throbber
APPENDIX
`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`NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
`
`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,
`
`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
`
`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
`
`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
`
`$5, then DoorDash kicks in the $1 base plus an additional $4” to meet the $10
`
`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
`
`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

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket