Gregg v. Uber Technologies, Inc.

Filed 3/24/23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHNATHON GREGG, B302925

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC719085
v.

UBER TECHNOLOGIES, INC.,
et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los
Angeles County, Steven J. Kleifield, Judge. Affirmed in part and
reversed in part.
Littler Mendelson, Andrew Spurchise, Sophia B. Collins;
Gibson, Dunn & Crutcher, Theane D. Evangelis, Blaine H.
Evanson and Bradley J. Hamburger for Defendants and
Appellants.
Outten & Golden, Jahan C. Sagafi, Adam Koshkin, Rachel
W. Dempsey; Girardi & Keese, Thomas V. Girardi, Schultz and
Bennett, Stephen J. Shultz and Mark T. Bennett for Plaintiff and
Respondent.
 INTRODUCTION

Johnathon Gregg sued Uber Technologies, Inc., and Rasier-
CA, LLC (collectively, “Uber”), under the Private Attorneys
General Act of 2004 (PAGA), Labor Code section 2698 et seq.1 He
alleged Uber willfully misclassified him as an independent
contractor rather than an employee, which led to numerous other
Labor Code violations. In response, Uber moved to compel
arbitration under the “Arbitration Provision” in the “Technology
Services Agreement” (“TSA”), which Gregg accepted to use Uber’s
smartphone application and become an Uber driver.
The trial court denied Uber’s motion and, in April 2021,
this court affirmed. The United States Supreme Court vacated
the affirmance in June 2022, when it granted Uber’s petition for
writ of certiorari and remanded the case for further consideration
in light of Viking River Cruises, Inc. v. Moriana (2022) ___ U.S.
___ [142 S.Ct. 1906, 213 L.Ed.2d 179] (Viking River).
In light of Viking River, we first determine the TSA’s PAGA
Waiver is invalid and must be severed from the Arbitration
Provision. We then conclude that under the Arbitration
Provision’s remaining terms, Gregg must resolve his claim for
civil penalties based on Labor Code violations he allegedly
suffered (i.e., his individual PAGA claim) in arbitration, and that
his claims for penalties based on violations allegedly suffered by
other current and former employees (i.e., his non-individual
PAGA claims) must be litigated in court. Lastly, we conclude that
under California law, Gregg is not stripped of standing to pursue
his non-individual claims in court simply because his individual
claim must be arbitrated. Consequently, his non-individual

1 All statutory references are to the Labor Code.

2
claims are not subject to dismissal at this time. Instead, under
the Arbitration Provision, they must be stayed pending
completion of arbitration.
Accordingly, we affirm in part and reverse in part the order
denying Uber’s motion to compel arbitration. We remand the case
to the trial court with directions to: (1) enter an order compelling
Gregg to arbitrate his individual PAGA claim; and (2) stay his
non-individual claims pending completion of arbitration.

BACKGROUND

Uber is a technology company that has developed a
smartphone application known as the “Uber App,” which
connects riders with drivers to arrange transportation services.
As of December 11, 2015, drivers wanting to use the Uber App
must first enter into the TSA, which contains an Arbitration
Provision.
In section i, the Arbitration Provision states it is “intended
to apply to . . . disputes that otherwise would be resolved in a
court of law” and “requires all such disputes to be resolved only
by an arbitrator through final and binding arbitration on an
individual basis only and not by way of court or jury trial, or by
way of class, collective, or representative action.” (Bolded text
omitted.) These disputes include “disputes arising out of or
related to [the driver’s] relationship with [Uber]” and “disputes
regarding any . . . wage-hour law, . . . compensation, breaks and
rest periods, . . . [and] termination[.]”
The Arbitration Provision also identifies the claims and
issues not included in its scope. Of relevance to this appeal, it
does not apply to “[a] representative action brought on behalf of
others under [PAGA], to the extent waiver of such a claim is
deemed unenforceable by a court of competent jurisdiction[.]” The

3
Arbitration Provision also states “the validity of [its] PAGA
Waiver may be resolved only by a civil court of competent
jurisdiction and not by an arbitrator.”
The Arbitration Provision’s PAGA Waiver states:
“Notwithstanding any other provision of [the TSA] or the
Arbitration Provision, to the extent permitted by law, (1) You and
[Uber] agree not to bring a representative action on behalf of
others under [PAGA] in any court or in arbitration, and (2) for
any claim brought on a private attorney general basis—i.e.,
where you are seeking to pursue a claim on behalf of a
government entity—both you and [Uber] agree that any such
dispute shall be resolved in arbitration on an individual basis
only (i.e., to resolve whether you have personally been aggrieved
or subject to any violations of law), and that such an action may
not be used to resolve the claims or rights of other individuals in
a single or collective proceeding (i.e., to resolve whether other
individuals have been aggrieved or subject to any violations of
law)[.]” (Bolded text omitted.)
Drivers who did not wish to be bound by the Arbitration
Provision could opt out in the 30-day period following their
acceptance of the TSA. Those who did not exercise this option in
that time were bound by the Arbitration Provision.
Gregg signed up to use the Uber App on October 10, 2016
and accepted the TSA three days later. He did not opt out of the
Arbitration Provision in the following 30 days.
In August 2018, Gregg filed a complaint against Uber,
asserting a single claim under PAGA on behalf of himself and
other current and former employees. He alleged Uber willfully
misclassified him and other current and former employees as
independent contractors, which led to its violation of California

