Filed 9/1/21 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CHRISTINE HERRERA et al.,

Plaintiffs and Respondents,

v.

DOCTORS MEDICAL CENTER OF 

MODESTO, INC.,

Defendant and Appellant.

F080963

(Super. Ct. No. CV-19-006126)

ORDER MODIFYING OPINION 

[NO CHANGE IN JUDGMENT]

THE COURT:

It is hereby ordered that the published opinion filed on August 5, 2021, be 

modified as follows:

1. On page 8, last sentence of the second full paragraph, the word “his” is 

changed to “its.” 

2. On page 10, the first paragraph beginning “To compel arbitration” is 

deleted and the following paragraph is inserted in its place: 

To compel arbitration of the PAGA representative claims pursuant to 

the individual acknowledgements signed by plaintiffs in 2010, defendant 

must establish (1) the acknowledgements’ arbitration provisions are worded 

broadly enough to encompass the PAGA representative claims and (2) the 

arbitration agreements are enforceable as to the PAGA claims despite the 

fact the agreements were not signed or otherwise adopted on behalf of the 

state.
2.

3. On page 10, in the first sentence of the second paragraph, the word 

“requirement” is changed to “issue” and the word “here” is inserted between the words 

“detail” and “because,” so the sentence now reads:

The first issue is not addressed in detail here because we assume 

without deciding that the PAGA representative claims alleged by plaintiffs 

are covered by the agreement to use defendant’s FTP and “submit to final 

and binding arbitration ... any and all claims and disputes that are related in 

any way to my employment.”

4. On page 10, the first sentence of the third paragraph beginning “The 

requirement that” is deleted and replaced with the following two sentences:

The second issue presents a question of California law about whether an 

employee’s predispute agreement to arbitrate PAGA representative claims

is enforceable when the state is not a party to the agreement. This legal 

question has been resolved many times and the analysis used typically 

begins with an interpretation of Iskanian, supra, 59 Cal.4th 348. 

There is no change in judgment.

FRANSON, Acting P. J.

WE CONCUR:

PEÑA, J.

DE SANTOS, J.
Filed 8/5/21 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CHRISTINE HERRERA et al.,

Plaintiffs and Respondents,

v.

DOCTORS MEDICAL CENTER OF 

MODESTO, INC.,

Defendant and Appellant.

F080963

(Super. Ct. No. CV-19-006126)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M. 

Beauchesne and Sonny S. Sandhu, Judges.*

Hill, Farrer & Burrill, Michael S. Turner and E. Sean McLoughlin for Defendant 

and Appellant.

Cohelan Khoury & Singer, Michael D. Singer, Rosemary C. Khoury; United 

Employees Law Group and Walter L. Haines for Plaintiffs and Respondents.

-ooOooDefendant Doctors Medical Center of Modesto, Inc., appeals from an order 

denying its petition to compel arbitration of Labor Code claims pursued by former 

employees. The former employees contend their lawsuit is limited to recovering civil 

penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et 

* The matter was heard and decided in December 2019 by Judge Beauchesne. In 

January 2020, Judge Sandu signed and filed the written order. 
2.

seq.)1 and their arbitration agreements cannot be enforced to compel arbitration of the 

PAGA representative claims. 

We again interpret the California Supreme Court’s decision in Iskanian v. CLS 

Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) to mean “that PAGA 

representative claims for civil penalties are not subject to arbitration” under a predispute 

arbitration agreement. (Esparza v KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1234 

(Esparza).) The PAGA claims alleged in the former employees’ complaint are owned by 

the state and are being pursued by the former employees as the state’s agent or proxy. 

(ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 185 (ZB, N.A.).) The arbitration 

agreements in question are not enforceable as to the PAGA claims because the state was 

not a party to, and did not ratify, any of those agreements. Also, after the former 

employees became representatives of the state, they did not agree to arbitrate the PAGA 

claims. Consequently, under the rule of California law recognized in Esparza and many 

other decisions of the Court of Appeal, the PAGA claims cannot be forced into 

arbitration based on agreements made by the former employees before they became 

authorized representatives of the state. The trial court correctly applied this rule of law.

