Tanguilig v. Bloomingdale's, Inc., A145283

CourtCalifornia Court of Appeals
Writing for the CourtBRUINIERS, J.
Citation210 Cal.Rptr.3d 352,5 Cal.App.5th 665
Parties Bernadette TANGUILIG, Plaintiff and Respondent, v. BLOOMINGDALE'S, INC., Defendant and Appellant.
Docket NumberA145283
Decision Date16 November 2016

5 Cal.App.5th 665
210 Cal.Rptr.3d 352

Bernadette TANGUILIG, Plaintiff and Respondent,
BLOOMINGDALE'S, INC., Defendant and Appellant.


Court of Appeal, First District, Division 5, California.

Filed November 16, 2016

Jackson Lewis, David S. Bradshaw, Nathan W. Austin, Sacramento, Patrick C. Mullin, San Francisco; and Michael C. Christman for Defendant and Appellant.

Cornerstone Law Group, Gordon W. Renneisen, Harry G. Lewis and Jennifer A. Donnellan, San Francisco, for Plaintiff and Respondent.


5 Cal.App.5th 670

Bernadette Tanguilig, an employee at Bloomingdale's, Inc. (Bloomingdale's), filed a representative action on behalf of herself and fellow employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq. ),1 alleging several Labor Code violations by the company. Bloomingdale's moved to compel arbitration of Tanguilig's "individual PAGA claim" and stay or dismiss the remainder of the complaint. The trial court denied the motion. We affirm. Under Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129 (Iskanian ) and consistent with the Federal Arbitration Act (FAA) (9 U.S.C. et seq.), a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement with an employer, and a PAGA claim (whether individual or representative)

210 Cal.Rptr.3d 354

cannot be ordered to arbitration without the state's consent.


Because this case turns on a proper understanding of PAGA and application of Supreme Court precedent, we begin with pertinent passages from Iskanian discussing these issues: " ‘In September 2003, the Legislature enacted [PAGA]. The Legislature declared that adequate financing of labor law enforcement was necessary to achieve maximum compliance with state labor laws, that staffing levels for labor law enforcement agencies had declined and were unlikely to keep pace with the future growth of the labor market, and that it was therefore in the public interest to allow aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts. (Stats. 2003, ch. 906, § 1.)

" ‘Under this legislation, an "aggrieved employee" may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (... § 2699, subd. (a).) Of the civil penalties recovered, 75 percent goes to the Labor and Workforce Development Agency, leaving the remaining 25 percent for the "aggrieved employees." (... § 2699, subd. (i).) [¶] Before bringing a civil action for statutory penalties, an employee must comply with ... section 2699.3. (... § 2699, subd. (a).) That statute requires the employee to give written notice of the alleged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and the notice must describe facts and theories supporting the violation. (... § 2699.3, subd. (a).) If the agency

5 Cal.App.5th 671

notifies the employee and the employer that it does not intend to investigate ..., or if the agency fails to respond within 33 days, the employee may then bring a civil action against the employer. (... § 2699.3, subd. (a)(2)(A).) If the agency decides to investigate, it then has 120 days to do so. If the agency decides not to issue a citation, or does not issue a citation within 158 days after the postmark date of the employee's notice, the employee may commence a civil action. (... § 2699.3, subd. (a)(2)(B).)’ (Arias [v. Superior Court (2009) ] 46 Cal.4th [969,] 980–981 [95 Cal.Rptr.3d 588, 209 P.3d 923], fn. omitted.)

" ‘[T]he judgment in [a PAGA representative] action is binding not only on the named employee plaintiff but also on government agencies and any aggrieved employee not a party to the proceeding.’ ( [Id. at p. 985, 95 Cal.Rptr.3d 588, 209 P.3d 923 ].) ... ‘An employee plaintiff suing ... under the [PAGA] does so as the proxy or agent of the state's labor law enforcement agencies.... [¶] ... [A]n action to recover civil penalties "is fundamentally a law enforcement action designed to protect the public and not to benefit private parties" [citation]....’ (Arias, supra, 46 Cal.4th at p. 986 [95 Cal.Rptr.3d 588, 209 P.3d 923].) [¶]... [¶] A PAGA representative action is therefore a type of qui tam action.... The government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit." (Iskanian, supra, 59 Cal.4th at pp. 379–382, 173 Cal.Rptr.3d 289, 327 P.3d 129.)