4
Wage Order 9-2001 and numerous other Labor Code provisions.
Gregg’s operative complaint only seeks to recover civil penalties
for the alleged violations.
Uber moved to compel arbitration, seeking an order
enforcing the PAGA Waiver by: (1) requiring Gregg to
arbitrate his individual claim; and (2) dismissing and/or striking
his non-individual PAGA claims. In the alternative, Uber
requested an order: (1) “compelling [Gregg] to arbitrate the
issue(s) of . . . whether he was properly classified as an
independent contractor . . . and/or questions of enforceability or
arbitrability”; and (2) staying all judicial proceedings until its
motion was resolved and, if arbitration was ordered, extending
the stay until its completion.
In December 2019, the trial court denied Uber’s motion,
reasoning that under California law at the time: (1) whether a
plaintiff is an “aggrieved employee” within the meaning of PAGA
is an essential element of a PAGA claim, not a “separate standing
issue” capable of being “parse[d] out” for arbitration; and (2) the
PAGA Waiver was not enforceable. In April 2021, applying
Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59
Cal.4th 348 (Iskanian) and its progeny, a different panel of this
court affirmed the trial court’s order. (Gregg v. Uber Tech. (Apr.
21, 2021), B302925 [nonpub. opn.])
In June 2022, the United States Supreme Court granted
Uber’s petition for writ of certiorari, vacated this court’s
judgment, and remanded the case for further consideration in
light of Viking River. Consequently, in August 2022, this court
vacated its April 2021 opinion, recalled its July 2021 remittitur,
and directed the parties to file supplemental briefs addressing

5
Viking River’s effect on the issues presented. Both parties timely
filed their supplemental briefs.

DISCUSSION

I. Governing Law and Standard of Review

A. Standard of Review
Where, as here, the trial court’s order denying a motion to
compel arbitration “rests solely on a decision of law,” the “de novo
standard of review is employed.” (Robertson v. Health Net of
California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)

B. PAGA, Iskanian, and Viking River
PAGA authorizes an “aggrieved employee” to initiate a civil
action “on behalf of himself or herself and other current or former
employees” to recover civil penalties for violations of the Labor
Code ordinarily “assessed and collected by the Labor and
Workforce Development Agency[.]” (§ 2699, subd. (a).)
“An employee suing under PAGA ‘does so as the proxy or
agent of the state’s labor law enforcement agencies.’ [Citation.]
Every PAGA claim is ‘a dispute between an employer and the
state.’ [Citations.] Moreover, the civil penalties a PAGA plaintiff
may recover on the state’s behalf are distinct from the statutory
damages or penalties that may be available to employees suing
for individual violations. [Citation.] Relief under PAGA is
designed primarily to benefit the general public, not the party
bringing the action. [Citations.] ‘A PAGA representative action is
therefore a type of qui tam action,’ conforming to all ‘traditional
criteria, except that a portion of the penalty goes not only to the
citizen bringing the suit but to all employees affected by the
Labor Code violation.’ [Citation.] The ‘government entity on
whose behalf the plaintiff files suit is always the real party in

6
interest.’” (Kim v. Reins International California, Inc. (2020) 9
Cal.5th 73, 81 (Kim), italics omitted.)
In Iskanian, the California Supreme Court held “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.” (Iskanian,
supra, 59 Cal.4th at p. 360.) The United States Supreme Court
granted certiorari in Viking River to decide whether Iskanian’s
holding was preempted by the Federal Arbitration Act (FAA), 9
U.S.C. § 1 et seq. (Viking River, supra, 142 S.Ct. at p. 1913.)
The Viking River court began its analysis by explaining
PAGA claims are “representative” in two ways. (Viking River,
supra, 142 S.Ct. at p. 1916.) First, “PAGA actions are
‘representative’ in that they are brought by employees acting as
representatives—that is, as agents or proxies—of the State.”
(Ibid.) “In [that] sense, ‘“every PAGA action is . . . representative”’
and ‘[t]here is no individual component to a PAGA action,’
[citations], because every PAGA claim is asserted in a
representative capacity.” (Ibid., original italics.) Second, some
PAGA actions are “representative” in that they are brought by
one employee to recover civil penalties for Labor Code violations
committed against other employees. (Ibid.)
The Viking River court then observed: “Iskanian’s principal
rule prohibits waivers of ‘representative’ PAGA claims in the first
sense. That is, it prevents parties from waiving representative
standing to bring PAGA claims in a judicial or arbitral forum.
But Iskanian also adopted a secondary rule that invalidates
agreements to separately arbitrate or litigate ‘individual PAGA
claims for Labor Code violations that an employee suffered,’ on
the theory that resolving victim-specific claims in separate

