`APPENDIX
`
`
`
`SUPREME COURT
`FILED
`
`APPENDIX A
`k
`Court of Appeal, First Appellate District, Division Three - No. A159296
`Jorge Navarrete C er'-
`1
`
`MAR 1 0 2021
`
`IN THE SUPREME COURT OF CALIFORNIA
`
`S266497
`
`Deputy
`
`En Banc
`
`BRANDON CAMPBELL, Plaintiff and Respondent,
`
`V.
`
`DOORDASH INC., Defendant and Appellant.
`
`The petition for review is denied.
`
`CANTIL-SAKAUYE
`Chief Justice
`
`1a
`
`
`
`APPENDIX B
`Filed 11/30/20 Campbell v. Doordash CA1/3
`NOT TO BE PUBLISHED IN OFFICIAL REPORTS
`
`California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
`publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
`ordered published for purposes of rule 8.1115.
`
`IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
`
`FIRST APPELLATE DISTRICT
`
`DIVISION THREE
`
`BRANDON CAMPBELL,
`
`Plaintiff and Respondent,
`
` A159296
`
`v.
`
`DOORDASH INC.,
`
`Defendant and Appellant.
`
` (City & County of San
` Francisco No. CGC-19-
` 575383)
`
`DoorDash Inc. (DoorDash) appeals from the trial court’s order denying
`
`its petition to compel arbitration of a Private Attorney General Act (PAGA)
`
`action brought by its employee, Brandon Campbell (Campbell). DoorDash
`
`acknowledges that the California Supreme Court case of Iskanian v. CLS
`
`Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) precludes
`
`California courts from enforcing pre-dispute waivers of the right to litigate
`
`PAGA claims, but argues Iskanian is no longer good law in light of
`
`subsequent United States Supreme Court cases. Other courts, including
`
`most recently Division Two of our district in Olson v. Lyft, Inc. (Oct. 29, 2020,
`
`No. A156322) 2020 WL 6336102, have uniformly rejected this argument. We
`
`join them in holding Iskanian is good law and California courts remain bound
`
`2a
`
`
`
`by it. Accordingly, we affirm the order denying arbitration of Campbell’s
`
`PAGA action.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`DoorDash is a same-day, on-demand delivery company that delivers
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`goods from local restaurants and stores to its customers for a fee. DoorDash
`
`guarantees a certain minimum pay to its workers, known as Dashers, for
`
`each delivery. The guaranteed minimum pay amount depends on various
`
`factors such as order size, distance, and delivery logistics. To place an order,
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`a customer uses the DoorDash smartphone app and selects items to be
`
`delivered from a participating business. The app displays a price, which
`
`includes the total cost of the items and a service/delivery fee. When the
`
`customer places an order, the customer’s credit card is charged and a Dasher
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`picks up the items from the business and delivers them to the customer. The
`
`customer may tip the Dasher through the app.
`
`In early 2019, several news sources reported DoorDash had been using
`
`customer tips to satisfy its Dashers’ guaranteed minimum pay. These reports
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`explained that if the guaranteed minimum pay for a job is $10, DoorDash
`
`first pays its Dasher a “base pay” of $1. “If that minimum is $10 and you tip
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`$5, then DoorDash kicks in the $1 base plus an additional $4” to meet the $10
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`minimum. “If . . . you tip $9, then DoorDash pays only the $1 base” to meet
`
`the $10 minimum. “If . . . you tip nothing, DoorDash pays the $1 base plus
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`an additional $9.” The reports stated: “DoorDash’s policy of ‘[a]djusting [its]
`
`contribution, depending on the tip, flies in the face of how customers have
`
`traditionally viewed the act of tipping: as a bonus that’s in addition to a set, if
`
`low, base salary from the company.’ ” “When people add additional tips to
`
`their delivery service tab, they reasonably assume they are tipping the
`
`delivery person—rather than the company.” “ ‘Consumers are basically
`
`3a
`
`
`
`subsidizing [DoorDash’s] promised minimum payment, and it’s extremely
`
`deceptive.’ ”
`
`On April 19, 2019, Campbell, a Dasher, filed a PAGA action (Lab. Code,
`
`§§ 2698 et seq.) against DoorDash alleging DoorDash’s tipping policy violated
`
`Labor Code section 351, which provides that an employer shall not “collect,
`
`take, or receive” an employee’s gratuity, and section 353, which requires
`
`employers to “keep accurate records of all gratuities received.”
