Filed 1/29/21 Santana v. Postmates CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

WENDY SANTANA,

Plaintiff and Respondent,

v.

POSTMATES, INC.,

Defendant and Appellant.

B296413

(Los Angeles County

Super. Ct. No. BC720151)

APPEAL from an order of the Superior Court of Los 

Angeles County. Rafael A. Ongkeko, Judge. Affirmed.

Gibson, Dunn & Crutcher, Theane Evangelis, Michele L. 

Maryott, Bradley J. Hamburger and Dhananjay S. 

Manthripragada for Defendant and Appellant.

Parris Law Firm, R. Rex Parris, Kitty K. Szeto, John M. 

Bickford, Michelle J. Lopez and Alexander R. Wheeler for 

Plaintiff and Respondent.

_________________________________
2

Postmates, Inc. (Postmates) appeals from an order denying 

its petition for arbitration in a representative action brought by 

respondent Wendy Santana under the Labor Code Private 

Attorneys General Act of 2004 (PAGA), Labor Code section 2698 

et seq.1 In denying the petition, the trial court followed our 

Supreme Court’s decision in Iskanian v. CLS Transportation Los 

Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which, among 

other things, held that: (1) an employee’s right to bring a 

representative action under the PAGA is unwaivable under 

California law, and (2) this state law rule is not preempted by the 

Federal Arbitration Act (FAA), title 9 United States Code

section 1 et seq.

Postmates argues that our Supreme Court’s holding in 

Iskanian was subsequently abrogated by the United States 

Supreme Court’s decision in Epic Sys. Corp. v. Lewis (2018) __ 

U.S. __ [138 S.Ct. 1612] (Epic Systems). Along with every 

published Court of Appeal decision that has decided this issue, 

we reject the argument. Epic Systems did not consider the same 

issue concerning the nonwaivable nature of PAGA claims that 

Iskanian decided. We must therefore follow our Supreme Court’s 

holding.

1 Subsequent undesignated statutory references are to the 

Labor Code.
3

BACKGROUND

1. The Arbitration Agreement

Santana began working as a courier for Postmates in 

September 2017.2 As a courier, she delivered products from local 

merchants to customers who placed orders through Postmates’s

on-line platform.

As a condition of working for Postmates, Santana executed 

a “Fleet Agreement” governing her employment (Employment 

Agreement). The Employment Agreement included an 

arbitration provision in which Santana and Postmates “mutually 

agree[d] to resolve any disputes between them exclusively 

through final and binding arbitration instead of filing a lawsuit 

in court.”3 The arbitration provision stated that it was “governed 

exclusively by the [FAA] and shall apply to any and all claims 

between the Parties, including but not limited to . . . the 

Contractor’s classification as an independent Contractor.”

The arbitration provision included a class action waiver 

and a representative action waiver. The representative action 

waiver stated that the parties agreed that “by entering into this 

Agreement, they waive their right to have any dispute or claim 

brought, heard or arbitrated as a representative action, or to 

participate in any representative action, and an arbitrator shall 

not have any authority to arbitrate a representative action.”

2 Santana’s complaint uses the term “driver.” Postmates 

refers to its drivers as “couriers.” Both parties use the term 

“courier” in their briefs, and we therefore do so as well.

3 Santana originally signed a version of the Employment

Agreement that was effective March 1, 2017. She later agreed to 

a version effective May 11, 2018. The relevant provisions are the 

same in both versions.
4

The Employment Agreement included a provision 

permitting Santana to opt out of the arbitration provision. She 

did not do so.

2. Santana’s Complaint

Santana filed her original complaint in this action on 

September 4, 2018. The complaint alleged a single cause of 

action “on behalf of aggrieved employees” pursuant to the PAGA.

Santana claimed that Postmates willfully misclassified its 

couriers as independent contractors rather than employees to 

minimize costs. She alleged that Postmates’s couriers are “under 

the control and direction of POSTMATES in connection with the 

performance of their work, perform work that is part of the usual 

course of POSTMATES’ business, and are not customarily 

engaged in an independently established trade, occupation or 

business in the same nature of the work performed for 

POSTMATES.”