7
arbitrations does not serve the deterrent purpose of PAGA.”
(Viking River, supra, 142 S.Ct. at pp. 1916-1917, original italics.)
The Viking River court determined the FAA does not
preempt Iskanian’s principal rule. (Viking River, supra, 142 S.Ct.
at pp. 1924-1925; see also id. at pp. 1919-1923.) In so doing, it
noted, among other things: “[T]he FAA does not require courts to
enforce contractual waivers of substantive rights and remedies.
The FAA’s mandate is to enforce ‘arbitration agreements.’
[Citation.] And as we have described it, an arbitration agreement
is ‘a specialized kind of forum-selection clause that posits not only
the situs of suit but also the procedure to be used in resolving the
dispute.’ [Citations.] An arbitration agreement thus does not
alter or abridge substantive rights; it merely changes how those
rights will be processed. And so we have said that ‘“[b]y agreeing
to arbitrate a statutory claim, a party does not forego the
substantive rights afforded by the statute; it only submits to their
resolution in an arbitral . . . forum.”’” (Id. at p. 1919, original
italics, fn. omitted.) Thus, the court held “wholesale waiver[s] of
PAGA claims[ ]” remain invalid under Iskanian. (Id. at p. 1924.)
Finally, the Viking River court held the FAA preempts
Iskanian’s secondary rule “preclud[ing] [the] division of PAGA
actions into individual and non-individual claims through an
agreement to arbitrate.” (Viking River, supra, 142 S.Ct. at p.
1924.) It reasoned Iskanian’s “prohibition on contractual division
of PAGA actions into constituent claims unduly circumscribes the
freedom of parties to determine ‘the issues subject to arbitration’
and ‘the rules by which they will arbitrate,’ [citation], and does so
in a way that violates the fundamental principle that ‘arbitration
is a matter of consent,’ [citation].” (Id. at p. 1923.) Consequently,
under Viking River, employers may enforce an agreement

8
mandating arbitration of a plaintiff’s individual PAGA claim,
even if the agreement does not require arbitration of the
plaintiff’s non-individual claims. (See id. at p. 1925.)

II. The TSA’s PAGA Waiver is invalid and must be
severed.

We begin our analysis by addressing whether the PAGA
Waiver is enforceable under Viking River. We conclude it is not.
As noted above, the PAGA Waiver consists of two clauses.
Per the first clause, drivers “agree not to bring a representative
action on behalf of others under [PAGA] in any court or in
arbitration[.]” (Bolded text omitted.) The second clause states
that “for any claim brought on a private attorney general basis—
i.e., where [the driver is] seeking to pursue a claim on behalf of a
government entity—both [the driver] and [Uber] agree that any
such dispute shall be resolved in arbitration on an individual
basis only (i.e., to resolve whether [the driver] ha[s] personally
been aggrieved or subject to any violations of law), and that such
an action may not be used to resolve the claims or rights of other
individuals in a single or collective proceeding (i.e., to resolve
whether other individuals have been aggrieved or subject to any
violations of law)[.]”
The PAGA Waiver does not completely bar Gregg from
filing suit under PAGA. The first clause prohibits Gregg from
asserting any non-individual PAGA claims against Uber.2 Its
second clause, however, implicitly recognizes he may assert an

2 To the extent Gregg reads the first clause of the PAGA
Waiver to wholly preclude him from filing any lawsuits under
PAGA, we reject his interpretation of the PAGA Waiver for the
reasons stated in section III, ante.

9
individual PAGA claim. In so doing, the second clause builds
upon the first clause. First, it effectively reiterates that Gregg
may only bring a “claim . . . on a private attorney general basis”
based on “violations of law” he has “personally” suffered. It then
requires him to resolve the claim in arbitration and limits the
scope of that proceeding. Consequently, when read together, both
clauses make clear that Gregg must completely forego his
statutory right to seek civil penalties for Labor Code violations
committed against other employees, whether in court or in
arbitration. The PAGA Waiver therefore requires him to waive
his right to invoke “representative standing” to recover penalties
based on those violations for the state. (Viking River, 142 S.Ct. at
p. 1916, italics omitted.) But as noted above, the Viking River
court made clear ““the FAA does not require courts to enforce
contractual waivers of substantive rights and remedies[ ]” (id. at
p. 1919) and upheld Iskanian’s rule “prevent[ing] parties from
waiving representative standing to bring PAGA claims in a
judicial or arbitral forum.” (Id. at p. 1916, italics omitted; see also
id. at pp. 1924-1925.) Because the PAGA Waiver requires Gregg
to do that which is still prohibited by Iskanian, we conclude it is
invalid.3 (See id. pp. 1924-1925.)
Accounting for the PAGA Waiver’s potential invalidity, the
Arbitration Provision contains the following severance clause: “If
any provision of the PAGA Waiver is found to be unenforceable or
unlawful for any reason, (1) the unenforceable provision shall be
severed from [the TSA]; (2) severance of the unenforceable
provision shall have no impact whatsoever on the Arbitration

3 In its supplemental brief on remand, Uber does not argue
or otherwise suggest any portion of the PAGA Waiver is valid and
enforceable under Iskanian post-Viking River.