Defendant’s argument that arbitration is compelled by the Federal Arbitration Act 

(FAA; 9 U.S.C. § 1 et seq.) and federal preemption fails for similar reasons. In Iskanian, 

our Supreme Court addressed the scope of the FAA and concluded that “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.” (Iskanian, supra, 59 Cal.4th at p. 

386.) Based on this precedent, we conclude the FAA does not reach the PAGA claims 

alleged in this case and, therefore, federal law does not preempt the rule of California law 

stating PAGA claims are subject to arbitration only if the state, or the state’s authorized 

representative, consents to arbitration. 

1 Unlabeled statutory references are to the Labor Code. 
3.

We therefore affirm the order denying the petition to compel arbitration.

FACTS

Doctors Medical Center of Modesto, Inc., (defendant) is a California corporation 

that owns and operates Doctors Medical Center in Modesto, an acute care hospital. 

Defendant is a subsidiary of Tenet Healthcare Corporation, which owns and operates 

health care facilities in California, Texas, Louisiana and other states. Defendant is 

engaged in interstate commerce because, among other things, it purchases equipment, 

materials and supplies from out-of-state manufacturers and suppliers. 

Plaintiff Christine Herrera was employed by defendant in 1986 and worked there 

until 2008. In 2010, she returned and worked on defendant’s staff as a registered nurse 

and a member of a union, the California Nurses Association. In 2011, Herrera became a 

shift manager, which is a nonunion position. She remained in that position until her 

resignation in June 2018. 

Plaintiff Geri Rothstein worked for defendant from 1998 to 2006. In 2010, she 

returned and worked on defendant’s staff as a registered nurse. Rothstein also was a 

member of the California Nurses Association. In July 2014, Rothstein was promoted to 

shift manager, a nonunion position. As a result, she stopped paying union dues and was 

no longer a member of any union. Rothstein served as a shift manager until her 

resignation in July 2018. 

Collective Bargaining Agreement

Since 2006, registered nurses employed by defendant have been represented by the 

California Nurses Association, which negotiated a series of collective bargaining 

agreements (CBA) with defendant. As a result, defendant’s registered nurses were not 

“at will” employees, but were protected by CBA provisions that limited defendant’s right 

to discipline or discharge registered nurses. 

In 2010, when plaintiffs returned to work for defendant, a three-year CBA 

covering January 1, 2007, through December 31, 2010, was in place. Article 9 of that 
4.

CBA included a mandatory grievance and arbitration procedure for any dispute involving 

the interpretation, meaning or application of any of the CBA’s provisions. Paragraph E 

of article 9 of the CBA allowed individual registered nurses to voluntarily agree to 

arbitrate “any dispute not otherwise arbitrable under the” CBA using “the Tenet Fair 

Treatment Process (‘FTP’).” It also stated: “No retaliation or adverse action may be 

taken against anyone who exercises the option not to sign the FTP.” The grievance and 

arbitration provisions were also included in article 9 of the CBA covering January 1, 

2015, through December 31, 2018. 

Individual Agreements

In 2010, when plaintiffs returned to work for defendant, they signed a one-page 

“ACKNOWLEDGEMENT” stating they (1) had received information about how to 

access an electronic copy of the defendant’s employee handbook; (2) had received a hard 

copy of the FTP; (3) voluntarily agreed to use the FTP by submitting to final and binding 

arbitration “any and all claims and disputes that are related in any way to my employment 

or the termination of my employment”; (4) agreed the arbitration would be conducted 

under the Federal Arbitration Act and the procedural rules of the American Arbitration 

Association; and (5) acknowledged the agreement to arbitrate “may not be modified or 

rescinded except in writing by both me and the Company.” 

A document named “Open Door Policy and Fair Treatment Process” states “[t]he 

FTP applies to all employees, regardless of length of service or status, and covers all 

disputes relating to or arising out of an employee’s employment with the Company or the 

termination of employment. The only disputes or claims not covered by the FTP are 

those listed in the ‘Exclusions and Restrictions’ section below.” It also advises 

employees that the “mutual agreement to arbitrate claims means that both the employee 

and the Company are bound to use the FTP process as the only means of resolving 

employment-related disputes, and thereby agree to forego any right they each may have 

had to a jury trial on issues covered by the FTP.” The document also describes the five 
5.

steps that comprise the FTP. The description of the fifth step—final and binding 

arbitration—addresses class, representative or group action, stating:

“The employee understands and agrees that to the extent permitted by law, 

his or her claim will not be joined with any claim or dispute of another 

employee in a class, collective, representative or group action. Arbitration 

under the Fair Treatment Process is limited to individual disputes, claims or 

controversies that a court of law would be authorized or have jurisdiction 

over to grant relief.” (Italics added.) 

Whether the PAGA representative claims alleged by plaintiffs are subject to this 

limitation on arbitration was not addressed in the appellate briefing. We did not seek 

supplemental briefing of the issue (Gov. Code, § 68061) because there are other grounds 

for affirming the trial court’s denial of arbitration. 

PAGA Notice

On May 17, 2019, counsel for plaintiffs mailed a written notice to the Labor and 

Workforce Development Agency and defendant pursuant to section 2699.3. The notice 

stated plaintiffs were former employees of defendant aggrieved by defendant’s Labor 

Code violations. The notice alleged defendant “failed to pay all wages, including 

premium wages for overtime hours worked; failed to provide legally compliant meal and 

rest breaks; failed to adequately inform Claimants of their right to off-duty meal and rest 

periods; failed to reimburse Claimants and other aggrieved employees for business 

expenses incurred in the discharge of their duties for [defendant]; failed to provide 

accurate itemized wage statements; and failed to pay all wages due during and upon 

separation of employment.” 

In response to the PAGA notice, defendant did not provide a notice of cure of the 

alleged violations. The Labor and Workforce Development Agency did not provide a 

notice of investigation within 65 days after the PAGA notice was mailed. Pursuant to 

section 2699.3, subdivision (a)(2)(A), when the agency does not provide notice of its 

intent to investigate within the 65-day period, “the aggrieved employee may commence a 
6.

civil action pursuant to Section 2699.” Section 2699, subdivision (a) provides any civil 

penalty under the Labor Code collectable by the Labor and Workforce Development 

Agency “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.”

PROCEEDINGS

In August 2019, plaintiffs filed a “REPRESENTATIVE ACTION COMPLAINT” 

against defendant seeking civil penalties under PAGA for violations of Labor Code 

provisions governing wages, meal periods, rest periods, reimbursement of business 

expenses, and accurate wage statements. In October 2019, venue was transferred from 

Orange County to Stanislaus County. 

In November 2019, defendant filed a petition to compel arbitration and stay the 

lawsuit. The petition was based on the arbitration provisions in the CBA and the onepage “ACKNOWLEDGMENT” signed by each plaintiff. Plaintiffs opposed the petition 

and submitted supporting declarations. Defendant filed a reply and submitted evidentiary 

objections to the declaration of plaintiffs’ counsel. 

In December 2019, Judge Beauchesne heard the petition to compel. At the 

hearing, defense counsel described the court’s tentative ruling as beginning with the 

court’s determination that California law prevented the court from enforcing a predispute 

arbitration agreement when the action asserted PAGA claims. After counsel presented 

their arguments and the matter was submitted, Judge Beauchesne confirmed his tentative 

ruling in its entirety. In January 2020, Judge Sandu signed and filed the written order 

prepared by plaintiff’s counsel. Defendant timely appealed. 

Nine days after defendant filed its notice of appeal, plaintiffs moved for calendar 

preference and an expedited briefing schedule pursuant to Code of Civil Procedure 

section 1291.2 and California Rules of Court, rule 8.240. In April 2020, this court 

granted calendar preference without an expedited briefing schedule. Subsequently, the 
7.

parties stipulated to extensions of time to file the appellant’s opening brief, the 

respondents’ brief, and the appellant’s reply brief. In April 2021, the case was fully 

briefed. 

