Nickson v. Shemran, Inc.

Filed 4/7/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BLAINE NICKSON, D080914

Plaintiff and Respondent,

v. (Super. Ct. No. CVSW2107735)

SHEMRAN, INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Riverside County,
Angel M. Bermudez, Judge. Reversed with directions.
Law Offices of Eli Mayer Kantor, Eli Mayer Kantor and Jonathan D.
Kantor for Defendant and Appellant.
Lawyers for Justice, Edwin Aiwazian, Tara Zabehi and Travis Joseph
Maher for Plaintiff and Respondent.
 Shemran, Inc. (Shemran) appeals the denial of its motion to compel
arbitration of a Labor Code Private Attorneys General Act of 2004 (PAGA)
(Lab. Code, § 2698 et seq.) action brought by a former employee, Blaine

Nickson.1 The motion was based on Nickson’s agreement to arbitrate all
individual claims arising from his employment (the Agreement). At the time
of the trial court’s ruling, a predispute agreement to arbitrate PAGA claims
was unenforceable under Iskanian v. CLS Transportation Los Angeles, LLC
(2014) 59 Cal.4th 348 (Iskanian). But during the pendency of this appeal, the
United States Supreme Court decided Viking River Cruises, Inc. v.
Moriana (2022) 142 S.Ct. 1906 (Viking River), holding that the Federal
Arbitration Act (FAA) (9 U.S.C., § 1 et seq.) preempts Iskanian in part. The
issue now is whether the trial court’s ruling survives Viking River. We hold
it does not. Nickson’s individual PAGA claims are arbitrable.
Viking River aside, Nickson further contends the Agreement is
unenforceable because it is unconscionable. But as we explain, the
Agreement delegates to the arbitrator the exclusive authority to decide that
point.
The final issue is what to do with Nickson’s nonindividual PAGA
claims, since only his individual ones are arbitrable. In Viking River,
purporting to apply California law, the United States Supreme Court stated
that a plaintiff lacks standing to prosecute nonindividual PAGA claims when
their individual ones are ordered to arbitration. (Viking River, supra, 142
S.Ct. at p. 1925.) Shemran contends we should, therefore, dismiss Nickson’s
nonindividual PAGA claims. California courts, however, are the final word
on the meaning and application of this state’s statutes. (See Beal v. Missouri

1 Undesignated statutory references are to the Labor Code.
2
P.R. Corp. (1941) 312 U.S. 45, 50 (Beal).)2 In Kim v. Reins (2020) 9 Cal.5th
73, 80, the California Supreme Court held that employees do not lose PAGA
standing even after settling and dismissing individual claims. Indeed,
relying on Kim, we recently held that an employee whose individual PAGA
claims are time-barred still has standing to pursue nonindividual claims.
(Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 929

(Johnson).) Pending further guidance from the California Supreme Court,3
we are compelled to follow Kim and hold that Nickson’s nonindividual PAGA
claims should not be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2021, Nickson filed a single-count PAGA complaint against Shemran
and “Barons Market,” a fictitious business name under which it operates
grocery stores. Nickson alleged that he was “an hourly-paid, non-exempt
employee” and defendants violated certain wage-and-hour provisions of the
Labor Code. He sought civil penalties on behalf of himself and other
aggrieved employees.

2 Subject, of course, to review by the United States Supreme Court, but
only if that interpretation is challenged on federal constitutional grounds.
(Beal, supra, 312 U.S. at p. 50.)
3 The California Supreme Court has granted review in the unpublished
opinion of Adolph v. Uber Technologies (Apr. 11, 2022, G059860, G060198),
on July 20, 2022, S274671, to address “[w]hether an aggrieved employee who
has been compelled to arbitrate claims under the Private Attorneys General
Act (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.”
3
 Shemran promptly moved to compel arbitration, supported by an
authenticated copy of the Agreement. It provides for the “resolution by
binding arbitration” of Nickson’s individual claims:

“Barons Market and I mutually consent to the resolution by
binding arbitration of all claims or controversies . . . that
Barons Market may have against me or that I may have
against Barons Market . . . .” [¶] . . . [¶]

“All claims that are covered by this Agreement can only be
brought . . . on an individual basis. . . . I agree to waive any
right to join or consolidate claims with others, or to make
any claims as representative of a class, a member of a class,
or in a private attorney general capacity.”