Santana alleged that Postmates’s misclassification of its 

couriers as independent contractors deprived her and other 

couriers of various statutory and regulatory rights given to 

employees, including minimum wages, mandated meal breaks, 

rest breaks, premium payment for missed breaks, itemized wage 

statements, timely payment of wages, and workers compensation 

protection. Santana sought penalties, attorney fees and costs 

“individually, and on behalf of all aggrieved employees,” which, 

under the PAGA, would be distributed 75 percent to the Labor 

and Workforce Development Agency (Agency) and 25 percent to 

the aggrieved employees. (See § 2699, subd. (i).)

Santana subsequently filed a first amended complaint 

(FAC) to clarify that she sought only civil penalties under the

PAGA and not any individual relief. Like her original complaint, 
5

Santana’s FAC sought civil penalties under section 2699 along 

with attorney fees and costs, and also clarified that Santana “is 

not seeking any sort of individualized (i.e., victim-specific) relief 

as described in Esparza v. KS Industries, L.P. ([2017]) 13 

Cal.App.5th 1228 [(Esparza)].”4

3. Postmates’s Motion to Compel Arbitration

Postmates filed a petition to compel arbitration on 

October 12, 2018. The petition acknowledged the holding in 

Iskanian that PAGA waivers are unenforceable under state law. 

(See Iskanian, supra, 59 Cal.4th at p. 384.) However, Postmates 

argued that the representative action waiver in the Employment 

Agreement should be enforced because Epic Systems undermined 

the basis for our Supreme Court’s holding in Iskanian.

Postmates also argued that, even if the holding in Iskanian still 

applied, Santana’s individual claims must be arbitrated.

4 Esparza held that an employee who asserts claims for 

individual, “victim-specific” relief along with a PAGA claim for 

civil penalties may be compelled to arbitrate the individual 

claims. (Esparza, supra, 13 Cal.App.5th at p. 1234.) In the trial 

court, Postmates argued that Santana’s decision not to assert any 

claim for individual relief meant that she was not an “aggrieved 

employee” and therefore lacked standing to sue under the PAGA. 

(See § 2699, subds. (a) & (c).) The trial court did not reach the 

issue, and Postmates has not raised it on appeal as an alternative 

ground for reversal. In any event, the argument has now been 

foreclosed by our Supreme Court’s decision in Kim v. Reins 

International California, Inc. (2020) 9 Cal.5th 73, 85 (Kim) [“The 

statutory language reflects that the Legislature did not intend to 

link PAGA standing to the maintenance of individual claims 

when such claims have been alleged”].)
6

In her opposition, Santana argued that Epic Systems did 

not consider whether the FAA preempts the state law rule 

established in Iskanian prohibiting enforcement of PAGA 

waivers. She argued that the trial court was therefore obligated 

to follow the holding in Iskanian. Santana also confirmed that 

she did not seek individual remedies.

The trial court denied Postmates’s petition. The court 

concluded that it was “bound by Iskanian” because the United 

States Supreme Court did not decide the “same question 

differently” in Epic Systems. And the court concluded that there 

were no claims for individual relief to be arbitrated because 

Santana sought only civil penalties in a representative claim 

under the PAGA.

DISCUSSION

1. Appealability

The absence of any request for individual relief in 

Santana’s FAC suggests that this appeal may be moot. Neither 

party has raised this issue,5 but we may examine it on our own 

initiative. (See City of Hollister v. Monterey Ins. Co. (2008) 165 

Cal.App.4th 455, 479 (City of Hollister).)

Postmates requests that this court reverse the trial court’s 

ruling and “order Santana to arbitrate any and all claims against 

Postmates on an individual basis.” But Santana’s FAC confirms 

that Santana asserts no such individual claims. And Postmates 

is not entitled to, and apparently does not seek, arbitration of 

Santana’s representative PAGA claim. The contractual provision 

5 Nor has Santana raised as an alternative ground for 

affirmance that no arbitrable issue would exist even if Postmates 

were to prevail on appeal.
7

on which Postmates relies is a representative action waiver, not 

an arbitration agreement. The representative action waiver in 

the Employment Agreement specifically states that “an arbitrator 

shall not have any authority to arbitrate a representative action.” 

Thus, if this provision is enforceable, the remedy would be 

dismissal, not arbitration.6

However, Postmates’s appeal concerns the enforceability of 

one component of a broad arbitration provision that is designed to 

ensure that any disputes arising from a courier’s work for 

Postmates be decided in arbitration rather than litigation. The 

statutory right to appeal from an order denying arbitration is 

intended to avoid the need for lengthy and expensive litigation 

where parties have agreed to arbitrate their disputes. (See Henry 

v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 99–100.) 