DISCUSSION

I. FEDERAL LABOR LAW PREEMPTION

Defendant contends section 301 of the Labor Management Relations Act of 1947 

(LMRA; 29 U.S.C. § 185) preempts the PAGA claims premised on a Labor Code 

violation allegedly suffered by CBA-covered employees and involving the interpretation 

or application of any of the CBA’s provisions. Defendant asserts the trial court failed to 

discuss the CBA or section 301 of the LMRA and plainly failed to enforce the 

collectively bargained obligation to grieve and arbitrate certain disputes under article 9 of 

the CBA. During oral argument, defense counsel asserted the California appellate courts 

have not addressed the preemption of PAGA claims by the LMRA and urged this court to 

follow federal cases addressing preemption by the LMRA. (See Estrada v. Kaiser 

Foundation Hospitals (9th Cir. 2017) 678 Fed.Appx. 494, 497 [claims for violations of 

§ 222 and § 226 required court to interpret the CBA and, therefore, were preempted by 

LMRA § 301]; Bradford v. Professional Technical Security Services Inc. (Protech)

(N.D.Cal., May 27, 2020, No. 20-CV-02242-WHO) 2020 U.S. Dist. LEXIS 92535 

[PAGA claim for violating § 204’s timely payment of wages requirement preempted by 

the LMRA because the CBA provided for payment arrangements different from § 204’s 

default requirements; PAGA claim for violations of §§ 226.7 and 512, subd. (a) were not 

preempted and were remanded to state court].)

Plaintiffs assert that from 2014 until they resigned, they worked as shift managers 

and not staff registered nurses covered by the CBA. Based on these factual assertions, 

plaintiffs contend they were not subject to any CBA during the liability period at issue in 

this case and, therefore, the LMRA does not preempt the PAGA claims. They also 
8.

contend defendant’s conclusory argument fails to demonstrate the PAGA claims require 

an interpretation of the CBA. 

Under well-established principles of California’s constitutional doctrine of 

reversible error, an order of the lower court is presumed correct—that is, all intendments 

and presumptions are indulged to support it on matters as to which the record is silent—

and the appellant must affirmatively demonstrate prejudicial error. (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.) Appellants fail to carry the burden of affirmatively 

demonstrating error if they, among other things, do not provide an adequate record on 

appeal or do not comply with certain briefing requirements in California Rules of Court, 

rule 8.204.

First, the appellants’ appendix does not include a copy of the trial court’s tentative 

ruling. That ruling is significant because, at the end of the December 17, 2019, hearing, 

Judge Beauchesne stated: “The Court confirms its tentative ruling initially issued in its 

entirety.” Lacking a copy of the tentative ruling, we cannot determine the accuracy of 

defendant’s contention that the “court failed to discuss the CBA or section 301 of the 

LMRA.” “Failure to provide an adequate record on an issue requires that the issue be 

resolved against [the appellant].” (Hernandez v. California Hospital Medical Center

(2000) 78 Cal.App.4th 498, 502; see Jameson v. Desta (2018) 5 Cal.5th 594, 609.) 

Consequently, to the extent defendant contends the trial court erred in failing to consider 

or explicitly discuss defendant’s theory of preemption by the LMRA, the lack of an 

adequate record compels us to conclude appellant failed to carry his burden of 

affirmatively demonstrating such an error occurred.

Second, assuming the trial court did not explicitly discuss the CBA and 

preemption by the LMRA, the applicable principles of appellate practice would require 

that we presume the court impliedly found the CBA did not apply to the claims pursued 

in this lawsuit and, thus, concluded the LMRA did not preempt the PAGA claims. 

(Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970 [under 
9.

doctrine of implied findings, appellate court presumes trial court made all necessary 

findings supported by substantial evidence].) This implied finding of fact is supported by 

substantial evidence—namely, the declarations submitted by plaintiffs. Those 

declarations stated that Hererra and Rothstein became shift managers in 2011 and July 

2014, respectively, and shift managers are nonunion employees. Therefore, sufficient 

evidence supports the finding that plaintiffs were not covered by the CBA or its grievance 

procedures when the wrongs alleged in this lawsuit occurred. Defendant’s appellate 

briefing made no attempt to address this implied finding and presented no analysis 

affirmatively demonstrating the complaint seeks to recover civil penalties for violations 

of the Labor Code occurring before July 2014.