`
`DoorDash filed a petition to compel arbitration and stay proceedings1
`
`on the basis that its Independent Contractor Agreement, which Campbell
`
`signed, provided that “any and all claims arising out of or relating to this
`
`Agreement,” including “the payments received by [Dashers] for providing
`
`services to consumers,” shall be submitted to binding arbitration. The parties
`
`also waived their “right to have any dispute or claim brought, heard or
`
`arbitrated as, or to participate in, a class action, collective action and/or
`
`representative action—including but not limited to actions brought pursuant
`
`to . . . PAGA. . . .” DoorDash recognized that the California Supreme Court
`
`case of Iskanian prohibits the pre-dispute waiver of the right to litigate
`
`PAGA claims, but argued Iskanian did not survive the United States
`
`Supreme Court’s decision in Epic Systems Corp. v. Lewis (2018) 138 S.Ct.
`
`1612 (Epic Systems), which “reiterated courts’ obligation to enforce
`
`arbitration agreements according to their terms.”
`
`Campbell opposed the petition, asserting the trial court was bound by
`
`Iskanian because California trial courts and Courts of Appeal must follow
`
`California Supreme Court decisions on federal questions unless the United
`
`States Supreme Court has decided the same issue differently. (Citing Correia
`
`1
`
`DoorDash’s request for a stay, which the trial court denied, is not at
`issue in this appeal.
`
`4a
`
`
`
`v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 603, 619 (Correia).)
`
`Campbell argued that because Epic Systems did not consider whether PAGA
`
`waivers are enforceable, the court remained bound by Iskanian. Campbell
`
`also argued there was nothing in Epic Systems that suggested Iskanian was
`
`wrongly decided.
`
`The trial court denied DoorDash’s petition to compel arbitration,
`
`stating “California courts are bound by Iskanian’s holding that a waiver of an
`
`employee’s right to bring a representative action in any forum violates public
`
`policy and that this rule is not preempted by the FAA [Federal Arbitration
`
`Act].” “ ‘Although the Epic court reaffirmed the broad preemptive scope of
`
`the [FAA], Epic did not address the specific issue before the Iskanian court
`
`involving a claim for civil penalties brought on behalf of the government and
`
`the enforceability of an agreement barring a PAGA representative action in
`
`any forum.’ ” (Quoting Correia, supra, 32 Cal.App.5th at pp. 619–620.)
`
`“Furthermore, there is no evidence that the State consented to any waiver of
`
`the employee’s right to bring the PAGA claim in court.” (Citing Correia,
`
`supra, 32 Cal.App.5th at pp. 624–625 [“we agree with [courts] that have held
`
`Iskanian’s view of a PAGA representative action necessarily means that this
`
`claim cannot be compelled to arbitration absent some evidence that the state
`
`consented to the waiver of the right to bring the PAGA claim in court”].)
`
`DoorDash appeals.
`
`DISCUSSION
`
`We conclude the trial court properly denied DoorDash’s petition to
`
`compel arbitration of Campbell’s PAGA action.
`
`PAGA “authorizes an employee to bring an action for civil penalties on
`
`behalf of the state against his or her employer for Labor Code violations
`
`committed against the employee and fellow employees, with most of the
`
`5a
`
`
`
`proceeds of that litigation going to the state.” (Iskanian, supra, 59 Cal.4th at
`
`p. 360.) The Legislature enacted PAGA “to remedy systemic
`
`underenforcement of many worker protections” (Williams v. Superior Court
`
`(2017) 3 Cal.5th 531, 545) and to enhance the state’s enforcement of labor
`
`laws by “allow[ing] aggrieved employees, acting as private attorneys general,
`
`to recover civil penalties for Labor Code violations, with the understanding
`
`that labor law enforcement agencies [are] to retain primacy over private
`
`enforcement efforts” (Iskanian, supra, 59 Cal.4th at p. 379). Although PAGA
`
`empowers employees to act as the agent of the Labor Commissioner, the
`
`governmental entity “is always the real party in interest.” (Id. at p. 382.) A
`
`PAGA action is therefore “a type of qui tam action” “ ‘ “designed to protect the
`
`public and not to benefit private parties.” ’ ” (Id. at pp. 382, 387.)
