Filed 2/2/23 Modified and Certified for Pub. 2/24/23 (order attached)
Opinion following transfer from Supreme Court
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TRICIA GALARSA, F082404
Plaintiff and Respondent, (Super. Ct. No. BCV-19-102504)
v. OPINION
DOLGEN CALIFORNIA, LLC,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Thomas S. Clark,
Judge.
McGuire Woods, Mathew C. Kane, Amy E. Beverlin, Sabrina A. Beldner and
Travis Gunn for Defendant and Appellant.
Robins Kaplan, Clarkson Law Firm, and Glenn A. Danas; The Bainer Law Firm,
and Matthew R. Bainer for Plaintiff and Respondent.
-ooOoo-
Plaintiff Tricia Galarsa sued her former employer, Dolgen California, LLC (Dollar
General), to recover civil penalties under the Private Attorneys General Act of 2004
* Before Franson, Acting P. J., Peña, J. and Snauffer, J.
(PAGA; Lab. Code, § 2698 et seq.)1 for various Labor Code violations suffered by her or
by other employees. Dollar General moved to compel arbitration, which the superior
court denied. In November 2021, we affirmed the trial court’s order. That affirmance
was vacated by the United States Supreme Court when it granted Dollar General’s
petition for writ of certiorari and remanded the case for further consideration in light of
Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___ [142 S.Ct. 1906] (Viking
River).
First, we conclude Viking River and the Federal Arbitration Act (FAA; 9 U.S.C.
§ 1 et seq.) do not invalidate the rule of California law that a provision in an arbitration
agreement purporting to waive an employee’s right to pursue representative actions is not
enforceable as to representative claims pursued under PAGA. Second, the severability
clause in the arbitration agreement allows the unenforceable waiver provision to be
stricken from the arbitration agreement. Third, we interpret the surviving provisions of
the agreement to require arbitration of the PAGA claims that seek to recover civil
penalties for Labor Code violations suffered by plaintiff. Consequently, those claims
must be sent to arbitration in accordance with the principles established by Viking River
and the FAA.
We further conclude the PAGA claims seeking to recover civil penalties for Labor
Code violations suffered by employees other than plaintiff may be pursued by plaintiff in
court. Thus, we disagree with the United States Supreme Court’s conclusion that
California law requires the dismissal of those claims. More specifically, we conclude
plaintiff is an aggrieved employee with PAGA standing and the general rule against
splitting a cause of action does not apply to the two types of PAGA claims.
Therefore, the order denying Dollar General’s motion to compel arbitration is
reversed in part and affirmed in part.
1 Unlabeled statutory references are to the Labor Code.
2.
FACTS
In March 2016, plaintiff applied for employment with Dolgen California, LLC
(Dollar General), a wholly owned subsidiary of Dollar General Corporation. As part of
the application and hiring process, plaintiff accessed Dollar General’s Express Hiring
system, which allows persons to receive, review, and acknowledge documents related to
their hiring and employment. On March 30, 2016, plaintiff electronically signed Dollar
General’s arbitration agreement by typing her initials into the text box next to the words
“My Initials” and dating the form. She also marked a box stating she agreed to the terms
of the arbitration agreement and understood that by checking the box, both Dollar
General and she would be bound by the agreement’s terms. Plaintiff did not opt out of
arbitration. The arbitration agreement stated:
“Dolgen California LLC (‘Dollar General’) has a process for resolving
employment related legal disputes with employees that involves
binding arbitration. This Dollar General Employee Arbitration
Agreement (‘Agreement’) describes that process and constitutes a
mutually binding agreement between you and Dollar General, subject
to opt out rights described at the end of this Agreement.
“You agree that, with the exception of certain excluded claims described
below, any legal claims or disputes that you may have against Dollar
General … arising out of your employment with Dollar General or
termination of employment with Dollar General (‘Covered Claim’ or
‘Covered Claims’) will be addressed in the manner described in this
Agreement. You also understand that any Covered Claims that Dollar
General may have against you related to your employment will be
addressed in the manner described in this Agreement.
“Class and Collective Action Waiver: You and Dollar General may not
assert any class action, collective action, or representative action claims
in any arbitration pursuant to the Agreement or in any other forum.