Iskanian holds that an employee's right to bring a PAGA action is nonwaivable under state law (Iskanian, supra, 59 Cal.4th at pp. 382–383, 173 Cal.Rptr.3d 289, 327 P.3d 129, citing Civ. Code, §§ 1668, 3513 ), and this state-law rule is not preempted by the FAA: "We conclude that the rule against PAGA waivers does not frustrate the FAA's objectives because ... the FAA aims to ensure an efficient

210 Cal.Rptr.3d 355

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." (Iskanian , at p. 384, 173 Cal.Rptr.3d 289, 327 P.3d 129.) "Nothing in the text or legislative history of the FAA nor in the Supreme Court's construction of the statute suggests that the FAA was intended to limit the ability of states to enhance their public enforcement capabilities by enlisting willing employees in qui tam actions. Representative actions under the PAGA, unlike class action suits for damages, do not displace the bilateral arbitration of private disputes between employers and employees over their respective rights and obligations toward each other. Instead, they directly enforce the state's interest in penalizing and deterring employers who violate California's labor laws.... [¶] ... Our FAA holding applies specifically to a state law rule barring predispute waiver of an employee's right to bring an action that can only be brought by the state or its representatives, where any resulting judgment is binding on the state and any monetary penalties largely go to state coffers." (Id. at pp. 387–388, 173 Cal.Rptr.3d 289, 327 P.3d 129 ; see Sakkab v. Luxottica Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 431–440 [agreeing that California's representative action nonwaivability rule is not preempted by the FAA].)

5 Cal.App.5th 672


On August 15, 2014, Tanguilig filed a "representative PAGA action ... on behalf of the state of California, and on behalf of herself and other current or former employees ..., assert[ing] claims for civil penalties and statutory remedies." Tanguilig alleged she was a current Bloomingdale's employee and the company failed to provide its commission-earning employees with paid rest periods, minimum wage for noncommission-producing activities, complete and accurate wage statements, and timely payment of their wages.

Bloomingdale's filed a motion to compel arbitration. The company produced a copy of the dispute resolution procedure (Agreement) that Tanguilig accepted as a condition of her employment. The Agreement required Tanguilig to submit "all employment-related legal disputes, controversies or claims" to a four-step dispute resolution process that culminated in final and binding arbitration. The Agreement prohibited an arbitrator from "consolidat[ing] claims of different [employees] into one (1) proceeding" and from "hear[ing] an arbitration as a class or collective action."2

Iskanian had been decided by the time Bloomingdale's filed its motion. However, Bloomingdale's argued Iskanian was wrongly decided. It also argued this case

210 Cal.Rptr.3d 356

was distinguishable from Iskanian because Tanguilig, unlike Iskanian, had the ability to opt out of the arbitration process. Bloomingdale's asked the trial court to "(1) compel the arbitration of Tanguilig's individual claims; and (2) stay this litigation as required by the [FAA]." In opposition, Tanguilig argued she had asserted no individual claims; a predispute waiver of representative PAGA claims was unenforceable under Iskanian ; Iskanian was not distinguishable on the basis of the Agreement's opt-out provision as Iskanian exempted only certain postdispute waivers; and the representative action waiver rendered the Agreement unconscionable. In reply, Bloomingdale's argued the individual element of Tanguilig's PAGA claim was subject to

5 Cal.App.5th 673

arbitration and, even if the individual element was not arbitrable, the representative action waiver was enforceable. Bloomingdale's asked the court to "compel [Tanguilig's] individual PAGA claim to arbitration," or "[i]f the Court concludes that the PAGA claim cannot be brought on an individual basis, ... [to] dismiss the Complaint."

The court denied the motion to compel, ruling the...

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