`
`In Iskanian, the California Supreme Court examined two related
`
`questions regarding the pre-dispute waiver of PAGA claims: (1) whether
`
`arbitration agreements requiring employees to waive their right to bring
`
`PAGA actions are unenforceable under state law, and if so, (2) whether the
`
`FAA preempts that rule. (Iskanian, supra, 59 Cal.4th at p. 378.) First, the
`
`court held that pre-dispute waivers requiring employees to relinquish the
`
`right to assert a PAGA claim on behalf of other employees were prohibited, as
`
`such waivers violate public policy and “harm the state’s interests in enforcing
`
`the Labor Code and in receiving the proceeds of civil penalties used to deter
`
`violations.” (Id. at p. 383.) Second, the court held the FAA did not preempt
`
`this rule invalidating PAGA waivers in arbitration agreements 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
`
`[Labor and Workforce Development] Agency.” (Id. at p. 384.) PAGA actions
`
`“directly enforce the state’s interest in penalizing and deterring employers
`
`6a
`
`
`
`who violate California’s labor laws.” (Id. at p. 387.) The FAA, which “aims to
`
`promote arbitration of claims belonging to the private parties to an
`
`arbitration agreement,” “does not aim to promote arbitration of claims
`
`belonging to a government agency.” (Id. at p. 388.) This “is no less true when
`
`such a claim is brought by a statutorily designated proxy for the agency as
`
`when the claim is brought by the agency itself. The fundamental character of
`
`the claim as a public enforcement action is the same in both instances.”
`
`(Ibid.)
`
`Four years after Iskanian was decided, the United States Supreme
`
`Court in Epic Systems addressed the FAA’s preemptive effect over a provision
`
`of the National Labor Relations Act (NLRA) that guarantees workers the
`
`right to engage in “concerted activities.” (Epic Systems, supra, 138 S.Ct. at
`
`pp. 1619–1620, citing 29 U.S.C. § 157.) The employees in that case resisted
`
`arbitration on the ground that an arbitration agreement prohibiting class
`
`actions was illegal under the NLRA and therefore unenforceable. (Id. at
`
`p. 1622; see 9 U.S.C. § 2 [under the FAA, courts may refuse to enforce
`
`arbitration agreements “ ‘upon such grounds as exist at law or in equity for
`
`the revocation of any contract’ ”].) The United States Supreme Court
`
`disagreed and declined to “read a right to class actions into the NLRA.” (Id.
`
`at p. 1619.) The Court reiterated that the FAA instructs federal courts to
`
`enforce arbitration agreements according to their terms, and rejected any
`
`NLRA exception to the FAA. (Id. at p. 1624.)
`
`In the last two years since Epic Systems was decided, California courts
`
`have uniformly rejected the argument that Epic Systems overruled Iskanian.
`
`In Correia, supra, 32 Cal.App.5th at pp. 608, 619, the Court of Appeal held a
`
`pre-dispute waiver of PAGA claims was unenforceable and rejected the
`
`employer’s argument that “Iskanian is no longer binding [in light of] . . . Epic
`
`7a
`
`
`
`Systems.” Noting that California trial and appellate courts are bound by the
`
`California Supreme Court’s decisions on federal questions unless the United
`
`States Supreme Court has decided the same question differently, the court
`
`stated: “Although the Epic court reaffirmed the broad preemptive scope of
`
`the [FAA], Epic did not address the specific issues before the Iskanian court
`
`involving a claim for civil penalties brought on behalf of the government and
`
`the enforceability of an agreement barring a PAGA representative action in
`
`any forum.” (Id. at p. 609.) The claim at issue in Epic Systems differed
`
`“fundamentally from a PAGA claim” because the employee in Epic Systems
`
`was “asserting claims on behalf of other employees,” whereas a plaintiff who
`
`brings a PAGA action “has been deputized by the state” to act “ ‘as “the proxy
`
`or agent” of the state’ ” to enforce the state’s labor laws. (Correia, supra, at
`
`pp. 619–620.) Because Epic Systems did not “decide the same question
`
`differently,” its “interpretation of the FAA’s preemptive scope [did] not defeat
`
`Iskanian’s holding or reasoning for purposes of an intermediate appellate
`
`court applying the law.” (Ibid.)