You and Dollar General may bring individual claims or multi-plaintiff
claims joining together not more than three plaintiffs, provided that
the claims are not asserted as a class, collective or representative
action. Non-representative, multi-plaintiff arbitrations (up to the
three-plaintiff limit) may only be filed if each of the plaintiff’s claims:
(1) arises out of the same transaction, occurrence, or series of
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transactions or occurrences; (2) arises out of the same work location;
and (3) presents a common question of law or fact. A challenge to a
multi-plaintiff action can be initiated by any party by filing a motion to
dismiss or sever one or more parties. The arbitrator shall rule upon
the motion to dismiss or sever based upon the standards set forth in
this Paragraph. NOTE: This waiver does not apply to claims under
the National Labor Relations Act.”
The arbitration agreement stated its procedures “will be the exclusive means of
resolving Covered Claims relating to or arising out of your employment or termination of
employment with Dollar General.” The covered claims included alleged violations of
wage and hour laws and alleged violations of any other state or federal laws.
The agreement contained the following severability clause: “If any parts of this
Agreement are found to be invalid, illegal, or unenforceable, the validity, legality, and/or
enforceability of the remaining provisions will not be affected by that decision, and any
invalid, illegal or unenforceable provisions shall be modified or stricken.”
In April 2016, plaintiff began working for Dollar General as an hourly-paid
assistant manager. Her employment ended in January 2017.
In October 2017, plaintiff’s attorney mailed a written notice to the Labor and
Workforce Development Agency and defendant pursuant to section 2699.3. Over 65
days passed without the agency responding to plaintiff’s notice.
PROCEEDINGS
In February 2018, plaintiff filed a complaint seeking civil penalties under PAGA
for violations of the Labor Code. In May 2018, plaintiff filed a first amended complaint
for civil penalties under PAGA based on alleged violations of Labor Code sections 201,
202, 203, 204, 226, subdivision (a), 226.7, 510, 512, 1174, subdivision (d), 1194, 1197,
1197.1, and 1198. In June 2019, the parties stipulated to the transfer of the action from
Contra Costa County Superior Court to Kern County Superior Court.
In July 2020, Dollar General filed a motion to compel arbitration and stay the
proceeding pending completion of arbitration. The motion was supported by two
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declarations. Dollar General argued that plaintiff must individually arbitrate the alleged
wage and hour violations that involved her, whether cast as a PAGA claim or otherwise.
In September 2020, after hearing arguments, the superior court denied the motion.
The court’s minute order stated (1) an employee’s right to bring a PAGA representative
claim could not be waived, (2) the rule against waivers was not preempted by federal law,
and (3) a PAGA claim could not be split into arbitrable individual claims and
nonarbitrable representative claims. Dollar General appealed.
In October 2021, the appeal was fully briefed. The parties waived oral argument.
In November 2021, this court affirmed the order denying the motion to compel
arbitration. Subsequently, the California Supreme Court denied Dollar General’s petition
for review.
In October 2022, the United States Supreme Court notified this court that it had
granted Dollar General’s petition for writ of certiorari, vacated our judgment, and
remanded the case for further consideration in light of Viking River, supra, 142 S.Ct.
1906. On November 4, 2022, the mandate and judgment transferring the matter back to
this court were received from the United States Supreme Court and we issued an order
advising the parties that supplemental briefs were due by November 21, 2022.
After obtaining an extension, the parties filed their supplemental briefs on
December 21, 2022. No responding supplement briefs were filed and, by rule, the matter
was submitted on January 9, 2023.
DISCUSSION
I. DEFINING TWO TYPES OF CLAIMS AUTHORIZED BY PAGA
Claims authorized by PAGA have been defined and labeled in a variety of ways.
The definitions and labels have at times hindered rather than aided the analysis of the
legal issues and the establishment of clear precedent. For instance, the United States
Supreme Court referred to representative PAGA claims and stated:
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“PAGA’s unique features have prompted the development of an entire
vocabulary unique to the statute, but the details, it seems, are still being
worked out. An unfortunate feature of this lexicon is that it tends to use the
word “representative” in two distinct ways .…” (Viking River, supra, 142
S.Ct. at p. 1916.)
In one sense, “PAGA actions are ‘representative’ in that they are brought by
employees acting as representatives—that is, as agents or proxies—of the State.” (Viking
River, supra, 142 S.Ct. at p. 1916.) In this sense, every PAGA action is representative
“because every PAGA claim is asserted in a representative capacity.” (Ibid.) In the
second sense, the word “representative” is used to distinguish so-called “individual”
PAGA claims, which are based on Labor Code violations sustained by the plaintiff, from
“representative” PAGA claims, which are based on Labor Code violations involving
employees other than the plaintiff. (Viking River, supra, at p. 1916.) The United States
Supreme Court stated it would endeavor to be clear in its use of the term “representative”
and would use the phrase “ ‘individual PAGA claim’ to refer to claims based on code
violations suffered by the plaintiff.” (Ibid.) In addition, the court used the term “non-
individual claims” without explicitly defining it (id. at pp. 1924, 1925), but the opinion
readily implies such claims are representative claims pursued by the plaintiff and based
on Labor Code violations suffered by employees other than the plaintiff.
The United States Supreme Court’s efforts, such as they were, did not achieve the
desired clarity. The court’s terminology was criticized by Division Two of the Fourth
District:
“What the Supreme Court called, as shorthand, an ‘individual PAGA claim’
is not actually a PAGA claim at all. It would exist even if PAGA had never
been enacted. It is what we are calling, more accurately, an individual
Labor Code claim.” (Gavriiloglou v. Prime Healthcare Management, Inc.
(2022) 83 Cal.App.5th 595, 605.)
Here, we attempt to break with the past and the problems of using labels that can
be interpreted to mean different things.
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First, this opinion uses the term “PAGA claim” to mean a claim for a civil penalty
imposed by, or recoverable under, PAGA and pursued by an employee as the
representative of the State of California—that is, “as the proxy or agent of the state’s
labor law enforcement agencies.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.)
As a result, a “PAGA action” usually involves many “PAGA claims” and each claim
involves a Labor Code violation and an associated civil penalty. Under PAGA, “civil
penalty” is a term of art limited to a monetary recovery that is distributed 75 percent to
the Labor and Workforce Development Agency and 25 percent to the employee
aggrieved by the Labor Code violation. (Esparza v. KS Industries, L.P. (2017) 13
Cal.App.5th 1228, 1234; see § 2699, subd. (i).) Thus, if recovered funds (such as unpaid
wages) are not subject to the 75-25 split, they were not recovered on a “PAGA claim.”
Second, this opinion divides PAGA claims into two types and designates them
“A” and “O.” These designations allow us to avoid the imprecision of stating PAGA
claims have “individual and representative components” (Kim v. Reins International
California, Inc. (2020) 9 Cal.5th 73, 88 (Kim)) or describing the two types as “individual
and non-individual claims” (Viking River, supra, 142 S.Ct. at p. 1924). Like the United
States Supreme Court, we are reluctant to use the word “representative” to describe a
particular type of PAGA claim because “[a]ll PAGA claims are ‘representative’ actions
in the sense that they are brought on the state’s behalf.” (ZB, N.A. v. Superior Court
(2019) 8 Cal.5th 175, 185 (ZB, N.A.); see Iskanian v. CLS Transportation Los Angeles,
LLC (2014) 59 Cal.4th 348, 387 (Iskanian).)
“Type A” is used for a claim seeking to recover a civil penalty imposed because of
a Labor Code violation suffered by the plaintiff, which civil penalty, if recovered, will be
distributed 75 percent to the Labor and Workforce Development Agency and 25 percent
to the plaintiff as the employee aggrieved by the violation pursuant to section 2699,
subdivision (i). “A” is a convenient designation because this type of PAGA claim will be
7.
ordered to arbitration if it is covered by an arbitration agreement subject to the FAA.
(Viking River, supra, 142 S.Ct. at p. 1925.)
