A Typology Of PAGA Claims.
Tricia Galarsa v. Dolgen California, LLC, F082040A (5th Dist. 2/24/23) (Franson, Pena, Snauffer), is an addition to the growing cottage industry of cases seeking to make sense of Viking River Cruises, Inc. v. Moriana, 596 U.S. ___ [142 S.Ct. 1906] (2022) (Viking River). The case reverses a trial court order rejecting arbitration of individual PAGA claims and affirms insofar as it also rejected arbitration of representative PAGA claims.
The logic of Viking River is something like this: California case law rejected the splitting of PAGA claims into individual and representative claims. California law allowed representative claims to be litigated. The Federal Arbitration Act (FAA) and Supreme Court cases require individual PAGA claims subject to arbitration to be arbitrated. If representative claims cannot be arbitrated, individual claims must be arbitrated, and individual and representative claims can't be split, then the individual claims get to be arbitrated and severed from the representative claims, which must be dismissed, because no "aggrieved" individual will then have standing for the representative claims in litigation.
Galarsa develops a typology of PAGA claims. Type A claims are those seeking a civil penalty for violation of the Labor Code suffered by the plaintiff and covered by an arbitration agreement subject to the FAA. Type O claims are for those harms suffered by an employee other than plaintiff. Type A and Type O both apply to claims for which, before the enactment of PAGA, the civil penalties sought could only be enforced by the state's labor enforcement agencies. Type A and O claims exclude restitution of wages, and include only claims subject to civil penalties and the 75-25 % split of the penalties between the State and the plaintiff.
Galarsa concludes that under Viking River, waiver of litigation of the representative claims was invalid. Galarsa explains the federal court's interpretation of state law does not bind the state court, and in particular, Galarsa concludes that Type A and Type O claims can be split. If the waiver of litigation of Type O claims is invalid even under Viking River, and Type A and Type O claims can be split, then Type A claims can be sent to arbitration, the invalid waiver of the right to litigate Type O claims can be severed, and Type O claims will not get sent to arbitration.
COMMENT: The creative argument in Galarsa is its prediction that the California Supreme Court would rule that Type A and Type O claims can be split. The argument is splitting of Type A and Type O claims is necessary to carry out effective enforcement of labor laws, by protecting Type O claims, and Type A and Type O claims do not involve the same primary right, with harms to the plaintiff and harms to others being different injuries. However logical this argument may be, it would seem to put Galarsa at odds with other California appellate cases insisting that PAGA claims cannot be split. A creative argument that has not yet been considered has not yet been decided.
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