Third, California Rules of Court, rule 8.204(a)(1)(B), provides that a brief must 

“[s]tate each point under a separate heading or subheading summarizing the point, and 

support each point by argument and, if possible, by citation of authority.” “Failure to 

provide proper headings forfeits issues that may be discussed in the brief but are not 

clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179; 

see State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 835–836 

[appellants forfeited challenge to trial court’s ruling on a particular issue by failing to 

address it in their opening brief]; Richard v. Richard (1954) 123 Cal.App.2d 900, 902–

903.) Here, the headings in the argument section of the appellant’s opening brief did not 

raise preemption by the LMRA. The heading in the appellant’s reply brief stating LMRA 

section 301 preempts PAGA claims does not remedy the opening brief’s omission. “It is 

elementary that points raised for the first time in a reply brief are not considered by the 

court.” (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486.) 

Based on the multiple failures of defendant to affirmatively demonstrate the trial 

court erred in impliedly rejecting defendant’s arguments about preemption under the 

LMRA, we conclude those arguments provide no ground for reversing the order denying 

defendant’s petition to compel arbitration.
10.

II. ARBITRATION OF PAGA CLAIMS

To compel arbitration of the PAGA representative claims pursuant to the 

individual acknowledgements signed by plaintiffs in 2010, two requirements must be 

met. First, defendant must show the acknowledgements’ arbitration provisions 

encompass the PAGA claims because a court cannot compel arbitration of a dispute that 

falls outside the scope of the parties’ contract to arbitrate. Second, defendant must 

establish the arbitration agreements are enforceable as to the PAGA claims despite the 

fact the agreements were not signed or otherwise adopted on behalf of the state. 

The first requirement is not addressed in detail because we assume without 

deciding that the PAGA representative claims alleged by plaintiffs are covered by the 

agreement to use defendant’s FTP and “submit to final and binding arbitration ... any and 

all claims and disputes that are related in any way to my employment.” (See Dream 

Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 553, fn. 1 [arbitration clause 

covering any claim arising out of or relating to the contract or its breach is very broad].) 

Based on this assumption, we need not decide whether the provision stating the FTP “is 

limited to individual disputes, claims or controversies” (italics added) excludes the 

PAGA representative claims from the broad arbitration clause. 

The requirement that an employee’s agreement to arbitrate PAGA representative 

claims be enforceable raises issues about how Iskanian, supra, 59 Cal.4th 348, should be 

interpreted. In that case, our Supreme Court concluded “that an arbitration agreement 

requiring an employee as a condition of employment to give up the right to bring 

representative PAGA actions in any forum is contrary to public policy.” (Iskanian, 

supra, 59 Cal.4th at p. 360, italics added.) We interpreted this and other statements in 

Iskanian to mean “that PAGA representative claims for civil penalties are not subject to 

arbitration.” (Esparza, supra, 13 Cal.App.5th at p. 1234.) In Esparza, the only 

arbitration agreement between the plaintiff employee and the defendant employer was 

contained in an employment application completed by the plaintiff. (Id. at p. 1235.) 
11.

Based on when the arbitration agreement was made and the arguments presented in 

Esparza, our legal conclusion “that PAGA representative claims for civil penalties are 

not subject to arbitration” is necessarily limited to arbitration pursuant to a predispute 

arbitration agreement. (Esparza, supra, 13 Cal.App.5th at p. 1234.) We applied that 

legal conclusion in affirming the order denying the motion to compel arbitration “insofar 

as it denies arbitration of the PAGA representative claims seeking civil penalties that are 

paid, in whole or in part, to the Labor and Workforce Development Agency.” (Id. at p. 

1247.) In short, the arbitration agreement was not enforceable as to the PAGA claims.

Defendant adopts an interpretation of Iskanian different from the interpretation 

adopted in Esparza, contending Iskanian requires arbitration of PAGA claims and only 

prohibits enforcement of PAGA waivers. Defendant also criticizes various Court of 

Appeal decisions that, like Esparza, conclude a predispute arbitration agreement cannot 

be relied upon to compel arbitration of a PAGA representative claim. Those decisions 

did not cite Esparza and, therefore, can be interpreted as independently determining 

PAGA claims are not subject to arbitration under predispute arbitration agreements.

In Contreras v. Superior Court (2021) 61 Cal.App.5th 461, Division Five of the 

Second District stated: “After Iskanian, several appellate courts have held that an 

individual PAGA plaintiff may not be required to arbitrate his or her PAGA claim. ‘[A]n 

employer cannot rely on an employee’s predispute arbitration agreement to compel 

arbitration of a PAGA claim.’ ” (Id. at p. 472.) In Correia v. NB Baker Electric, Inc.