“Type O” is used for a claim seeking to recover a civil penalty imposed because of
a Labor Code violation suffered by an employee other than the plaintiff. Pursuant to
section 2699, subdivision (i), that civil penalty, if recovered, will be split 75-25 between
Labor and Workforce Development Agency and the employee aggrieved by the violation.
This opinion concludes Type O claims, unlike Type A claims, are not subject to
arbitration under a predispute arbitration agreement. The “O” is taken from the word
“other” and indicates this type of claim involves a Labor Code violation suffered by an
employee other than the plaintiff.
We emphasize certain aspects of the foregoing definitions by noting that a claim is
a PAGA claim (either Type A or Type O) only if, before the enactment of PAGA, the
civil penalties sought could be enforced only by the state’s labor law enforcement
agencies. (ZB, N.A., supra, 8 Cal.5th at p. 185.) Furthermore, Type A and Type O
claims exclude all claims seeking restitution of unpaid wages or any other remedy that is
not a civil penalty subject to the 75-25 split contained in section 2699, subdivision (i).
II. WAIVER OF REPRESENTATIVE CLAIMS WAS INVALID
In Iskanian, supra, 59 Cal.4th 348, the California Supreme Court concluded that
“an arbitration agreement requiring an employee as a condition of employment to give up
the right to bring representative PAGA actions in any forum is contrary to public policy.”
(Id. at p. 360.)
The United States Supreme Court addressed the foregoing principle of California
law by concluding the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) “preempts the
rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-
individual claims through an agreement to arbitrate. This holding compels reversal in
this case. The agreement between Viking and Moriana purported to waive
8.
‘representative’ PAGA claims. Under Iskanian, this provision was invalid if construed as
a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is
not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in
that manner.” (Viking River, supra, 142 S.Ct. at pp. 1924–1925.)
Accordingly, we conclude the rule precluding the waiver of the right to bring a
representative action under PAGA is an aspect of Iskanian that is not preempted by
federal law and remains good law. Accordingly, Iskanian’s anti-waiver rule invalidates
the provision in Dollar General’s arbitration agreement stating that the employee “may
not assert any … representative action claims in any arbitration pursuant to the
Agreement or in any other forum.”
III. SEVERING THE INVALID WAIVER OF REPRESENTATIVE CLAIMS
We next consider how the severability clause contained in Dollar General’s
arbitration agreement applies to the invalid provisions purportedly waiving the
employee’s right to bring representative actions. Severability also was addressed in
Viking River because the employer’s arbitration agreement contained a similar clause.
The United States Supreme Court stated that “the 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.” (Viking River, supra, 142 S.Ct. at p. 1925.)
Thus, Viking River demonstrates that an invalid waiver of representative claims
may be severed from the remainder of an arbitration agreement. Pursuant to the
severability clause in Dollar General’s arbitration agreement, we strike (i.e., sever) the
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invalid part of the agreement stating plaintiff may not assert any representative action
claims in arbitration or in any other forum.
IV. INTERPRETING THE REMAINDER OF THE ARBITRATION AGREEMENT
Having struck that language from the agreement, we consider whether the Type A
or Type O claims being pursued by plaintiff fall within the scope of the parties’
agreement to arbitrate. Dollar General’s arbitration provision is broadly worded,
covering any legal claims or disputes that the employee may have against Dollar General
arising out of the employee’s employment with Dollar General, “with the exception of
certain excluded claims described below.”
On the first issue of contract interpretation, we concluded the PAGA claims are
not among the “excluded claims described below” because the waiver of representative
action claims has been stricken. In other words, with the elimination of that waiver, the
PAGA claims do not qualify as “excluded claims described below.”
The second issue of contract interpretation involves the meaning of the surviving
contractual provisions, which includes the language requiring arbitration of disputes
arising out of the employee’s employment. That wording plainly covers the Type A
claims because the Labor Code violations allegedly suffered by plaintiff occurred as a
result of her employment and could not have occurred if she had not been employed by
Dollar General. (See Viking River, supra, 142 S.Ct. at p. 1919, fn. 4 [claims arose out of
the contractual relationship between the employer and employee].) In contrast, the
agreement to arbitrate does not cover the Type O claims because those claims do not
arise out of plaintiff’s employment with Dollar General. Instead, the Type O claims arise
out of other employee’s employment with Dollar General.