`
`Similarly, in Collie v. Icee Company (2020) 52 Cal.App.5th 477, 482
`
`(Collie), the Court of Appeal rejected an employer’s argument that “Iskanian
`
`[was] no longer good law after the United States Supreme Court’s decision in
`
`Epic.” The court noted Epic Systems did not address “the unique nature of a
`
`PAGA claim”—that is, the “ ‘ “ ‘PAGA litigant’s status as “the proxy or agent”
`
`of the state’ and his or her ‘substantive role in enforcing our labor laws on
`
`behalf of state law enforcement agencies.’ ” ’ [Citation.]” (Collie, supra, at
`
`p. 483.) “Epic, therefore, does not undermine Iskanian’s . . .
`
`characterization[] of PAGA claims as law enforcement actions in which
`
`plaintiffs step into the shoes of the state.” (Collie, supra, at p. 483.) The
`
`court held that while Epic Systems “reconfirmed the breadth of the FAA,” a
`
`8a
`
`
`
`pre-dispute PAGA waiver remained unenforceable without a showing that
`
`the state—which is the real party in interest in PAGA actions—consented to
`
`the waiver. (Collie, supra, at p. 483; see also Julian v. Glenair, Inc. (2017)
`
`17 Cal.App.5th 853, 869–872 [employee’s pre-dispute agreement to arbitrate
`
`PAGA claims is unenforceable absent a showing the state also consented to
`
`the agreement because the state is the real party in interest]; Betancourt v.
`
`Prudential Overall Supply (2017) 9 Cal.App.5th 439, 445–449 [same].)
`
`Several other Courts of Appeal, including Division Two of our district,
`
`have reached the same conclusion—that Epic Systems did not overrule
`
`Iskanian. (See, e.g., Zakaryan v. The Men’s Wearhouse, Inc. (2019)
`
`33 Cal.App.5th 659, 671 [“Epic Systems did not overrule Iskanian”], overruled
`
`on another ground by ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 197,
`
`fn. 8; Provost v. YourMechanic, Inc. (Oct. 15, 2020, No. D076569) 2020 WL
`
`6074632, at pp. *7, 8 [“reaffirm[ing]” the analysis and decision in Correia that
`
`Epic Systems did not overrule Iskanian]; Olson v. Lyft, Inc., supra, 2020 WL
`
`6336102 [Division Two case citing Correia with approval].) DoorDash urges
`
`us not to follow the above cases because “[a] decision of a Court of Appeal is
`
`not binding in the Courts of Appeal,” (quoting Witkin, Cal. Proc. 5th Appeal,
`
`§ 498), and because there are a number of purported flaws with the decisions.
`
`DoorDash asserts, for example, that the Zakaryan case did not include
`
`sufficient analysis and that the Court of Appeal in Correia “did not have the
`
`benefit of complete briefing on the issue” as the employer “devoted only four
`
`paragraphs of its brief to its Epic Systems argument.” We find the Court of
`
`Appeal cases to be thorough and well-reasoned and we join these courts in
`
`concluding Epic Systems did not overrule Iskanian.
`
`DoorDash also attempts to distinguish the cases on the basis that the
`
`arbitration agreement Campbell signed was not mandatory; instead, he
`
`9a
`
`
`
`simply “chose not to opt out of” it. DoorDash argues the FAA should apply
`
`“with particular force” to individuals who “voluntarily” choose arbitration.