10
Provision or the [p]arties’ attempt to arbitrate any remaining
claims on an individual basis pursuant to the Arbitration
Provision; and (3) any representative action brought under PAGA
on behalf of others must be litigated in a civil court of competent
jurisdiction and not in arbitration.” Applying the first part of this
provision, we conclude the PAGA Waiver must be severed from
the Arbitration Provision (see Viking River, supra, 142 S.Ct. at p.
1925), and now turn to consider where Gregg must resolve his
PAGA claim (i.e., in court or in an arbitral forum) under the
Arbitration Provision’s remaining terms.

III. Gregg must arbitrate his individual claim.

Gregg argues that with the PAGA Waiver’s severance from
the Arbitration Provision, he “cannot be forced to litigate any
portion of his PAGA claims in arbitration.” In support, he relies
on the third part of the severance clause discussed above, which
states, “any representative action brought under PAGA on behalf
of others must be litigated in a civil court of competent
jurisdiction and not in arbitration.” He also notes that under
section ii of the Arbitration Provision, “[a] representative action
brought on behalf of others under [PAGA], to the extent waiver of
such a claim is deemed unenforceable by a court of competent
jurisdiction[,]” is among the “claims . . . [that] shall not be subject
to arbitration[.]” As discussed below, we do not agree with
Gregg’s argument and conclude he must arbitrate his individual
claim.
Gregg misreads the two contractual provisions on which he
relies. In his view, these terms require his entire PAGA claim,
including its individual and non-individual components, to be
litigated in court. Both provisions, however, only apply to a
“representative action brought” under PAGA “on behalf of

11
others[.]”4 (Italics added.) They do not state or otherwise suggest
they apply to a PAGA action or claim to the extent it is brought
on the driver’s own behalf. And, PAGA expressly permits an
“aggrieved employee” to recover civil penalties “through a civil
action brought . . . on behalf of himself or herself and other
current or former employees[.]” (§ 2699, subd. (a), italics added.)
We therefore conclude these terms do not exclude Gregg’s
individual PAGA claim from the Arbitration Provision’s scope,
nor do they mandate its resolution in court.
We acknowledge that in Olabi v. Neutron Holdings, Inc.
(2020) 50 Cal.App.5th 1017 (Olabi), cited by Gregg, the First
District Court of Appeal interpreted similar language differently.
There, the plaintiff brought a PAGA claim on behalf of himself
and others, asserting the defendant intentionally misclassified its
workers as independent contractors and, consequently, violated
several Labor Code provisions. (Id., at pp. 1019-1020.) At the
time, “California law block[ed] [an] employer from enforcing [an
arbitration] agreement with respect to representative PAGA
claims for civil penalties[.]” (Id. at p. 1019.) Consequently, the
defendant petitioned the trial court to compel arbitration of the
dispute concerning the plaintiff’s classification, and stay the
PAGA claim pending completion of arbitration. (Id. at p. 1020.)
The trial court denied the petition. (Ibid.)
On appeal, “[t]he parties dispute[d] whether a
representative PAGA claim may be split in th[e] manner[ ]”
proposed by the defendant. (Olabi, supra, 50 Cal.App.5th at p.
1021.) The appellate court, however, determined it “need not

4 On two separate occasions in his supplemental brief, Gregg
omits the phrase “brought on behalf of others” when setting forth
the third part of the Arbitration Provision’s severance clause.

12
decide the issue” because the parties’ arbitration agreement
“carves out PAGA representative actions[.]” (Ibid.) Similar to the
language at issue in the TSA’s Arbitration Provision, the
agreement in Olabi stated, in relevant part: “‘Neither this
Arbitration Provision nor the Class Action Waiver shall apply to
a representative action brought on behalf of others under
[PAGA]; any representative action brought under PAGA on
behalf of others must be litigated in a court of competent
jurisdiction.’” (Ibid.) Interpreting this provision, the appellate
court concluded: “The term ‘action’ generally means ‘suit’ and
refers to the entire judicial proceeding, from complaint to
judgment. (See Nassif v. Municipal Court (1989) 214 Cal.App.3d
1294, 1298; Code Civ. Proc., § 22.) Thus, the plain language of the
carve out removes a PAGA lawsuit from the ‘disputes’ otherwise
arbitrable under the Arbitration Provision and requires the
lawsuit to be litigated in court.” (Olabi, supra, at p. 1021.)
We decline to follow Olabi for a few reasons. As an initial
matter, the opinion was filed before Viking River was decided.
(See Olabi, supra, 50 Cal.App.5th 1017; Viking River, supra, 142
S.Ct. 1906.) Therefore, the Olabi court did not interpret the
agreement before it in the context of current law, which, as
discussed above, now permits a PAGA lawsuit to be split into
arbitrable and non-arbitrable components, and does not require it
to be treated as an indivisible unit for purposes of arbitration.
Further, in interpreting the agreement, the Olabi court
focused entirely on the meaning of the word “action” in the
relevant contractual provision, but relied exclusively on legal
authorities defining what it “generally means[.]” (See Olabi,
supra, 50 Cal.App.5th at p. 1021.) In so doing, however, it is
unclear whether the court interpreted the PAGA carve out clause