To summarize, we interpret the arbitration provision as requiring arbitration of
only the Type A claims being pursued by plaintiff.
10.
V. TYPE A CLAIMS MUST BE SENT TO ARBITRATION
Following the analysis adopted in Viking River, we consider whether the
agreement to arbitrate Type A claims is enforceable. The answer is “yes,” based on the
United States Supreme Court’s conclusion that under the FAA the employer was entitled
to enforce the arbitration agreement “insofar as it mandated arbitration of Moriana’s
individual PAGA claim.” (Viking River, supra, 142 S.Ct. at p. 1925.) The United States
Supreme Court noted that the lower courts had refused to require arbitration of that claim
“based on the rule that PAGA actions cannot be divided into individual and non-
individual claims. Under our holding, that rule is preempted, so [the employer] is entitled
to compel arbitration of Moriana’s individual claim.” (Ibid.)
In this case, plaintiff’s Type A claims are the equivalent of what the court
described as “Moriana’s individual PAGA claims” in that both seek civil penalties for
Labor Code violations suffered by Moriana or plaintiff, not violations suffered by other
aggrieved employees. Under the supremacy clause,2 this court is bound by the rule of
law established in Viking River. Consequently, Dollar General is entitled to compel
arbitration of plaintiff’s Type A claims.
VI. TYPE O CLAIMS NEED NOT BE DISMISSED
In part IV., ante, we interpreted the arbitration agreement and concluded it does
not cover plaintiff’s Type O claims. Because arbitration is strictly a matter of consent
(Viking River, supra, 142 S.Ct. at p. 1911; Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236), Dollar General’s motion to
compel arbitration must be denied as to plaintiff’s Type O claims. This conclusion
presents us with the following question: What becomes of the Type O claims? Plaintiff
2 The laws of the United States “shall be the supreme Law of the Land,”
notwithstanding anything to the contrary in the constitution or laws of any state. (U.S.
Const., art. VI, cl. 2.)
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contends she has the right to pursue those claims in court. Dollar General contends the
Type O claims must be dismissed, like the dismissal ordered in Viking River.
A. PAGA Standing
In Viking River, after the United States Supreme Court concluded the employer
was entitled to compel arbitration of the Type A claims, it addressed “what the lower
courts should have done with Moriana’s non-individual claims”—that is, her Type O
claims. (Viking River, supra, 142 S.Ct. at p. 1925.) The court referred to PAGA’s
standing requirement, cited subdivisions (a) and (c) of section 2699, and stated:
“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. See Kim, 9 Cal.5th at 90, 459
P.3d, at 1133 (‘PAGA’s standing requirement was meant to be a departure
from the “general public” ... standing originally allowed’ under other
California statutes). As a result, Moriana lacks statutory standing to
continue to maintain her [Type O] claims in court, and the correct course is
to dismiss [those] claims.” (Viking River, supra, 142 S.Ct. at p. 1925.)
Initially, we note that a federal court’s interpretation of California law is not
binding. (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 27, fn. 5.)
We also note the California Supreme Court has yet to decide the question.3
Our analysis of the standing question begins with the relevant statutory text.
Subdivision (a) of section 2699 provides in full:
3 In Adolph v. Uber Technologies, Inc. (Apr. 11, 2022, G059860) [nonpub. opn.]
[2022 WL 1073583, 2022 Cal.App.Unpub. Lexis 2170], review granted (July 20, 2022,
S274671), the California Supreme Court granted review to consider whether an aggrieved
employee who has been compelled to arbitrate Type A claims maintains statutory
standing to pursue Type O claims in court or in any other forum the parties agree is
suitable. (Adolph v. Uber Technologies, Inc. (2022) (Aug. 1, 2022, S274671) [2022 Cal.
Lexis 5021].) In November 2022, the parties had fully briefed the matter, the most recent
amicus curiae brief was filed on January 13, 2023, and oral argument has not been
scheduled. Thus, it seems unlikely that the California Supreme Court will issue a
decision before late summer or early autumn.
12.