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

for this conclusion: “Without the state’s consent, a predispute agreement between an 

employee and an employer cannot be the basis for compelling arbitration of a

representative PAGA claim because the state is the owner of the claim and the real party 

in interest, and the state was not a party to the arbitration agreement.” (Id. at p. 622.) 

In ZB, N.A., supra, 8 Cal.5th 175, the Supreme Court mentioned Esparza, but it 

was not among the Court of Appeal decisions explicitly disapproved. (ZB, N.A., supra, at 
12.

pp. 188, 196, fn. 8.) Based on the lack of disapproval and the many other Court of 

Appeal decisions reaching the same conclusion as Esparza,

2 we again conclude a former 

employee who is authorized to pursue PAGA representative claims cannot be compelled 

to arbitrate those claims pursuant to a predispute arbitration agreement. 

Here, the Labor and Workforce Development Agency did not consent to 

arbitration. Also, plaintiffs did not consent to arbitration after they became authorized to 

pursue the PAGA claims.3 Therefore, the arbitration agreements signed by plaintiffs in 

2010 cannot be enforced as to the PAGA claims asserted in the complaint.

III. FAA PREEMPTION

Defendant contends FAA preemption requires the reversal of the trial court with 

directions to issue an order compelling arbitration. We disagree.

In Iskanian, our Supreme Court concluded “the FAA does not preempt a state law 

that prohibits waiver of PAGA representative actions in an employment contract.” 

(Iskanian, supra, 59 Cal.4th at p. 360.) The court explained its determination by stating: 

2 Winns v. Postmates Inc. (July 20, 2021, A155717) __ Cal.App.5th __ [2021 

Cal.App. LEXIS 590] [First District, Division 3]; Rosales v. Uber Technologies, Inc.

(2021) 63 Cal.App.5th 937, petn. for review pending, petn. filed June 8, 2021, time for 

grant or denial of review extended to Sept. 3, 2021, S269214 [Second District, Division 

8]; Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 992, review den. Jan. 20, 

2021, S265736 [Fourth District, Division 1] (Provost); Collie v. The Icee Co. (2020) 52 

Cal.App.5th 477, 481, review den. Nov. 10, 2020, S264524 [Fourth District, Division 2]; 

Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 869-872, review den. Feb. 14, 2018, 

S246352 [Second District, Division 4]; Betancourt v. Prudential Overall Supply (2017) 9 

Cal.App.5th 439, 447-448, review den. May 24, 2017, S241247 [Fourth District, Division 

2]; Tanguilig v. Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 678, review den. Mar. 1, 

2017, S239170 [First District, Division 5]. 

3 Based on the theory that the former “employee acts as ‘ “the proxy or agent of the 

state’s labor law enforcement agencies,” ’ (ZB, N.A., supra, 8 Cal.5th at p. 185) an 

agreement to arbitrate the PAGA claims would not be enforceable unless it was made 

after the former employee became a PAGA authorized aggrieved employee (i.e., an agent 

of the state). (Id. at p. 185.) 
13.

“[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, 

which alleges directly or through its agents—either the [Labor and 

Workforce Development] Agency or aggrieved employees—that the 

employer has violated the Labor Code.” (Id. at pp. 386–387.)

We conclude our Supreme Court’s analysis of preemption under the FAA remains 

good law. (See Contreras, supra, 61 Cal.App.5th at p. 471; Provost, supra, 55 

Cal.App.5th at p. 997 [Epic Systems Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612, 

200 L.Ed.2d 889] did not implicitly overrule Iskanian].) Furthermore, we conclude our 

Supreme Court’s analysis applies with equal force to the principle of state law that a 

former employee who is authorized to pursue PAGA representative claims cannot be 

compelled to arbitrate the PAGA claims based on a predispute arbitration agreement. 

Consequently, federal preemption does not compel arbitration in this case because 

plaintiff’s PAGA claims fall outside the FAA’s coverage. 

DISPOSITION

The order denying the petition to compel arbitration judgment is affirmed. 

Plaintiffs shall recover their costs on appeal. 

FRANSON, Acting P.J.

WE CONCUR:

PEÑA, J.

DE SANTOS, J.