13
with the goal of ascertaining the parties’ intentions behind the
language at issue. (See State of California v. Continental Ins. Co.
(2012) 55 Cal.4th 186, 195 [“‘The fundamental goal of contract
interpretation is to give effect to the mutual intention of the
parties.’ [Citations.] ‘Such intent is to be inferred, if possible,
solely from the written provisions of the contract’”].) Indeed, it is
unclear what principles of contract interpretation, if any, were
applied. (See Rice v. Downs (2016) 248 Cal.App.4th 175, 185
[“The ordinary rules of contract interpretation apply to
arbitration agreements”].)
Applying those rules of interpretation here, we conclude
that by specifying their application to a “representative action”
under PAGA “brought on behalf of others” (italics added), Uber
did not intend section ii of the Arbitration Provision or the third
portion of the severance clause to apply to the portion of a PAGA
lawsuit brought on behalf of Gregg himself. (See Cundall v.
Mitchell-Clyde (2020) 51 Cal.App.5th 571, 584, fn. 9 [describing
“the principle of interpretation” known as expressio unius est
exclusio alterius, under which “an author’s choice to specify one
thing tends to exclude others”].) To interpret the language at
issue to mean an entire PAGA lawsuit, including both its
individual and non-individual components, would render the
phrase “brought on behalf of others” surplusage. (See Rice v.
Downs, supra, 248 Cal.App.4th at p. 186 [“An interpretation that
leaves part of a contract as surplusage is to be avoided”].)
Having concluded Gregg misinterprets the contractual
terms on which he relies, we note he also overlooks two other
provisions establishing that he must arbitrate his individual
PAGA claim. First, as discussed above, the Arbitration Provision
states it applies to “disputes arising out of or related to [Gregg’s]

14
relationship with [Uber], including termination of the
relationship.” It “also applies, without limitation, to disputes
regarding any city, county, state or federal wage-hour law, . . .
compensation, breaks and rest periods, . . . [and] termination[.]”
Based on this language, Gregg’s individual PAGA claim falls
squarely within the Arbitration Provision’s scope. The claim is
based on Uber’s alleged misclassification of him as an
independent contractor (i.e., a “dispute[ ] arising out of or related
to [Gregg’s] relationship with Uber[ ]”) and, as a result thereof,
Uber’s alleged violations of the provisions in the Labor Code and
the IWC Wage Order requiring it to, among other things, provide
him with compliant meal and rest periods; pay him minimum,
regular, and overtime wages; maintain accurate records for him;
provide him with accurate itemized wage statements; and timely
pay him wages due during, and upon termination of, employment
(i.e., “disputes regarding . . . state . . . wage-hour law, . . .
compensation, breaks and rest periods, . . . [and] termination”).
Second, while fixating on the third part of the severance
clause, Gregg ignores the second part, which clarifies the PAGA
Waiver’s severance from the TSA does not affect the Arbitration
Provision’s application to his individual claim. On this point, the
severance clause states: “severance of the unenforceable provision
[of the PAGA Waiver] shall have no impact whatsoever on the
Arbitration Provision or the [p]arties’ attempt to arbitrate any
remaining claims on an individual basis pursuant to the
Arbitration Provision[.]”
In sum, pursuant to section i of the Arbitration Provision
and the second part of the PAGA Waiver’s severance clause,
Gregg must resolve his individual PAGA claim in arbitration. Per
section ii of the Arbitration Provision and the third part of the

15
PAGA Waiver’s severance clause, however, his non-individual
claims are not subject to arbitration and must be litigated in
court. We now turn to consider whether his non-individual claims
should be dismissed or stayed pending completion of arbitration.