Dismissing this appeal as moot would require the parties to 

proceed through litigation to a final judgment before an appeal is 

considered. Considering the appeal now furthers the policy 

underlying the right to appeal from an order denying a claimed

arbitration right.

Moreover, even when an appeal is technically moot we may 

consider it if “ ‘there may be a recurrence of the same controversy 

between the parties and the parties have fully litigated the 

issues.’ ” (City of Hollister, supra, 165 Cal.App.4th at p. 480, 

6 Even if Santana had agreed to arbitrate her 

representative PAGA claim, that agreement would likely not 

have been enforceable. (See Provost v. YourMechanic, Inc. (2020) 

55 Cal.App.5th 982, 992 (Provost) [citing cases holding that “an 

aggrieved employee’s predispute agreement to arbitrate PAGA 

claims is unenforceable absent a showing the state also consented 

to the agreement”].)
8

quoting Cucamongans United for Reasonable Expansion v. City of 

Rancho Cucamonga (2000) 82 Cal.App.4th 473, 480.) Here, 

although there are no issues to arbitrate no matter who prevails 

on appeal, if we were to dismiss this appeal as moot Postmates 

could raise the same issue of the enforceability of Santana’s

representative action waiver in a motion challenging Santana’s

FAC or in a motion for summary judgment. Assuming that the 

trial court acted consistently in denying such a motion, the issue 

could then be raised in a posttrial appeal.

Delaying consideration of an issue that has already been 

fully briefed on appeal and will likely recur would “waste . . .

judicial resources.” (See City of Hollister, supra, 165 Cal.App.4th 

at p. 480 [deciding appeal that, if dismissed as moot, would “only 

trigger another round of litigation, perhaps followed by yet 

another appeal”].) We therefore proceed to consider the merits of 

the appeal.

2. Epic Systems Did Not Decide the Same Issue as 

Iskanian Concerning the Enforceability of 

Representative Action Waivers

As in the trial court, Postmates argues on appeal that the 

United States Supreme Court’s decision in Epic Systems 

abrogated the holding in Iskanian concerning the enforceability 

of PAGA waivers. We disagree.

In Iskanian, our Supreme Court considered the 

enforceability of both PAGA waivers and class action waivers in 

the context of employment contracts. The court held that in light 

of the United States Supreme Court decision in AT&T Mobility 

LLC v. Concepcion (2011) 563 U.S. 333 (Concepcion) the state 

rule limiting class action waivers in employment contracts that 

our Supreme Court had previously established in Gentry v. 
9

Superior Court (2007) 42 Cal.4th 443 (Gentry) was preempted by 

the FAA. (Iskanian, supra, 59 Cal.4th at p. 364.) The court also 

rejected the argument that class action waivers in employment 

contracts are invalid because class actions are a type of concerted 

activity that is protected under the National Labor Relations Act 

(NLRA) (29 U.S.C. § 151 et seq.). The court held that, in light of 

Concepcion, a rule against class action waivers is invalid because 

it interferes with “fundamental attributes of arbitration” and 

there is no basis to conclude that the NLRA established a 

contrary rule that overrides “the FAA’s mandate.” (Iskanian, 

supra, 59 Cal.4th at pp. 372–373.)

However, with respect to a representative PAGA claim, our 

Supreme Court held that: (1) a waiver of the right to bring such 

a claim is invalid under state law, and (2) this state law rule is 

not preempted by the FAA. (Iskanian, supra, 59 Cal.4th at pp. 

382–389.) The court explained that a representative PAGA claim

is not a private action brought by an individual or a class of 

individuals, but instead is a type of qui tam action brought by a 

plaintiff on behalf of the state. In that role, a PAGA plaintiff may 

collect civil penalties for Labor Code violations, 75 percent of 

which go to the Agency and 25 percent of which are awarded to 

the plaintiff. (§ 2699, subd. (i); Iskanian, at pp. 380–382.) The 

court reasoned that “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 Agency.” (Iskanian, 

at p. 384.)

Postmates acknowledges that this court must follow the 

holding in Iskanian unless the United States Supreme Court has 

“decided the same question differently.” (See Truly Nolen of 

America v. Superior Court (2012) 208 Cal.App.4th 487, 507 (Truly 
10

Nolen).) Postmates argues that the United States Supreme 

Court did just that in Epic Systems.

In Epic Systems, the court did in fact decide one of the 

same questions that our Supreme Court considered in Iskanian. 

Consistent with our Supreme Court’s holding in Iskanian, the 

high court held that the NLRA’s protection of the right of workers 

to engage in collective bargaining and other collective conduct, 

including the right “to engage in other concerted activities for the 

purpose of . . . other mutual aid or protection” does not override 

the FAA’s protection of the right to agree to individual 

arbitration in lieu of class actions. (29 U.S.C. § 157; see Epic 

Systems, supra, 138 S.Ct. at pp. 1625–1627.) But that issue is 

not the one that is relevant here. The high court did not consider

or decide the issue our Supreme Court decided in Iskanian that 

controls the outcome in this case—i.e., whether the FAA 

preempts a state law rule prohibiting waiver of a worker’s right 

to bring a representative action on behalf of the state.

There was no need in Epic Systems for the court to address 

representative actions at all, and the court did not do so. Rather, 

as the court explained, the question at issue in that case was

whether employees and employers should “be allowed to agree 

that any disputes between them will be resolved through one-onone arbitration? Or should employees always be permitted to 

bring their claims in class or collective actions, no matter what 

they agreed with their employers?” (Epic Systems, supra, 138 

S.Ct. at p. 1619, italics added.)

Answering that question did not require the court to decide 

whether a worker may waive the right to bring a representative

action on behalf of a state government. Nor did it require the 

court to address the fundamental ground of our Supreme Court’s 
11

decision in Iskanian. As discussed, the court in Iskanian held 

that a PAGA action is not an individual dispute at all, but is an 

action brought on behalf of the state by an aggrieved employee 

who is designated by statute to be a proper representative to 

bring such an action.

Thus, it is clear that the United States Supreme Court did 

not consider the same issue concerning PAGA waivers as our 

Supreme Court decided in Iskanian, much less reach a contrary 

conclusion. Whether the high court might someday do so is not 

the issue. Nor is it our task to analyze the United States 

Supreme Court’s reasoning and language to predict how the court 

might rule if the issue is ultimately presented to it. As the court 

explained in Truly Nolen, with respect to federal statutory issues 

“intermediate appellate courts in California are absolutely bound 

to follow the decisions of the California Supreme Court, unless 

the United States Supreme Court has decided the same question 

differently.” (Truly Nolen, supra, 208 Cal.App.4th at p. 507.) 

That is true even if the high court decides some other issue in a 

way that casts doubt on our Supreme Court’s holding. (Ibid.

[concluding that the court must follow our Supreme Court’s 

decision in Gentry even though the United States Supreme 

Court’s decision in Concepcion “implicitly disapproved the 

reasoning of the Gentry court”].)

Postmates’s reliance on general language in Epic Systems 

directing that arbitration agreements must be enforced 

“according to their terms” is therefore unpersuasive. In Epic 

Systems, the high court did not address the specific issue 

underlying our Supreme Court’s holding in Iskanian. The court’s 

general language in Epic Systems concerning the primacy of the 

FAA does not contradict our Supreme Court’s holding that the 
12

objectives of the FAA are not at stake in a representative PAGA 

action because such an action is not a private dispute. (See 

Iskanian, supra, 59 Cal.4th at p. 384.)

Our Supreme Court has not directly addressed whether its 

holding in Iskanian survives Epic Systems. However, in several 

cases decided after Epic Systems, the court has emphasized the 

representative nature of a PAGA action. That of course is the key 

factor underlying the court’s decision in Iskanian that the FAA 

does not preempt the state rule prohibiting waiver of PAGA 

claims.

In Kim, the court held that an employee does not lose 

standing to pursue a representative PAGA claim by settling his 

or her individual claims for Labor Code violations. (Kim, supra, 

9 Cal.5th at p. 80.) The court confirmed that a PAGA claim is 

“legally and conceptually different from an employee’s own suit 

for damages and statutory penalties.” (Id. at p. 81.) The court 

cited its conclusion in Iskanian that “a PAGA claim is an 

enforcement action between the [Agency] and the employer, with 

the PAGA plaintiff acting on behalf of the government.” (Id. at 

p. 86.)

In ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175 (ZB) the 

court held that some individual compensatory remedies are not 

available in a representative PAGA action. (Id. at p. 182.) In 

doing so, the court cited its holding in Iskanian that predispute 

waivers of the right to bring such a representative action are 

unenforceable, affirming its conclusion that “the FAA did not 

preempt this rule or otherwise require enforcement of such a 

waiver in an arbitration agreement.” (Id. at p. 185, citing 

Iskanian, supra, 59 Cal.4th at pp. 384–389.)
13

In addition, several Court of Appeal decisions, including a 

prior decision by this court, have either held or assumed that the 

state rule prohibiting PAGA waivers announced in Iskanian 

survives Epic Systems. In Correia v. NB Baker Electric, Inc. 

(2019) 32 Cal.App.5th 602 (Correia), Division One of the Fourth 

Appellate District rejected the argument that Postmates makes 

here. The court cited Iskanian’s holding that “a ban on bringing 

PAGA actions in any forum violates public policy and that this 

rule is not preempted by the FAA because the claim is a 

governmental claim.” (Id. at p. 619.) The court noted that Epic 

Systems concerned a different issue concerning the enforceability 

of an “individualized arbitration agreement” in light of the 

NLRA. The court concluded that Epic Systems therefore did not 

“decide the same question differently.” (Ibid.)

7 In Provost, that 

7 Postmates attempts to distinguish Correia on the ground 

that, unlike the Employment Agreement at issue here, the 

arbitration agreement in that case did not include an opt-out 

provision. The difference is irrelevant to the only argument that 

Postmates makes on appeal. Postmates argues that, under Epic 

Systems, the FAA preempts the state law rule announced in 

Iskanian that PAGA claims are nonwaivable. By preserving the 

option of pursuing a PAGA claim for aggrieved employees, an optout provision might be relevant to the applicability of that state 

law rule. But Postmates does not explain why such a provision

has any bearing on whether the FAA preempts it. In any event, 

the opportunity to opt out of a PAGA waiver provision before the 

inception of any dispute has been repeatedly rejected as a defense 

to unenforceability under the court’s rationale in Iskanian. (See 

Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 

1203; Williams v. Superior Court (2015) 237 Cal.App.4th 642, 

647–648; Securitas Security Services USA, Inc. v. Superior Court 
14

same court subsequently reaffirmed its ruling in Correia that 

“Epic did not overrule Iskanian.” (Provost, supra, 55 Cal.App.5th 

at p. 997.) And another division of the Fourth District has 

followed Correia “in holding that [Epic Systems] does not 

undermine the reasoning of Iskanian.” (Collie v. The Icee Co. 

(2020) 52 Cal.App.5th 477, 480.)

Division Two of the First Appellate District also recently 

adopted the holding in Correia. In Olson v. Lyft, Inc. (2020) 56 

Cal.App.5th 862, the court concluded that Correia had 

“thoughtfully analyzed” and rejected the argument that Iskanian 

is no longer good law in light of Epic Systems. (Id. at p. 864.) 

And in Zakaryan v. The Men’s Wearhouse, Inc. (2019) 33 

Cal.App.5th 659, 671 (Zakaryan), in the course of deciding a 

different issue, this court cited Correia in noting that “Epic 

Systems did not overturn Iskanian, as only Iskanian deals with a 

‘claim for civil penalties brought on behalf of the government.’ ”

8

Consistent with these cases, we conclude that Epic Systems 

did not decide the same issue concerning the enforceability of 

(2015) 234 Cal.App.4th 1109, 1121–1122; see also Provost, supra, 

55 Cal.App.5th at pp. 993–994.)

8 Our Supreme Court disapproved Zakaryan on an 

unrelated ground. Zakaryan held that an employee’s PAGA

claim seeking remedies under section 558 could not be split 

between an arbitrable claim for underpaid wages and a PAGA 

claim for statutory penalties. (See Zakaryan, supra, 33 

Cal.App.5th at p. 671.) In ZB, our Supreme Court disapproved 

that holding to the extent that it is inconsistent with the court’s 

holding in ZB that “unpaid wages under section 558 may not be 

recovered through a PAGA action.” (ZB, supra, 8 Cal.5th at 

p. 196, fn. 8.)
15

PAGA waivers that our Supreme Court decided in Iskanian. We 

therefore follow Iskanian in affirming the trial court’s order 

denying Postmates’s petition for arbitration.

DISPOSITION

The trial court’s order is affirmed. Santana is entitled to 

her costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.