accepting arbitration of all other PAGA claims in the
same arbitral proceeding. That restriction on the freedom of the
parties to determine the issues subject to arbitration and the
rules by which they will arbitrate, the Supreme Court held,
violated the FAA. Accordingly, “the FAA preempts the rule of
Iskanian insofar as it precludes division of PAGA actions into
individual and non-individual claims through an agreement to
arbitrate.” (Viking River, supra, 142 S.Ct. at p. 1924.)
Significantly, however, the Supreme Court also held the
rule of Iskanian invalidating wholesale waivers of PAGA claims
(that is, agreements that purported to bar an employee from
bringing a representative claim in any forum) was not preempted
by the FAA. (Id. at pp. 1924-1925.) Accordingly, that portion of
the Viking River arbitration agreement remained unenforceable.
Turning its focus to the severability provision in the
arbitration agreement, the Supreme Court concluded, “[T]he
severability clause in the agreement provides that if the waiver
provision is invalid in some respect, any ‘portion’ of the waiver
that remains valid must still be ‘enforced in arbitration.’ Based
on this clause, Viking was entitled to enforce the agreement
insofar as it mandated arbitration of Moriana’s individual PAGA
claim. The lower courts refused to do so based on the rule that
PAGA actions cannot be divided into individual and non-
individual claims. Under our holding, that rule is preempted, so
Viking is entitled to compel arbitration of Moriana’s individual
claim.” (Id. at p. 1925.)5
5 Section 12.2(k) of Handy’s Service Professional Agreement
contains a similar severability provision, stating, if any portion of
the Representative Action Waiver is deemed unenforceable, the
14
3. The Parties’ Agreement Did Not Provide for Arbitration
of Pote’s PAGA Claims Seeking Recovery of Civil
Penalties
Under Viking River, if a plaintiff files a PAGA action based
in part on Labor Code violations that he or she has actually
suffered, the plaintiff can be compelled to arbitrate the
“individual PAGA claim” if the parties’ agreement to arbitrate
includes such claims. That was the situation in Viking River,
where Moriana had agreed to arbitrate on an individual basis
any dispute arising out of her employment, a broad agreement
that included her individual PAGA claim once the Supreme Court
held Iskanian’s anti-divisibility rule was preempted by the FAA
and applied the severability clause to the invalid provision
waiving the right to bring a representative action.
Here, in contrast, although Pote generally agreed all
disputes with Handy would be resolved in binding arbitration on
an individual basis, the April 9 and October 26, 2018 iterations of
the Service Professional Agreement prefaced this otherwise all-
encompassing provision by stating, “Except as expressly provided
below . . . .” And “expressly provided below” in section 12.2(c), the
Representative Action Waiver, was a clear statement in both
iterations of the agreement, albeit in slightly different language,
that an arbitrator had no authority to arbitrate representative
actions, and that section expressly distinguished as arbitrable on
an individual basis claims for underpaid wages from
representative claims for civil penalties. Indeed, Handy in the
trial court requested as alternative relief that, if the court were to
decline to enforce the Representative Action Waiver in its
portion that is valid and enforceable “shall be enforced in
arbitration.”
15
entirety,6 the court should sever and stay Pote’s representative
claims for PAGA civil penalties—which Handy expressly
contrasted with claims for victim-specific underpaid wages
suffered by Pote and other aggrieved employees—until the
completion of arbitration of any victim-specific claims.
Pote has expressly and repeatedly stated he is no longer
asserting any claim for unpaid (and, necessarily, underpaid)
wages on behalf of himself or any other aggrieved employee. He
seeks only civil penalties under PAGA. Unlike in Viking River,
here there is no agreement by Pote and Handy to arbitrate those
remaining claims for civil penalties, or any portion of them, on
any basis. (See Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“‘“a
party cannot be required to submit to arbitration any dispute
which he [or she] has not agreed so to submit”’”]; see also Viking
River, supra, 142 S.Ct. at p. 1918 [the first principle of FAA
jurisprudence is that arbitration is strictly a matter of consent].) 7
Because there is nothing to arbitrate, Handy’s petition to compel
arbitration was properly denied.
6 As discussed, the United States Supreme Court in Viking
River, supra, 142 S.Ct. 1906 did not abrogate existing state law
regarding the unenforceability under California public policy of
purported waivers of the right to bring a representative action in
any forum, such as the Representative Action Waiver in the case
at bar.
7 Whether an arbitration agreement applies to a controversy
is a question of law to which we apply our independent judgment
in the absence of conflicting extrinsic evidence. (Ahern v. Asset
Management Consultants, Inc. (2022) 74 Cal.App.5th 675, 687;
see Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 497;
Jones v. Jacobson (2011) 195 Cal.App.4th 1, 12.)
16
Pointing to the arbitration opt-out provision
(section 12.2 (i)) in the Service Professional Agreement, Handy
also argues Pote was not compelled as a condition of his
employment to accept Handy’s arbitration provision. That
argument is similarly unavailing: As discussed, the agreement
did not provide for arbitration of Pote’s PAGA civil penalties
claims. No opt out was required.
Moreover, even if there is merit to Handy’s contention that
the Representative Action Waiver is enforceable in its entirety,
precluding Pote’s claims for PAGA civil penalties,8 wholesale
enforcement of the waiver would not, by its terms, require
individual arbitration of representative actions falling within its
scope. Enforcing the waiver in its entirety would bar Pote’s
entire action, which asserts only PAGA claims on behalf of the
State as the real party in interest. (See Viking River, supra,
142 S.Ct. at pp. 1914, 1916; Kim v. Reins International
California, Inc., supra, 9 Cal.5th at pp. 86-87). Nothing would be
left to arbitrate.
8 As discussed, Handy has argued the Representative Action
Waiver in its October 26, 2018 arbitration agreement with Pote
was a “postdispute” waiver of the right to bring a PAGA action
and thus enforceable because Iskanian’s holding was limited to
predispute waivers.
17
DISPOSITION
The order denying Handy’s motion to compel arbitration is
affirmed. The parties are to bear their own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
18