IV. Gregg’s non-individual claims must be stayed
pending completion of arbitration.

After holding the plaintiff in Viking River was required to
arbitrate her individual PAGA claim, the United States Supreme
Court determined her non-individual claims must be dismissed.
(Viking River, supra, 142 S.Ct. at p. 1925.) In so doing, the court
reasoned: “[A]s we see it, PAGA provides no mechanism to enable
a court to adjudicate nonindividual PAGA claims once an
individual claim has been committed to a separate proceeding.
Under PAGA’s standing requirement, a plaintiff can maintain
non-individual PAGA claims in an action only by virtue of also
maintaining an individual claim in that action. [Citations.] 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.
[Citation.] As a result, [the plaintiff] lacks statutory standing to
continue to maintain her non-individual claims in court, and the
correct course is to dismiss her remaining claims.” (Ibid.)
Uber contends the Viking River court “got PAGA’s standing
requirements exactly right[,]” and therefore argues Gregg’s non-
individual claims should be dismissed. In response, Gregg
asserts: (1) this court “is not obligated to follow federal decisions
interpreting state law[ ]”; and (2) under the “ample guidance”
provided by the California Supreme Court on “the scope of PAGA
standing,” he does not lose statutory standing to maintain his
non-individual PAGA claims in court simply because he must

16
arbitrate his individual claim. As discussed below, we agree with
Gregg.
Preliminarily, we note that we are not bound by the United
States Supreme Court’s interpretation of PAGA and its standing
requirements. (See Howard Contracting, Inc. v. G.A. MacDonald
Construction Co. (1998) 71 Cal.App.4th 38, 52 [“[F]ederal
decisional authority is neither binding nor controlling in matters
involving state law”]; see also Haynes v. EMC Mortgage Corp.
(2012) 205 Cal.App.4th 329, 335 [“We, of course, are not bound by
federal decisions on matters of state law”].) Indeed, in her
concurrence in Viking River, Justice Sotomayor correctly
recognized “California courts . . . will have the last word[ ]” on
whether a plaintiff retains statutory standing to assert non-
individual claims in court when his or her individual claim has
been sent to arbitration.5 (Viking River, supra, 142 S.Ct. at p.
1925 (conc. opn. of Sotomayor, J.).)
Accordingly, we begin our independent analysis of the
standing issue with the relevant statutory text. As noted above,
PAGA authorizes an “aggrieved employee” to recover civil
penalties for violations of the Labor Code ordinarily “assessed
and collected by the Labor and Workforce Development Agency.”
(§ 2699, subd. (a).) “For purposes of [PAGA], ‘aggrieved employee’
means any person who was employed by the alleged violator and

5 In Adolph v. Uber Technologies, review granted July 20,
2022, S274671, the California Supreme Court will consider
“[w]hether an aggrieved employee who has been compelled to
arbitrate claims under [PAGA] that are ‘premised on Labor Code
violations actually sustained by’ the aggrieved employee
[citations] maintains statutory standing to pursue ‘PAGA claims
arising out of events involving other employees’ [citation] in court
or in any other forum the parties agree is suitable.”

17
against whom one or more of the alleged violations was
committed.” (§ 2699, subd. (c).)
In Kim, supra, 9 Cal.5th 73, the California Supreme Court
clarified the statutory requirements a plaintiff must satisfy to
have standing to recover civil penalties under PAGA. (See id. at
pp. 83-84.) It stated: “The plain language of section 2699(c) has
only two requirements for PAGA standing. 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.’” (Ibid.)
Applying the two-part test above, the Kim court concluded
plaintiffs who “settle and dismiss their individual claims for
Labor Code violations[ ]” do not “lose standing to pursue a claim
under [PAGA].” (Kim, supra, 9 Cal.5th at p. 80; see also id. at pp.
84-85.) The court determined the plaintiff had “standing to
pursue penalties on the state’s behalf[ ]” under PAGA because he
“was employed by [the defendant] and alleged that he personally
suffered at least one Labor Code violation on which the PAGA
claim is based.” (Id. at p. 84.) The court then rejected the
defendant’s contention the plaintiff “is no longer an ‘aggrieved
employee’ because he accepted compensation for his injury.”
(Ibid.) It explained: “[The plaintiff] became an aggrieved
employee, and had PAGA standing, when one or more Labor
Code violations were committed against him. [Citation.]
Settlement did not nullify these violations.” (Ibid.)
In addition to Kim, Johnson v. Maxim Healthcare Services,
Inc. (2021) 66 Cal.App.5th 924 (Johnson) is instructive. There,
the plaintiff asserted a PAGA claim against her former employer
on behalf of herself and other employees based on the employer’s
inclusion of an illegal non-compete clause in an agreement they