“Notwithstanding any other provision of law, any provision of this code
that provides for a civil penalty to be assessed and collected by the Labor
and Workforce Development Agency or any of its departments, divisions,
commissions, boards, agencies, or employees, for a violation of this code,
may, as an alternative, be recovered through a civil action brought by an
aggrieved employee on behalf of himself or herself and other current or
former employees pursuant to the procedures specified in Section 2699.3.”
(Italics added.)
The term “this code” refers to the Labor Code. Subdivision (c) of section 2699
defines the term “ ‘aggrieved employee’ ” to mean “any person who was employed by
the alleged violator and against whom one or more of the alleged violations was
committed.” Our Supreme Court has interpreted section 2699 as having “only two
requirements for PAGA standing.” (Kim, supra, 9 Cal.5th at p. 83.) “The plaintiff must
be an aggrieved employee, that is, someone ‘who was employed by the alleged violator’
and ‘against whom one or more of the alleged violations was committed.’ (§ 2699(c).)”
(Kim, at pp. 83–84.) In Kim, the employer argued a PAGA plaintiff is no longer
“aggrieved” after he or she settles or otherwise resolves individual non-PAGA claims for
relief involving the same Labor Code violations for which civil penalties are sought
under PAGA. (Kim, at p. 84.) The court rejected this argument, stating that, “true to
PAGA’s remedial purpose, the Legislature conferred fairly broad standing on all
plaintiffs who were employed by the violator and subjected to at least one alleged
violation.” (Kim, at p. 91.)
Here, we conclude plaintiff satisfied the two requirements for PAGA standing
because she was employed by Dollar General and was subjected to at least one of the
Labor Code violations initially alleged in her pleading. Stated another way, a plaintiff’s
PAGA standing does not evaporate when an employer chooses to enforce an arbitration
agreement. This interpretation of the term “aggrieved employee” is consistent with,
rather than contrary to, PAGA’s remedial purpose, which PAGA achieves by deputizing
employees to pursue civil penalties on the state’s behalf. (Kim, supra, 9 Cal.5th at pp.
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86–87, 91.) Revoking an employee’s standing as to Type O claims would “severely
curtail[] PAGA’s availability to police Labor Code violations.” (Ibid.)
Having determined that plaintiff has satisfied PAGA’s standing requirements, we
next consider whether California’s rule against splitting a cause of action bars plaintiff
from pursuing the Type O claims in court once the Type A claims are sent to arbitration.
B. Splitting PAGA Claims
California has a rule against splitting a cause of action. (Crowley v. Katleman
(1994) 8 Cal.4th 666, 681(Crowley); see generally, 1A Cal.Jur.3d (2022) Actions, §§ 85–
99, pp. 148–163 [splitting causes of action].) The rule’s conceptual foundation is
California’s long-followed primary right theory of pleading. (Crowley, supra, at p. 681.)
Under that theory, “a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a
corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant
constituting a breach of that duty. [Citation.] The most salient characteristic of a primary
right is that it is indivisible: the violation of a single primary right gives rise to but a
single cause of action. [Citation.] A pleading that states the violation of one primary
right in two causes of action contravenes the rule against ‘splitting’ a cause of action.”
(Ibid.) The rule against splitting a cause of action “is invoked most often when a plaintiff
attempts to divide a primary right and enforce it in two suits.” (Id. at p. 682.) The
prohibited division can occur in judicial or arbitral fora. (Zakaryan v. The Men’s
Warehouse, Inc. (2019) 33 Cal.App.5th 659, disapproved on another ground in ZB, N.A.,
supra, 8 Cal.5th at p. 196, fn. 8.)
In Kim, the court stated: “Appellate courts have rejected efforts to split PAGA
claims into individual and representative components.” (Kim, supra, 9 Cal.5th at p. 88.)
In Viking River, the United States Supreme Court described Kim as “noting that based on
Iskanian, California courts have uniformly ‘rejected efforts to split PAGA claims into
individual and representative components.’ ” (Viking River, supra, 142 S.Ct. at p. 1917.)
14.