`
`However, “ ‘Iskanian’s underlying public policy rationale—that a PAGA
`
`waiver circumvents the Legislature’s intent to empower employees to enforce
`
`the Labor Code as agency representatives and harms the state’s interest in
`
`enforcing the Labor Code—does not turn on how the employer and employee
`
`entered into the agreement, or the mandatory or voluntary nature of the
`
`employee’s initial consent to the agreement’ ”; rather, a “ ‘PAGA claim
`
`provides a remedy inuring to the state . . . and the law . . . broadly precludes
`
`private agreements to waive such [] rights.’ ” (Williams v. Superior Court
`
`(2015) 237 Cal.App.4th 642, 647–648, quoting Securitas Security Services
`
`USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109; see also Juarez v.
`
`Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1203 [refusing to
`
`enforce a pre-dispute waiver of a representative PAGA claim merely because
`
`the employee had the opportunity to opt out of the waiver].) Accordingly, it is
`
`immaterial whether Campbell voluntarily entered into the arbitration
`
`agreement or did so as a condition of becoming a Dasher for DoorDash.
`
`DISPOSITION
`
`The trial court’s order denying DoorDash’s petition to compel
`
`arbitration and stay proceedings is affirmed. Plaintiff Brandon Campbell
`
`shall recover his costs on appeal.
`
`10a
`
`
`
`_________________________
`Petrou, J.
`
`WE CONCUR:
`
`_________________________
`Siggins, P.J.
`
`_________________________
`Simons, J.*
`
`* Associate Presiding Justice of the Court of Appeal, First Appellate District,
`assigned by the Chief Justice pursuant to article VI, section 6 of the
`California Constitution.
`
`11a
`
`
`
`APPENDIX C
`SUPERIOR COURT OF CALIFORNIA
`COUNTY OF SAN FRANCISCO
`
`MINUTES
`
`November 07, 2019
`
` Department: 302
`
`BRANDON CAMPBELL
`
`Case Number: CGC-19-575383
`
` PLAINTIFF
`
`VS.
`
`Nature of Cause:
`DEFENDANT DOORDASH, INC.'s
`Petition To Compel Arbitration And
`Stay Proceedings.
`
`DOORDASH, INC., A DELAWARE
`CORPORATION et al
`
` DEFENDANT
`
`Present:
`
`Judge: ETHAN P. SCHULMAN
`Reporter: Court Reporter: Maria Torreano,
`CSR#8600, maria.torreano@gmail.com
`
`Clerk: M. GOODMAN
`Bailiff: Deputy Jaime
`
`Appearing for Plaintiff (s):
`
` Appearing for Defendant(s):
`
`John Bickford, Esq. 661-949-2595 of
`PARRIS
`
`Michael Holecek, Esq. 213-229-7000 of
`Gibson Dunn & Crutcher LLP for Defendant
`Door Dash.
`
`Defendant DoorDash Inc.’s petition to compel arbitration is denied. The Court cannot compel
`this representative PAGA action to arbitration. In Iskanian v. CLS Transportation Los Angeles,
`LLC (2014) 59 Cal.4th 348, our Supreme Court held that “where, as here, an employment
`agreement compels the waiver of representative claims under PAGA, it is contrary to public
`policy and unenforceable as a matter of state law.” (Id. at 384.) Further, the Court held that
`“California’s public policy prohibiting waiver of PAGA claims, whose sole purpose is to
`vindicate the [Labor and Workforce Development] Agency’s interest in enforcing the Labor
`Code, does not interfere with the FAA’s goal of promoting arbitration as a forum for private
`dispute resolution,” and therefore is not preempted by the Federal Arbitration Act. (Id. at 388-
`389; see also ZA, N.A. v. Superior Court (2019) 8 Cal.5th 175, 197 [“Iskanian established an
`
`Case Number: CGC-19-575383
`Case Title: BRANDON CAMPBELL VS. DOORDASH, INC., A DELAWARE
`CORPORATION ET AL
`
`-1-
`
`Date: November 07, 2019
`Form: C01006
`
`12a
`
`
`
`important principle: employers cannot compel employees to waive their right to enforce the
`state’s interests when the PAGA has empowered employees to do so.”].)