After conducting an unreported hearing, the trial court denied the
motion, citing Iskanian, supra, 59 Cal.4th 348 as “controlling law.”

DISCUSSION

A. PAGA

Before 2004, the California Labor and Workforce Development Agency
(LWDA) was responsible for collecting civil penalties for labor law violations.
The Legislature found, however, that the LWDA lacked sufficient resources
to keep pace with the sheer number and gravity of offenses. As a solution,
PAGA was enacted to empower aggrieved employees to act as private
attorneys general to prosecute and collect civil penalties on the State’s behalf.
(See Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).)
PAGA does not create substantive rights. It “ ‘ “is simply a procedural
statute allowing an aggrieved employee to recover civil penalties—for Labor
Code violations—that otherwise would be sought by state labor law
enforcement agencies.” ’ ” (Bautista v. Fantasy Activewear, Inc. (2020) 52
Cal.App.5th 650, 657.) Seventy-five percent of the penalties recovered go to
the LWDA; the remainder is disbursed to the aggrieved employees. (§ 2699,
4
subd. (i).) A prevailing plaintiff is also entitled to reasonable attorney’s fees
and costs. (Id., subd. (g)(1).) Only an “ ‘aggrieved employee’ ” has standing to
prosecute a PAGA action, which the statute defines as “any person who was
employed by the alleged violator and against whom one or more of the alleged
violations was committed.” (§ 2699, subd. (c).)
In PAGA parlance, Labor Code violations suffered by the plaintiff are
“individual claims.” (See Viking River, supra, 142 S.Ct. at p. 1916.) The
statute, however, allows an aggrieved employee to join claims for offenses
committed against fellow employees. These are called “non-individual”
claims. (Ibid.)

B. Iskanian

In Iskanian, the California Supreme Court considered whether an
employer could limit its PAGA exposure by contract. The answer was no.
An employee’s right to bring a PAGA action “is unwaivable.” (Iskanian,
supra, 59 Cal.4th at p. 383.) This is because an employee’s agreement to
waive their right to bring a PAGA action would “disable one of the primary
mechanisms for enforcing the Labor Code,” and as such was against public

policy. (Iskanian, at p. 383.)4
The Iskanian court also considered whether the FAA preempted its
rule against PAGA waivers. It found no preemption 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.” (Iskanian,
supra, 59 Cal.4th at p. 384.) In a PAGA action, “the state is the real party in
interest” and “[t]here is no indication that the FAA was intended to govern

4 “All contracts which have for their object, directly or indirectly, to
exempt anyone from responsibility for his own . . . violation of law, whether
willful or negligent, are against the policy of the law.” (Civ. Code, § 1668.)
5
disputes between the government in its law enforcement capacity and private
individuals.” (Iskanian, at p. 385.)
Additionally, Iskanian rejected the employer’s argument that the
particular waiver it drafted should be upheld because it only waived
nonindividual PAGA claims and preserved the employee’s right to arbitrate
individual ones. (Iskanian, supra, 59 Cal.4th at pp. 383–384.) Appellate
courts interpreted this aspect of Iskanian “as prohibiting splitting PAGA
claims into individual and nonindividual components to permit arbitration of
the individual claims.” (Lewis v. Simplified Labor Staffing Solutions, Inc.
(2022) 85 Cal.App.5th 983, 993.)
Based on Iskanian, California courts refused to enforce predispute
agreements to arbitrate PAGA claims. The rationale was that an employee
cannot be “aggrieved” before a violation occurs. And until the employee is
“aggrieved,” they have no authority to act as the State’s agent. As one court
explained, “[A]n agreement to arbitrate the PAGA claims would not be
enforceable unless it was made after the former employee became a PAGA
authorized aggrieved employee (i.e., an agent of the state).” (Herrera v.
Doctors Medical Center of Modesto (2021) 67 Cal.App.5th 538, 550, fn. 3.)
This rule and the logic behind it seemed sound—until Viking River.

C. Viking River

In Viking River, the United States Supreme Court considered whether
the FAA preempts California’s rule invalidating contractual waivers of the

right to assert PAGA claims.5 (Viking River, supra, 142 S.Ct. at p. 1913.)