18
had signed. (Id. at p. 927.) The defendant demurred to the
complaint, arguing the plaintiff’s individual claim was time-
barred because she signed her agreement three years before
filing suit. (Ibid.) In opposition, the plaintiff argued “she had
standing to bring a claim under PAGA because she was an
aggrieved employee and had exhausted the necessary
administrative remedies.” (Ibid.) The trial court sustained the
demurrer without leave to amend, reasoning that because the
plaintiff’s claim was time-barred, she lacked standing to assert a
PAGA claim on behalf of other employees. (Ibid.)
The Court of Appeal reversed, explaining: “Under Kim, we
conclude [the plaintiff] is an ‘aggrieved employee’ with standing
to pursue her PAGA claim. [She] alleged she is employed by [the
defendant] and that she personally suffered at least one Labor
Code violation on which the PAGA claim is based. [Citations.]
The fact that [her] individual claim may be time-barred does not
nullify the alleged Labor Code violations nor strip [the plaintiff]
of her standing to pursue PAGA remedies.” (Johnson, supra, 66
Cal.App.5th at p. 930; see also id. at p. 932.) Further, the court
rejected the defendant’s attempt to limit Kim’s application to its
facts. (Id. at p. 930.) In so doing, it explained: “The rule from Kim
is an ‘aggrieved employee’ has standing to pursue a PAGA claim,
irrespective of whether that employee maintains a separate
Labor Code claim. And . . . [the plaintiff] alleged she was an
aggrieved employee. Under Kim, this allegation is sufficient, at
this stage, to establish standing.” (Ibid.)
Applying Kim’s two-part test, we conclude that, at this
stage of the proceedings, Gregg has established standing to
recover civil penalties for Labor Code violations committed
against other employees. His operative complaint alleges he was

19
employed by Uber, that he has sustained “one or more” of the
Labor Code violations underlying his claim, and that he “seeks to
recover civil penalties on behalf of himself and other current and
former Uber drivers for [Uber’s] violations of the Labor Code[.]”
His agreement to arbitrate his individual claim does not nullify
these allegations. (See Kim, supra, 9 Cal.5th at p. 84; see also
Johnson, supra, 66 Cal.App.5th at p. 930.) It merely requires him
to litigate a portion of his PAGA claim in an alternative forum
governed by different procedures. (See Viking River, supra, 142
S.Ct. at p. 1919 [“An arbitration agreement . . . does not alter or
abridge substantive rights; it merely changes how those rights
will be processed”].) And, so far as we can tell, PAGA does not
require a plaintiff to resolve certain portions of his or her PAGA
claim in a judicial—as opposed to an arbitral—forum in order to
seek civil penalties based on Labor Code violations committed
against other employees in court. “In construing a statute, we are
‘“careful not to add requirements to those already supplied by the
Legislature.”’” (Kim, supra, at p. 85.)
Accordingly, we hold that under California law, an alleged
“aggrieved employee” (§ 2699, subd. (c)) is not stripped of
standing to assert non-individual PAGA claims in court simply
because he or she has been compelled to arbitrate his or her
individual PAGA claim. (See Kim, supra, 9 Cal.5th at pp. 83-85;
see also Johnson, supra, 66 Cal.App.5th at p. 930; Rocha v. U-
Haul Co. of California (2023) 88 Cal.App.5th 65, 77 (Rocha)
[“[U]nless and until there is a finding on the merits regarding the
alleged violation, allegations of a Labor Code violation by an
alleged employee or former employee are alone sufficient to
establish PAGA standing”].)

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 In arriving at our conclusion, we note the legislative history
and the California appellate court decisions6 cited by Uber do
not—as it suggests—establish Gregg no longer meets PAGA’s
standing requirements. These authorities, along with the two
cases discussed above, make clear that to recover civil penalties
under PAGA on behalf of other employees, the plaintiff must: (1)
have been employed by the defendant; (2) have suffered one or
more of the Labor Code violations on which the PAGA claim is
based; and (3) seek to recover penalties for the violations he or
she suffered in addition to penalties for violations suffered by
other employees. (See Kim, supra, 9 Cal.5th at p. 90 [discussing
Legislature’s inclusion of section 2699, subdivision (c) to dissuade
“‘shakedown’ suits” and “ensure that PAGA suits could not be
brought by ‘persons who suffered no harm from the alleged
wrongful act’”]; Tanguilig v. Bloomingdale’s, Inc. (2016) 5
Cal.App.5th 665, 678, [noting a PAGA plaintiff may “su[e] solely
on behalf of himself or herself or also on behalf of other
employees”]; Amalgamated Transit Union, Local 1756 AFL-CIO
v. Superior Court (2009) 46 Cal.4th 993, 1004-1005 [labor unions
lacked PAGA standing because they “were not employees of
defendants” and therefore “cannot satisfy the express . . .
requirements” of section 2699, subdivision (c)]; Robinson v.
Southern Counties Oil Co. (2020) 53 Cal.App.5th 476, 483-485
[employee lacked standing to assert a PAGA claim based entirely
on Labor Code violations occurring after his termination].) They
do not establish that a plaintiff who—like Gregg—allegedly
satisfies these requirements, but has been compelled to resolve

6 Uber also cites two federal district court decisions, which
are not binding upon this court. (See Haynes v. EMC Mortgage
Corp., supra, 205 Cal.App.4th at p. 335].)

