Filed 3/1/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ROBINA CONTRERAS et al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

ZUM SERVICES, INC.,

Real Party in Interest.

 B307025

 (Los Angeles County

 Super. Ct. No. 19STCV43062)

ORIGINAL PROCEEDINGS in mandate. Dennis J. Landin, 

Judge. Petition granted. 

Lichten & Liss-Riordan, Shannon Liss-Riordan and Anne 

Kramer for Petitioners.

No appearance for Respondent. 

Littler Mendelson, K. Kayvan Iradjpanah and Ashley J. 

Brick for Real Party in Interest.

____________________
2

INTRODUCTION

Petitioners Robina Contreras and Gabriel Ets-Hokin filed 

suit against Zum Services, Inc. (Zum) under the Private 

Attorneys General Act (PAGA). (Lab. Code, § 2699 et seq.)1

Petitioners alleged Zum misclassified them and others as 

independent contractors, thereby violating multiple provisions of 

the California Labor Code. Zum moved to compel arbitration 

based on agreements petitioners had signed at the beginning of 

their employment. The trial court granted the motion, ordering 

into arbitration “the issue of arbitrability” of petitioners’ suit –

whether they are “aggrieved employees” entitled to raise PAGA 

claims. Petitioners now challenge the trial court’s order, arguing 

that the delegation of that question to an arbitrator frustrates 

the purpose of PAGA and is therefore prohibited under California 

law. We agree and reverse the order compelling arbitration.

FACTUAL AND PROCEDURAL BACKGROUND

1. Zum’s Terms of Service Agreement

Zum is a transportation service, designed to allow 

customers to schedule rides for children using the Zum website or 

phone application. Upon logging in the first time, new Zum 

drivers are expected to sign the Zum Terms of Service Agreement

(Agreement). 

The Agreement contains what appears to be a mutual 

dispute resolution provision that requires drivers to resolve 

disputes through final and binding arbitration: “[Y]ou and Zum 

waive your rights to a jury trial and to have any dispute arising 

out of or related to these Terms or our Service resolved in court. 

1 Undesignated statutory references that follow are to the 

Labor Code.
3

Instead, all disputes arising out of or relating to these Terms or 

our Service will be resolved through confidential binding 

arbitration held in San Mateo County, California in accordance 

with the Streamlined Arbitration Rules and Procedures (‘Rules’) 

of the Judicial Arbitration and Mediation Services (‘JAMS’), 

which are available on the JAMS website and hereby 

incorporated by reference.”

2 The Agreement also requires drivers 

to waive their right to bring a class action: “You and Zum agree 

that any dispute arising out of or related to these Terms or our 

Service is personal to you and Zum and that any dispute will be

resolved solely through individual arbitration and will not be 

brought as a class arbitration, class action or any other type of 

representative proceeding.”

The Agreement gives the arbitrator “exclusive authority to 

make all procedural and substantive decisions regarding any 

dispute and to grant any remedy that would otherwise be 

available in court; provided, however, that the arbitrator does not 

have the authority to conduct a class arbitration or a 

representative action, which is prohibited by these Terms.” The 

JAMS Streamlined Arbitration Rules and Procedures, 

incorporated by reference, state in relevant part: “Jurisdictional 

and arbitrability disputes, including disputes over the formation, 

existence, validity, interpretation or scope of the agreement 

under which Arbitration is sought, and who are proper Parties to 

the Arbitration, shall be submitted to and ruled on by the 

Arbitrator.” (Italics added.)

2 Certain claims are exempted from arbitration, but those 

claims are not relevant to this appeal.
4

Contreras began driving for Zum in October 2018; EtsHokin started in June 2019. Both assented to the terms of the 

Agreement. 

2. Petitioners’ Lawsuit Against Zum and the Motion to 

Compel Arbitration

On March 23, 2020, petitioners filed the operative first 

amended complaint against Zum, raising a single cause of action

pursuant to PAGA.3 The complaint alleged that Zum had 

misclassified them as independent contractors and, as a result, 

Zum violated multiple provisions of the California Labor Code 

and other statutes and regulations protecting California 

employees. Specifically, petitioners claimed Zum willfully 

misclassified drivers as independent contractors in violation of 

section 226.84; failed to reimburse drivers for expenses incurred 

while working in violation of section 2802 and Wage Order No. 9;

failed to ensure that drivers receive minimum wage for all hours 

worked in violation of sections 1194 and 1197 ; failed to pay 

drivers the appropriate overtime premium for all overtime hours 

worked in violation of sections 510, 554, 1194, and 1198; and 

required drivers to sign illegal contracts in violation of section

432.5. 

3 The original complaint was filed on November 27, 2019. 

The first amended complaint added Ets-Hokin as a 

representative plaintiff. 

4

Section 226.8 provides in part:

“(a) It is unlawful for any person or employer to engage in 

any of the following activities:

“(1) Willful misclassification of an individual as an 

independent contractor.”
5

On April 21, 2020, Zum filed its motion to compel 

arbitration, citing the Agreement’s provisions waiving class 

actions and agreeing to submit claims to binding arbitration. 