5 Under the FAA, a “written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a controversy
thereafter arising . . . shall be valid, irrevocable, and enforceable . . . .”
(9 U.S.C., § 2.) The statute has been interpreted to embody “a liberal federal
6
The court’s analysis began by explaining that PAGA actions are
“representative” in two distinct ways. First, they are all representative in
the sense that the aggrieved employee represents the State. (Viking River,
at p. 1916.) Second, some PAGA actions are also predicated on Labor Code
violations that the defendant allegedly committed against other aggrieved
employees (i.e., not the plaintiff). (See Viking River, at p. 1916.) Because the
statute allows joinder of nonindividual claims, a PAGA action is also
“representative” in the sense that the named plaintiff represents fellow
aggrieved employees.
As discussed above, under Iskanian an employee cannot waive the right
to bring a PAGA action. In Viking River, the court concluded that because
the FAA is concerned with the forum in which disputes are resolved, not with
the substantive law that resolves them, it did not preempt this rule. (Viking
River, supra, 142 S.Ct. at p. 1919.) Thus, even after Viking River, a
contractual waiver of the right to prosecute PAGA claims is unenforceable as
against California public policy.
However, Iskanian’s secondary rule—prohibiting a PAGA action from
being split into separate individual and nonindividual actions—is procedural.
Viking River holds that the FAA preempts this rule. If splitting were
allowed, the court reasoned, parties might prefer to resolve higher-stakes
nonindividual claims in a court, where appellate review is available to correct
errors, but to arbitrate lower-stakes individual claims. (Viking River, supra,
142 S.Ct. at p. 1924.) But Iskanian’s no-splitting rule “circumscribes the
freedom of parties to determine ‘the issues subject to arbitration’ and the
‘rules by which they will arbitrate’ ” by imposing on them an all-or-nothing

policy favoring arbitration.” (Moses H., Cone Memorial Hosp. v. Mercury
Constr. Corp. (1983) 460 U.S. 1, 24.)
7
choice: arbitrate both individual and nonindividual claims or forego
arbitration entirely. (Viking River, at p. 1923.) According to the court,
“This combination of standing to act on behalf of a sovereign and mandatory
freeform joinder allows plaintiffs to unite a massive number of claims in a
single-package suit” and “ ‘arbitration is poorly suited to the higher stakes’ of
massive-scale disputes of this kind.” (Ibid.)
As a result of these two aspects of Viking River, and assuming the
agreement is otherwise enforceable: (1) an employee’s waiver of the right to
bring a PAGA action is unenforceable; however, (2) where a predispute
agreement provides for arbitrating only individual PAGA claims, that portion
of the action may be split off and compelled to arbitration, while the
remaining nonindividual claims remain for disposition in court.
Here, the Agreement purports to waive Nickson’s right “to make any
claims . . . in a private attorney general capacity.” That waiver is
unenforceable as a matter of state law. (Viking River, supra, 142 S.Ct. at
pp. 1924–1925.)
The Agreement, however, contains a severability clause stating, “If any
provision of this Agreement is determined to be void or otherwise
unenforceable, such determination shall not affect the validity of the
remainder of the Agreement.” Accordingly, Shemran is entitled to enforce
other terms of the Agreement, unless they are invalid for some independent
reason. (See Viking River, supra, 142 S.Ct. at p. 1925 [applying severability

clause].)6

6 A severability clause “evidence[s] the parties’ intent that, to the extent
possible, the valid provisions of the contract[ ] be given effect, even if some
provision is found to be invalid or unlawful.” (Baeza v. Superior Court (2011)
201 Cal.App.4th 1214, 1230.) Nickson contends, however, that the provision
here should be ignored because it does “not specifically permit severance of
8
 In defining the scope of arbitrable claims, the Agreement provides that
only individual PAGA claims can be arbitrated: “All claims that are covered
by this Agreement can only be brought by me . . . on an individual basis.”
Under Viking River, this is enforceable. Therefore, the order denying
Shemran’s motion to compel arbitration is incorrect. Nickson’s individual
PAGA claims can be arbitrated, while his nonindividual PAGA claims
cannot—unless the Agreement is unenforceable on some other ground(s).