`
`California courts are bound by Iskanian’s holding that a waiver of an employee’s right to bring a
`representative action in any forum violates public policy and that this rule is not preempted by
`the FAA. (Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 616 [“[A] PAGA
`claim lies outside the FAA’s coverage because it is not a dispute between an employer and an
`employee arising out of their contractual relationship. It is a dispute between an employer and
`the state.”]; accord, Davis v. TWC Dealer Group, Inc. (Oct. 30, 2019) ---Cal.Rptr.3d----, 2019
`WL 5586867, at *8 [arbitration clause that improperly barred employee from arbitrating any
`PAGA claims was substantively unconscionable]; Subcontracting Concepts (CT), LLC v. De
`Melo (2019) 34 Cal.App.5th 201, 213 [same].) Although Defendant boldly asserts that Correia
`(and, presumably, the other cited cases) are “wrongly decided” (Reply at 8), those decisions are
`binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455;
`Correia, 32 Cal.App.5th at 620 [“On federal questions, intermediate appellate courts in
`California must follow the decisions of the California Supreme Court, unless the United States
`Supreme Court has decided the same question differently”].)
`
`In any event, contrary to Defendant’s argument, Epic Systems Corp. v. Lewis (2018) –U.S.–, 138
`S.Ct. 1612 did not overrule Iskanian. “Although the Epic court reaffirmed the broad preemptive
`scope of the Federal Arbitration Act, Epic did not address the specific issue before the Iskanian
`court involving a claim for civil penalties brought on behalf of the government and the
`enforceability of an agreement barring a PAGA representative action in any forum.” (Correia,
`32 Cal.App.5th at 609, 619-620; see also ZA, N.A., 8 Cal.5th at 196-197 [“the PAGA authorizes
`a representative action only for the purpose of seeking [civil] penalties for Labor Code
`violations, and an action to recover civil penalties is fundamentally a law enforcement action, not
`one for the benefit of private parties” (citations and internal quotations omitted)].) Furthermore,
`there is no evidence that the State consented to any waiver of the employee’s right to bring the
`PAGA claim in court. (See id. at 624-625 [“we agree with the California Courts of Appeal that
`have held Iskanian’s view of a PAGA representative action necessarily means that this claim
`cannot be compelled to arbitration absent some evidence that the state consented to the waiver of
`the right to bring the PAGA claim in court.”].)
`
`In the alternative, Defendant requests the Court to stay the action pursuant to Code of Civil
`Procedure section 1281.4. The Court denies such request. The mere pendency of another PAGA
`action does not bar another plaintiff’s PAGA claims. (Tan v. Grubhub, Inc. (N.D. Cal. 2016)
`171 F.Supp.3d 998, 1013 [“Defendants do not cite a single case in which the court held that two
`PAGA representatives cannot pursue the same PAGA claims at the same time. The Court
`declines to be the first to so hold”]; see also Albert v. Postmates Inc. (N.D. Cal. Mar. 5, 2019)
`2019 WL 1045785 at *6 [“PAGA does not itself prohibit concurrent actions by different
`plaintiffs or require a stay of subsequent actions. [Citation.] ‘State and federal courts in
`California have routinely permitted concurrent PAGA actions to proceed so long as there is only
`one PAGA judgment against a defendant for the same or similar claims for a single
`timeframe.’”].)
`
`Case Number: CGC-19-575383
`Case Title: BRANDON CAMPBELL VS. DOORDASH, INC., A DELAWARE
`CORPORATION ET AL
`
`-2-
`
`Date: November 07, 2019
`Form: C01006
`
`13a
`
`
`
`Counsel for Plaintiff to submit a proposed order that is verbatim with the Court's ruling and in
`compliance with CRC 3.1312.