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his or her individual claim in an arbitral forum, loses standing to
pursue non-individual claims in court.
In addition, we note Uber also contends Gregg lacks
standing to assert non-individual claims in court because: “The
FAA demands that his individual PAGA claim be severed from
his non-individual claims [citation], and thus what was once ‘a
single action’ must now proceed as ‘two . . . separate and distinct
actions with consequent separate [j]udgments’ [citations].” In
support of this argument, Uber cites Viking River, Bodine v.
Superior Court of Santa Barbara County (1962) 209 Cal.App.2d
354 (Bodine), and Morehart v. County of Santa Barbara (1994) 7
Cal.4th 725 (Morehart).
We reject this contention because it is unsupported by the
authority on which Uber relies. In Viking River, the United
States Supreme Court did not—as Uber asserts—hold that under
the FAA, Gregg’s individual claim must be “severed” from his
nonindividual claims. Rather, the court interpreted “PAGA’s
standing requirement” to provide that “a plaintiff can maintain
non-individual PAGA claims in an action only by virtue of also
maintaining an individual claim in that action[,]” and therefore
concluded that “[w]hen 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.” (Viking River, supra, 142 S.Ct. at p. 1925.)
However, as discussed above, and as Justice Sotomayor
acknowledged, we are not bound by the Viking River court’s
“understanding of state law[.]” (Ibid. (conc. opn. of Sotomayor,
J.).)
Bodine and Morehart simply do not apply here. In Bodine,
the appellate court considered whether the trial court erred by

22
agreeing to empanel a jury in the second half of a hearing on a
probate petition for determining heirship, when the executor of
the estate and the heirs who initially appeared at the hearing
previously stipulated to proceed without a jury. (See Bodine,
supra, 209 Cal.App.2d at pp. 356-359.) In Morehart, our Supreme
Court addressed: (1) whether an appeal can be taken from a
judgment that does not completely dispose of all the pending
causes of action, even if the judgment was entered on certain
causes of action previously severed from the others; and (2)
whether a zoning ordinance amended by the County of Santa
Barbara and its board of supervisors was preempted by state law.
(Morehart, supra, 7 Cal.4th at p. 732.) Although each decision
noted severance of a civil action results in two or more separate
cases with distinct judgments (Bodine, supra, at p. 361;
Morehart, supra, at p. 739, fn. 7), in neither case did the
appellate court apply this principle in a manner to suggest, let
alone hold, that a plaintiff loses standing to assert non-individual
claims under PAGA once he or she is compelled to arbitrate his or
her individual claim. (See Bodine, supra, at pp. 356-359;
Morehart, supra, at pp. 731-732.)
Finally, we consider Uber’s contention that Gregg’s non-
individual claims should be dismissed because “[a]ny other
outcome would be unworkable.” Specifically, it argues that unless
Gregg’s non-individual claims are dismissed, he will be
“permitted to” litigate the issue whether he is an “aggrieved
employee” under 2699, subdivision (c) in court to show he has
standing to pursue civil penalties based on Labor Code violations
suffered by other employees, even though he has agreed to
resolve that issue exclusively in arbitration.

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 We are not persuaded by this argument for two reasons.
First, it appears to assume that, absent dismissal, Gregg’s non-
individual claims will move forward in court while his individual
claim is pending in arbitration, and therefore he will be required
to litigate the issue whether he is an “aggrieved employee” under
section 2699, subdivision (c) simultaneously in both forums. This
assumption, however, is wholly unsupported by any explanation
grounded in law or fact.
Second, Uber appears to assume that even if Gregg’s non-
individual claims are stayed pending completion of arbitration on
his individual claim, he will be allowed to relitigate whether he is
an “aggrieved employee” in court because the doctrine of issue
preclusion will not apply to the arbitrator’s finding on the issue.
This assumption is premature at best, and incorrect at worst. A
split in authority has recently developed on this issue (compare
Rocha, supra, 88 Cal.App.5th at pp. 78-82 with Gavriiloglou v.
Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595,
602-607), and the parties have not asked to brief it. In any event,
we express no opinion on the matter and need not address it. As
discussed above, Kim and Johnson establish that regardless of its
resolution, Gregg has not lost standing to assert his non-
individual claims in court merely because he has agreed to
arbitrate his individual claim.
Having concluded Gregg’s non-individual claims are not
subject to dismissal at this time, we agree with the parties that
under the Arbitration Provision, they should be stayed pending
completion of arbitration on his individual claim. On this point,
the Arbitration Provision states: “To the extent that there are
any claims to be litigated in a civil court of competent jurisdiction
because a civil court of competent jurisdiction determines that

24
the PAGA Waiver is unenforceable with respect to those claims,
the [p]arties agree that litigation of those claims shall be stayed
pending the outcome of any individual claims in arbitration.”

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 DISPOSITION

The order denying the motion to compel arbitration is
affirmed in part and reversed in part. Specifically, the order is
affirmed with respect to Gregg’s non-individual claims, and
reversed with respect to his individual claim. The case is
remanded to the trial court with directions to: (1) enter an order
compelling Gregg to arbitrate his individual claim; and (2) stay
his non-individual claims until completion of arbitration.
In the interests of justice, each party shall bear its own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

CERTIFIED FOR PUBLICATION

CURREY, Acting P. J.
We concur:

COLLINS, J.

STONE, J.*

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.

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