D. Unconscionability

Under the FAA, generally applicable contract defenses (such as
unconscionability) may invalidate an arbitration agreement if it “does not
interfere ‘with fundamental attributes of arbitration.’ ” (Prima Donna
Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 37.)
Attempting to sidestep the impact of Viking River, Nickson’s principal
argument on appeal is that the Agreement is still unenforceable because it is
“is rife with provisions that are procedurally and substantively
unconscionable.” He explains that although he raised this issue in the trial
court, it was not considered because the motion was denied on other grounds

(i.e., Iskanian).7

the unlawful portion of the PAGA waiver.” (Italics added.) But the
severability language in this case is even broader in scope than the one
applied in Viking River, which provided that if the “waiver provision” was
invalid, any portion of the waiver that remains valid would be enforced in
arbitration. (Viking River, supra, 142 S.Ct. at p. 1925.) According to the
plain and unambiguous terms of the severability provision here, the
invalidity of the PAGA waiver does not affect the validity of the remainder of
the Agreement.
7 The record on appeal does not contain Nickson’s opposition to the
motion to compel arbitration, so we are unable to confirm his claim to have
raised the issue below. Nor can we determine what unconscionability
9
 Nickson asks us to remand to the trial court to decide whether the
Agreement is unconscionable. Alternatively, he urges us to decide the issue
as a matter of law for the first time on appeal. We decline both requests
because the parties agreed that the arbitrator—not the court—would decide

enforceability issues.8
The Agreement contains what is commonly called a “delegation clause.”
It provides that “[t]he Arbitrator, and not any . . . court” has “exclusive
authority to resolve . . . disputes” involving “enforceability” of the Agreement,
including but not limited to, any claim that all or any part of this Agreement
is void or voidable.” The plain meaning requires the issue of
unconscionability to be decided in arbitration. Case law points in that
direction too.

arguments he actually made in the trial court and would have, therefore,
preserved for appeal. Of course, Shemran was required to include Nickson’s
opposition in the appellant’s appendix. (Cal. Rules of Court, rule
8.124(b)(1)(B) [The appellant’s appendix “must contain . . . any item that the
appellant should reasonably assume the respondent will rely on”].) But
Nickson was not without remedies. He could have included the opposition in
a respondent’s appendix. (Id., rule 8.124(b)(5).) Alternatively, a timely
motion to augment could have been filed. (Id., rule 8.155(a)(1)(A).) He did
neither. Nevertheless, because we resolve the unconscionability issue based
on the undisputed terms of the Agreement, we consider the point despite
Nickson’s arguable forfeiture.
8 Although the parties’ briefs did not address whether unconscionability
was a matter delegated exclusively to the arbitrator to decide, more than a
month before oral argument we asked counsel to be prepared to discuss it. At
oral argument Nickson’s attorney lamented being deprived of an opportunity
to brief the issue. In response to a question from the bench asking if he was
requesting leave to file a supplemental brief, counsel said, “Briefing may be
helpful,” and would give his client “a fair shake.” We gave counsel 10 days to
submit a request to file a supplemental brief on the unconscionability issue
that explained what additional arguments he intended to address. The 10
days has now elapsed without a request being filed.
10
 The United States Supreme Court considered an identically worded
provision in Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63 (Rent-A-
Center). There, the agreement gave the arbitrator “ ‘exclusive authority to
resolve any dispute relating to the . . . enforceability . . . of this Agreement
including, but not limited to any claim that all or any part of this Agreement
is void or voidable.’ ” (Id. at p. 66.) In seeking to avoid arbitration, the
plaintiff asserted the entire agreement was unconscionable, but he did not
challenge the delegation provision in particular. (Id. at pp. 71–73.) The court
first considered whether the parties’ intent to submit enforcement issues
exclusively to the arbitrator was “ ‘clear and unmistakable.’ ” (Id. at p. 69,
fn. 1.) It was. (Ibid.) Next, the court concluded that because the delegation
clause was severable from the remainder of the arbitration agreement, the
issue of unconscionability was required to be litigated in arbitration and not

in court.9 (Rent-A-Center, at pp. 72–76.)
Thus, under Rent-A-Center, “it is important to determine whether the
party is making a specific challenge to the enforceability of the delegation
clause or is simply arguing that the agreement as a whole is unenforceable.
If the challenge is to the agreement as a whole—even if it applies equally to