`
`Judge: Ethan P. Schulman, Clerk: M. Goodman, Court Reporter: Maria Torreano, CSR#8600,
`maria.torreano@gmail.com, Reported. =(302/EPS)
`
`Case Number: CGC-19-575383
`Case Title: BRANDON CAMPBELL VS. DOORDASH, INC., A DELAWARE
`CORPORATION ET AL
`
`-3-
`
`Date: November 07, 2019
`Form: C01006
`
`14a
`
`14a
`
`
`
`APPENDIX D
`
`Statutory Provisions Involved
`
`9 U.S.C § 2. Validity, irrevocability, and enforcement of agreements to
`arbitrate
`
`A written provision in any maritime transaction or a contract evidencing a
`transaction involving commerce to settle by arbitration a controversy thereafter
`arising out of such contract or transaction, or the refusal to perform the whole or
`any part thereof, or an agreement in writing to submit to arbitration an existing
`controversy arising out of such a contract, transaction or refusal, shall be valid,
`irrevocable, and enforceable, save upon such grounds as exist at law or in equity for
`the revocation of any contract.
`
`(July 30, 1947, ch. 392, 61 Stat. 670.)
`
`Act Feb. 12, 1925, ch. 213, § 2, 43 Stat. 883.
`
`DERIVATION
`
`15a
`
`15a
`
`
`
`California Labor Code § 2699
`
`(a) 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.
`
`(b) For purposes of this part, “person” has the same meaning as defined in Section
`18.
`
`(c) For purposes of this part, “aggrieved employee” means any person who was
`employed by the alleged violator and against whom one or more of the alleged
`violations was committed.
`
`(d) For purposes of this part, “cure” means that the employer abates each violation
`alleged by any aggrieved employee, the employer is in compliance with the
`underlying statutes as specified in the notice required by this part, and any
`aggrieved employee is made whole. A violation of paragraph (6) or (8) of subdivision
`(a) of Section 226 shall only be considered cured upon a showing that the employer
`has provided a fully compliant, itemized wage statement to each aggrieved
`employee for each pay period for the three-year period prior to the date of the
`written notice sent pursuant to paragraph (1) of subdivision (c) of Section 2699.3.
`
`(e)
`
`(1) For purposes of this part, whenever the Labor and Workforce
`Development Agency, or any of its departments, divisions, commissions,
`boards, agencies, or employees, has discretion to assess a civil penalty, a
`court is authorized to exercise the same discretion, subject to the same
`limitations and conditions, to assess a civil penalty.
`
`(2) In any action by an aggrieved employee seeking recovery of a civil penalty
`available under subdivision (a) or (f), a court may award a lesser amount
`than the maximum civil penalty amount specified by this part if, based on the
`facts and circumstances of the particular case, to do otherwise would result in
`an award that is unjust, arbitrary and oppressive, or confiscatory.
`
`(f) For all provisions of this code except those for which a civil penalty is specifically
`provided, there is established a civil penalty for a violation of these provisions, as
`follows:
`
`(1) If, at the time of the alleged violation, the person does not employ one or
`more employees, the civil penalty is five hundred dollars ($500).
`
`16a
`
`
`
`(2) If, at the time of the alleged violation, the person employs one or more
`employees, the civil penalty is one hundred dollars ($100) for each aggrieved
`employee per pay period for the initial violation and two hundred dollars
`($200) for each aggrieved employee per pay period for each subsequent
`violation.
`
`(3) If the alleged violation is a failure to act by the Labor and Workplace
`Development Agency, or any of its departments, divisions, commissions,
`boards, agencies, or employees, there shall be no civil penalty.
`
`(g)
`
`(1) Except as provided in paragraph (2), an aggrieved employee may recover
`the civil penalty described in subdivision (f) in a civil action pursuant to the
`procedures specified in Section 2699.3 filed on behalf of himself or herself and
`other current or former employees against whom one or more of the alleged
`violations was committed. Any employee who prevails in any action shall be
`entitled to an award of reasonable attorney’s fees and costs, including any
`filing fee paid pursuant to subparagraph (B) of paragraph (1) of subdivision
`(a) or subparagraph (B) of paragraph (1) of subdivision (c) of Section 2699.3.
`Nothing in this part shall operate to limit an employee’s right to pursue or
`recover other remedies available under state or federal law, either separately
`or concurrently with an action taken under this part.