The rule against splitting a cause of action apparently was the basis for the decisions of
the trial court and Court of Appeal in Viking River not to enforce arbitration of Moriana’s
Type A claims. The United States Supreme Court stated: “The lower courts refused to
[enforce arbitration of Moriana’s individual PAGA claim] based on the rule that PAGA
actions cannot be divided into individual and non-individual claims.” (Viking River,
supra, 142 S.Ct. at p. 1925.) Plugging our defined terms into this statement, the United
States Supreme Court concluded (1) there is a rule of California law that prohibits
splitting a PAGA action into Type A and Type O claims, (2) federal law preempts such a
rule insofar as the rule would prevent the arbitration of Type A claims, and (3) what is
left of the rule against splitting after federal preemption prevents the pursuit of Type O
claims in court.
We predict that the California Supreme Court will conclude that California law
does not prohibit an aggrieved employee from pursuing Type O claims in court once the
Type O claims are separated from the Type A claims ordered to arbitration. The reason
for this prediction is simple—it is the interpretation of PAGA that best effectuates the
statute’s purpose, which is “to ensure effective code enforcement.” (Kim, supra, 9
Cal.5th at p. 87; see Cavey v. Tualla (2021) 69 Cal.App.5th 310, 337 [a court’s primary
goal is to adopt the interpretation that best effectuates the legislative intent or purpose].)
Another reason for our prediction is that the principles underlying California’s
general rule against splitting a cause of action do not identify Type A claims and Type O
claims as being based on the same “primary right.” A Type A claim is based on Labor
Code violations suffered by the plaintiff employee and Type O claims are based on Labor
Code violations suffered by employees other than the plaintiff. The difference in the
harms underlying each type of claim means different primary rights are involved.
Consequently, notwithstanding the complaint’s reference to one cause of action for civil
penalties under PAGA, there is no single cause of action being split when Type A claims
15.
are pursued in arbitration and civil penalties for violations suffered by other employees
are pursued in court.
DISPOSITION
The order denying the motion to compel arbitration judgment is reversed in part
and affirmed in part. The order is affirmed as to the Type O claims being pursued by
plaintiff. The order is reversed as to plaintiff’s Type A claims and the matter is remanded
with directions that the trial court enter a new order requiring plaintiff to arbitrate the
Type A claims.
In the interest of justice, no party shall recover costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(5).)
16.
Filed 2/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
TRICIA GALARSA, F082404
Plaintiff and Respondent, (Super. Ct. No. BCV-19-102504)
v. ORDER MODIFYING OPINION,
GRANTING PUBLICATION REQUEST
DOLGEN CALIFORNIA, LLC, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on February 2, 2023, be modified as
follows:
1. On page 5, at the end of the fourth full paragraph, “on January 9, 2023” is
deleted and replaced with “in January 2023” so the sentence now reads:
No responding supplement briefs were filed and, by rule, the matter was
submitted in January 2023.
2. On page 8, the first sentence of the fourth full paragraph “Federal
Arbitration Act (FAA; 9 U.S.C. § 1 et seq.)” is deleted and replaced with “FAA” so the
sentence now reads:
The United States Supreme Court addressed the foregoing principle of
California law by concluding 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.”
3. On page 9, “as to all PAGA claims” is added to the end of the last sentence
of the first full paragraph so the sentence now reads:
Accordingly, Iskanian’s anti-waiver rule invalidates the provision in Dollar
General’s arbitration agreement stating that the employee “may not assert
any … representative action claims in any arbitration pursuant to the
Agreement or in any other forum” as to all PAGA claims.
4. On page 12, the following sentence is added to the end of footnote 3:
Although this opinion’s determination of what becomes of the Type O
claims will be superseded by our Supreme Court’s decision, we have
granted a request for publication to provide guiding precedent for superior
courts pending the decision in Adolph.
There is no change in the judgment.
Respondent’s petition for rehearing filed on February 21, 2023, is hereby denied.
As the nonpublished opinion filed on February 2, 2023, in this matter hereby
meets the standards for publication specified in the California Rules of Court,
rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official
Reports.
FRANSON, Acting P. J.
WE CONCUR:
PEÑA, J.
SNAUFFER, J.
2.