9 There is a practical necessity for distinguishing between a claim that
(1) the entire agreement is unconscionable, and (2) the delegation clause in
particular is unconscionable. If the arbitrator concludes that the agreement
is unconscionable, then the entire agreement, including the delegation
clause, would be unenforceable—a finding that would undermine the
arbitrator’s authority to make that finding in the first place. “For this
reason, courts have treated the delegation clause as a separate agreement to
arbitrate solely the issues of enforceability. In other words, courts
have separately enforced an enforceable delegation clause; thus, it has been
held that whether the arbitration agreement as a whole is ultimately held to
be unenforceable will have no bearing on the enforcement of the delegation
clause itself . . . .” (Malone v. Superior Court (2014) 226 Cal.App.4th 1551,
1559 (Malone).)
11
the delegation clause—the delegation clause is . . . enforced . . . [and] the
arbitrator, not the court, will determine whether the agreement is
enforceable.” (Malone, supra, 226 Cal.App.4th at pp. 1559–1560.)
Here, as in Rent-A-Center, the Agreement clearly and unmistakably
assigns the enforceability issue to the arbitrator. It states that the arbitrator
“and not any” court, “shall have exclusive authority” to resolve disputes
regarding enforceability of the Agreement. In B.D. v. Blizzard
Entertainment, Inc. (2022) 76 Cal.App.5th 931, 957, this court held that
nearly identical language (“ ‘[t]he arbitrator shall determine the scope and
enforceability of this arbitration agreement’ ”) “ ‘clearly and unmistakably
states’ ” that the arbitrator has authority to decide “ ‘all issues of
arbitrability.’ ” (Ibid.) The same conclusion is compelled here.
Moreover, Nickson’s claim of unconscionability is directed against the
entire Agreement, not the delegation clause in particular. He contends the
Agreement is procedurally unconscionable because (1) it was presented on a
take-it-or-leave-it basis; (2) he was required to sign it to begin employment;
(3) it was provided to him not as a stand-alone document, but as part of his
“on-boarding procedure”; and (4) the Agreement claims to incorporate AAA
arbitration rules but did not attach them. Likewise, the substantive attacks
are directed to the Agreement as a whole, not specifically the delegation
clause. Nickson contends, for example, that the “arbitration agreement” is
substantively unconscionable because it (1) purports to relinquish
“unwaivable statutory rights”; (2) gives the arbitrator discretion to deny an
award of attorney’s fees in the event he prevails, whereas the Labor Code
gives a court no such discretion; and (3) does not provide for judicial review of
the arbitrator’s decision.

12
 We conclude, therefore, that this case falls squarely within the Rent-A-
Center rule. Here, as in that case, a delegation clause is contained in an
arbitration agreement. In both cases, the employee has challenged the
enforceability of the agreement as a whole, not the delegation clause in
particular. Finally, as in Rent-A-Center, the delegation to the arbitrator to
decide enforceability is clear and unmistakable. Thus, it is for the arbitrator,
not a court, to determine whether the Agreement is unconscionable.

E. The Nonindividual Claims

As explained, Nickson’s individual PAGA claims must be arbitrated.
But what about his nonindividual claims? In a portion of the Viking River
opinion that has been characterized as “dicta,”10 the Supreme Court
concluded that “PAGA provides no mechanism to enable a court to adjudicate
non-individual PAGA claims once an individual claim has been committed to
a separate proceeding.” (Viking River, supra, 142 S.Ct. at p. 1925.) The court
reasoned that under PAGA, “a plaintiff can maintain non-individual PAGA
claims in an action only by virtue of also maintaining an individual claim in
that action.” (Ibid.) Thus, “[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.”
(Ibid.) Accordingly, Viking River concluded, “the correct course is to dismiss

[the plaintiff’s] remaining claims.”11 (Viking River, at p. 1925.)

