Wing v. Chico Healthcare & Wellness Ctr., LP, B310232

CourtCalifornia Court of Appeals
Writing for the CourtRUBIN, P. J.
Citation78 Cal.App.5th 22,293 Cal.Rptr.3d 266
Parties Jill WING, Plaintiff and Respondent, v. CHICO HEALTHCARE & WELLNESS CENTRE, LP, Defendant and Appellant.
Docket NumberB310232
Decision Date28 April 2022

78 Cal.App.5th 22
293 Cal.Rptr.3d 266

Jill WING, Plaintiff and Respondent,


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

Filed April 28, 2022

Fisher & Phillips, Grace Y. Horoupian, Irvine, Shaun J. Voight, Rebecca S. King, Irvine, and Raymond W. Duer, San Francisco, for Defendant and Appellant.

Mara Law Firm, David Mara and Matthew Crawford for Plaintiff and Respondent.


78 Cal.App.5th 25

In this appeal, Chico Healthcare & Wellness Centre, LP asks us to reconsider the California Supreme Court's decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 173 Cal.Rptr.3d 289, 327 P.3d 129 ( Iskanian ) in light of subsequent United States Supreme Court authority. The trial court relied on Iskanian to deny Chico's motion to compel arbitration of Jill Wing's Private Attorneys General Act (PAGA) claims. PAGA allows an aggrieved employee to sue for civil penalties under the Labor Code as a representative of the state. ( Lab. Code, § 2699 et seq. )1

Chico contends two United States Supreme Court cases — Epic Systems Corp. v. Lewis (2018) ––– U.S. ––––, 138 S.Ct. 1612, 200 L.Ed.2d 889 (

78 Cal.App.5th 26

Epic Systems ) and Kindred Nursing Centers Ltd. Partnership v. Clark (2017) ––– U.S. ––––, 137 S.Ct. 1421, 197 L.Ed.2d 806 ( Kindred Nursing ) — impliedly overruled Iskanian , but Chico itself acknowledges these cases do "not [address] PAGA directly ...." As we set out below, Epic Systems and Kindred Nursing did not decide the same question Iskanian decided. We affirm the order denying the motion to compel arbitration.


On October 17, 2017, Wing was hired to work for Chico as a receptionist at a skilled nursing facility. As a condition of her employment, Wing agreed to be bound by Chico's Alternative Dispute Resolution Policy (ADR Policy), which provided that "final and binding arbitration" would be the exclusive means for resolving "covered disputes" between the employee and employer.

The ADR Policy defined "covered disputes" as including "any dispute arising out of or related to my employment, the terms and conditions of my employment and/or the termination of your employment [sic ], including, but not limited to, the following: [¶] Alleged violations of federal, state and/or local constitutions, statutes or regulations; [¶] ... [¶] Claims alleging failure to compensate for all hours worked, failure to pay overtime, failure to pay minimum wage, failure to reimburse

293 Cal.Rptr.3d 268

expenses, failure to pay wages upon termination, failure to provide accurate, itemized wage statements, failure to provide meal and/or rest breaks, entitlement to waiting time penalties and/or other claims involving employee wages, including, but not limited to, claims brought under the Fair Labor Standards Act and any other statutory scheme related to wages or working hours ...."

The ADR Policy included a waiver of class or representative actions: "I understand and agree this ADR Program prohibits me from joining or participating in a class action or representative action, acting as a private attorney general or representative of others, or otherwise consolidating a covered claim with the claim of others."

On June 11, 2018, Wing provided statutorily required notice to the Labor and Workforce Development Agency of alleged Labor Code violations by her employer.2 ( § 2699.3.) The agency did not respond to her notice within the time provided by statute, allowing Wing to file PAGA representative claims for wage, overtime, meal break, and other Labor Code violations.3 She filed

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her complaint on August 22, 2018. Wing's lawsuit also alleged class claims. Relying on the ADR Policy, Chico requested Wing stipulate to arbitrate her individual claims, strike her class claims, and stay her PAGA claims pending the outcome of arbitration. Wing refused; she instead amended her complaint to drop the class claims, leaving only the PAGA claims that were asserted on behalf of herself and all other similarly aggrieved employees. After an unsuccessful mediation, Chico moved to compel arbitration of Wing's PAGA claims.

The trial court denied the motion. In its statement of decision, the court found it was bound to follow "the Supreme Court precedent of Iskanian and the subsequent overwhelming authority reaffirming its holding." Chico timely appealed.


On appeal, Chico argues the trial court erred when it relied on Iskanian to deny the motion to compel arbitration. Where, as here, the trial court's order denying a motion to compel arbitration "rests solely on a decision of law," we review that decision de novo. ( Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425, 34 Cal.Rptr.3d 547.)

1. Relevant Law

The Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq. ) was enacted to address perceived judicial hostility to arbitration agreements. ( AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742.) "The ‘principal purpose’ of the FAA is to ‘ensur[e] that private arbitration agreements are enforced according to their terms.’ " ( Id. at p. 344, 131 S.Ct. 1740.) "When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced

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by the FAA." ( Id. at p. 341, 131 S.Ct. 1740.) Thus, a contract defense based on state law is preempted if it applies only to arbitration contracts or interferes with the fundamental attributes of arbitration. ( Id . at pp. 341–344, 131 S.Ct. 1740.) State laws relating to arbitration contracts are enforceable to the extent they do not conflict with the FAA. ( Id. at pp. 339, 343, 131 S.Ct. 1740.)

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

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committed against the employee and fellow employees, with most of the proceeds of that litigation going to the state." ( Iskanian, supra , 59 Cal.4th at p. 360, 173 Cal.Rptr.3d 289, 327 P.3d 129.) Before PAGA was enacted, only the state could sue employers for civil penalties under the Labor Code. ( Kim, supra , 9 Cal.5th at p. 80, 259 Cal.Rptr.3d 769, 459 P.3d 1123.) "A PAGA claim is legally and conceptually different from an employee's own suit for damages and statutory penalties. An employee suing under PAGA ‘does so as the proxy or agent of the state's labor law enforcement agencies .’ Every PAGA claim is ‘a dispute between an employer and the state.’ Moreover, the civil penalties a PAGA plaintiff may recover on the state's behalf are distinct from the statutory damages or penalties that may be available to employees suing for individual violations. Relief under PAGA is designed primarily to benefit the general public, not the party bringing the action. ‘A PAGA representative action is therefore a type of qui tam action,’ conforming to all ‘traditional criteria, except that a portion of the penalty goes not only to the citizen bringing the suit but to all employees affected by the Labor Code violation.’ The ‘government entity on whose behalf the plaintiff files suit is always the real party in interest.’ " ( Ibid. , internal citations omitted.)

In Iskanian , our Supreme Court examined an arbitration agreement that, like Chico's ADR Policy, contained a waiver of representative actions, including PAGA claims. ( Iskanian, supra , 59 Cal.4th at p. 377, 173 Cal.Rptr.3d 289, 327 P.3d 129.) Iskanian held "an employee's right to bring a PAGA action is unwaivable" and that such a rule was not preempted by the FAA to the extent the rule barred "predispute waiver[s] of an employee's right to bring an action that can only be brought by the state or its representatives." ( Id . at pp. 383, 388, 173 Cal.Rptr.3d 289, 327 P.3d 129.) The court reasoned, "the rule against PAGA waivers does not frustrate the FAA's objectives because ... the FAA aims to ensure an efficient forum for the resolution of private disputes, whereas a PAGA action is a dispute between an...

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