`
`(2) No action shall be brought under this part for any violation of a posting,
`notice, agency reporting, or filing requirement of this code, except where the
`filing or reporting requirement involves mandatory payroll or workplace
`injury reporting.
`
`(h) No action may be brought under this section by an aggrieved employee if the
`agency or any of its departments, divisions, commissions, boards, agencies, or
`employees, on the same facts and theories, cites a person within the timeframes set
`forth in Section 2699.3 for a violation of the same section or sections of the Labor
`Code under which the aggrieved employee is attempting to recover a civil penalty on
`behalf of himself or herself or others or initiates a proceeding pursuant to Section
`98.3.
`
`(i) Except as provided in subdivision (j), civil penalties recovered by aggrieved
`employees shall be distributed as follows: 75 percent to the Labor and Workforce
`Development Agency for enforcement of labor laws, including the administration of
`this part, and for education of employers and employees about their rights and
`responsibilities under this code, to be continuously appropriated to supplement and
`not supplant the funding to the agency for those purposes; and 25 percent to the
`aggrieved employees.
`
`17a
`
`
`
`(j) Civil penalties recovered under paragraph (1) of subdivision (f) shall be
`distributed to the Labor and Workforce Development Agency for enforcement of
`labor laws, including the administration of this part, and for education of employers
`and employees about their rights and responsibilities under this code, to be
`continuously appropriated to supplement and not supplant the funding to the
`agency for those purposes.
`
`(k) Nothing contained in this part is intended to alter or otherwise affect the
`exclusive remedy provided by the workers’ compensation provisions of this code for
`liability against an employer for the compensation for any injury to or death of an
`employee arising out of and in the course of employment.
`
`(l)
`
`(1) For cases filed on or after July 1, 2016, the aggrieved employee or
`representative shall, within 10 days following commencement of a civil action
`pursuant to this part, provide the Labor and Workforce Development Agency
`with a file-stamped copy of the complaint that includes the case number
`assigned by the court.
`
`(2) The superior court shall review and approve any settlement of any civil
`action filed pursuant to this part. The proposed settlement shall be submitted
`to the agency at the same time that it is submitted to the court.
`
`(3) A copy of the superior court’s judgment in any civil action filed pursuant
`to this part and any other order in that action that either provides for or
`denies an award of civil penalties under this code shall be submitted to the
`agency within 10 days after entry of the judgment or order.
`
`(4) Items required to be submitted to the Labor and Workforce Development
`Agency under this subdivision or to the Division of Occupational Safety and
`Health pursuant to paragraph (4) of subdivision (b) of Section 2699.3, shall be
`transmitted online through the same system established for the filing of
`notices and requests under subdivisions (a) and (c) of Section 2699.3.
`
`(m) This section shall not apply to the recovery of administrative and civil penalties
`in connection with the workers’ compensation law as contained in Division 1
`(commencing with Section 50) and Division 4 (commencing with Section 3200),
`including, but not limited to, Sections 129.5 and 132a.
`
`(n) The agency or any of its departments, divisions, commissions, boards, or
`agencies may promulgate regulations to implement the provisions of this part.
`
`(Amended by Stats. 2016, Ch. 31, Sec. 189. (SB 836) Effective June 27, 2016.)
`
`18a
`
`
`
`APPENDIX E
`
`GIBSON, DUNN & CRUTCHER LLP
`JOSHUA S. LIPSHUTZ, SBN 242557
`jlipshutz@gibsondunn.com
`555 Mission Street, Suite 3000
`San Francisco, CA 94105-0921
`Telephone:
`415.393.8200
`Facsimile:
`415.393.8306
`THEANE EVANGELIS, SBN 243570
`tevangelis@gibsondunn.com
`MICHAEL HOLECEK, SBN 281034
`mholecek@gibsondunn.com
`ANDREW WILHELM, SBN 302849
` awilhelm@gibsondunn.com
`STEPHANIE BALITZER, SBN 316133
` sbalitzer@gibsondunn.com
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone:
`213.229.7000
`Facsimile:
`213.229.7520
`At