10 Mills v. Facility Solutions Group (2022) 84 Cal.App.5th 1035, 1064.
11 The Chief Justice, together with Justices Barrett and Kavanaugh,
declined to support the dismissal of nonindividual PAGA claims. (Viking
River, supra, 142 S.Ct. at p. 1926 (conc. opn. of Barrett, J.) [Justice Barrett
concurring in part and in the judgment, declining to join part IV, which
“addresses disputed state-law questions as well as arguments not pressed or
passed upon in this case”].) As Justice Sotomayor made clear, the Supreme
13
 Nickson contends Viking River’s interpretation of state law is both not
binding and incorrect. Not surprisingly, Shemran sees it differently. We
conclude Nickson is correct.
When “a cause of action is based on statute, standing rests on the
provision’s language, its underlying purpose, and the legislative intent.”
(Kim, supra, 9 Cal.5th at p. 83.) “The plain language of section 2699(c) has
only two requirements for PAGA standing.” (Kim, at p. 83.) First, the
plaintiff must be an “aggrieved employee,” which the statute defines as
someone “ ‘who was employed by the alleged violator.’ ” (Id. at pp. 83–84.)
Second, plaintiff must be a person “ ‘against whom one or more of the alleged
violations was committed.’ ” (Ibid.)
The court in Kim determined that an employee who settled or
dismissed their individual PAGA claim retained standing to prosecute
nonindividual PAGA claims. As the court explained, PAGA standing is
defined by statute “in terms of violations, not injury.” (Kim, supra, 9 Cal.5th
at p. 84.) Thus, 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.” (Kim, at p. 84.)
The court found that “[n]othing in the legislative history suggests the
Legislature intended to make PAGA standing dependent on the existence of
an unredressed injury, or the maintenance of a separate, unresolved claim.”
(Kim, at pp. 90–91.)
We followed Kim in precisely this manner when deciding Johnson,
supra, 66 Cal.App.5th 924. There, the plaintiff alleged a single cause of

Court was opining on what it conceded could be a mistaken view of California
law. (Viking River, at p. 1925 (conc. opn. of Sotomayor, J.) [“[I]f this Court’s
understanding of state law is wrong, California courts, in an appropriate
case, will have the last word.”].)
14
action under PAGA. The employer demurred on standing grounds, asserting
the plaintiff lacked standing because her individual PAGA claims were time-
barred. Rejecting the employer’s argument, we explained:

“Johnson alleged she is employed by [defendant] and that
she personally suffered at least one Labor Code violation on
which the PAGA claim is based. [Citations.] The fact that
Johnson’s individual claim may be time-barred does not
nullify the alleged Labor Code violations nor strip Johnson
of her standing to pursue PAGA remedies.” (Johnson, at
p. 930.)

Thus, Kim teaches that on the issue of standing—whether individual
PAGA claims are severed from nonindividual ones is not even relevant, much
less decisive. As Kim explained, “the Legislature did not intend to link PAGA
standing to the maintenance of individual claims when such claims have
been alleged” and “[t]his expansive approach to standing serves the state’s
interest in vigorous enforcement.” (Kim, supra, 9 Cal.5th at p. 85.) We
therefore conclude that Nickson has standing to litigate nonindividual PAGA
claims in the superior court notwithstanding his agreement to arbitrate
individual PAGA claims. (Accord Piplack v. In-N-Out Burgers (2023) 88
Cal.App.5th 1281, 1292 [following Viking River on FAA preemption, but Kim
on PAGA standing for nonindividual claims]; Galarsa v. Dolgen California,

LLC (2023) 88 Cal.App.5th 639, 652–655 [same].)12

12 A federal district court has reached the same conclusion, followed Kim,
and like us respectfully declined to apply the contrary dicta in Viking River.
(Shams v. Revature LLC (N.D.Cal., 2022, No. 22-cv-01745-NC) 2022 U.S.
Dist. Lexis 149682.)
15
 DISPOSITION

The order denying the motion to compel arbitration is reversed with
directions to enter a new order granting the motion, but only with respect to
Nickson’s individual PAGA claims. The nonindividual PAGA claims remain
pending in the superior court. We leave management of the superior court
litigation during the pendency of arbitration to the trial court’s sound
discretion.

In the interests of justice, each party shall bear their own costs on
appeal.

DATO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

BUCHANAN, J.

16