Petitioners opposed the motion, arguing that PAGA claims 

cannot be compelled into individual arbitration. In reply, Zum 

again emphasized the terms of the Agreement and also raised the 

argument that the “threshold issue” of whether petitioners were 

employees and thus eligible to raise PAGA claims should be 

decided in arbitration. 

3. Ruling on the Motion to Compel Arbitration

On July 22, 2020, the trial court granted Zum’s motion. In 

its ruling, the court relied on California public policy that favors 

resolving conflicts through arbitration, and Code of Civil 

Procedure section 1281.2, which directs courts to order the 

parties to arbitrate a controversy if an agreement to arbitrate the 

controversy exists. The court relied on cases that support the 

general rule that arbitrators should decide the issue of

arbitrability if there is an enforceable delegation clause in an 

agreement. (Rent-A-Center, W., Inc. v. Jackson (2010) 561 U.S. 

63, 68-69; Pinela v. Neiman Marcus Group, Inc. (2015) 

238 Cal.App.4th 227, 239.) The court found that the delegation 

clause here was enforceable, with “clear and unmistakable”

terms. 

Although the court acknowledged that Correia v. NB Baker 

Electric, Inc. (2019) 32 Cal.App.5th 602 (Correia) held PAGA

claims are not arbitrable unless the state consents (Correia, at 

pp. 624-625), it found Correia inapplicable. According to the 

court, “the PAGA statute and the case law expressly require the 

claims to be brought by aggrieved ‘employees,’ . . . [and u]nlike 

cases cited [by petitioners where] claims were undisputedly 
6

brought by employees, the present case is on the very issue of 

whether [petitioners] should be classified as independent 

contractors or employees.’ ” The court added that “[t]here is no 

California law yet regarding whether PAGA claims on [the] 

misclassification issue cannot be delegated,” and found that the 

issue was properly delegated to an arbitrator.

4. Writ Proceedings

Petitioners filed a petition for writ of mandate in this court, 

challenging the trial court’s order granting the motion to compel 

arbitration. Zum filed a preliminary opposition. On August 25, 

2020, we issued an order to show cause before this court why the 

relief sought in the petition should not be granted. Zum filed a 

return and petitioners a reply. 

DISCUSSION

1. Overview of the Parties’ Contentions

Petitioners’ writ petition is founded on a fairly 

straightforward argument: Our Supreme Court in Iskanian v. 

CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 

(Iskanian) and several Courts of Appeal are uniform in holding 

that PAGA claims are not waivable and are not arbitrable. 

Under that case law and in light of the very nature of a PAGA 

claim, a court – not an arbitrator – must decide all aspects of the 

claim. The only exception is when the state, as real party in 

interest, has consented to arbitration. The state did not consent

here.

Zum argues PAGA is subject to the Federal Arbitration Act 

(FAA) and Iskanian is no longer good law. But its more tailored 

assertion is: The trial court did not order the PAGA claim to 

arbitration. It only compelled a single antecedent fact or 

“gateway issue” to be arbitrated: whether petitioners are 
7

employees, which they must be to have standing under PAGA, or 

independent contractors, and thus ineligible to bring a PAGA 

claim. Zum contends that, by virtue of the delegation clause of 

the Agreement and its incorporation of JAMS rules, 

“jurisdictional and arbitrability disputes, including disputes over 

the formation, existence, validity, interpretation or scope of the 

agreement . . . and who are proper Parties to the Arbitration, 

shall be submitted to and ruled on by the Arbitrator.” Iskanian

and most other appellate opinions are beside the point.

We discuss first the standard of review. Next, we 

summarize how PAGA operates. Then we consider whether

PAGA claims are subject to the FAA, whether they may be 

waived, and whether they may be arbitrated without the state’s 

consent. We then apply these principles to Zum’s argument that 

the gateway issue of whether petitioners are employees or 

independent contractors is subject to arbitration.

2. Standard of Review

Standards of review of orders on a motion to compel 

arbitration are not uniform. (Avila v. Southern California 

Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 839-840.) 

Generally, if the trial court’s order rests on a factual 

determination, the appellate court adopts a substantial evidence 

standard. If the court’s decision rests solely on an interpretation 

of law, then we employ the de novo standard of review. (Ibid.)

Because the arbitrability of a portion of a PAGA claim 

presents a legal question that lies at the intersection of California 

labor and arbitration law, our review is de novo. (See Provost v. 

YourMechanic, Inc. (2020) 55 Cal.App.5th 982, review den.

Jan. 20, 2020, D076569 (Provost) [“Here, we apply a de novo 

standard of review because the denial of arbitration of the 
8

‘individual’ claim—whether Provost is an independent contractor 

or an ‘aggrieved employee,’ with standing under section 2699, 

subdivisions (a) and (c)—rests on a determination of the law”].)

3. PAGA Claims

a. PAGA overview 

“In September 2003, the Legislature enacted the Labor 

Code Private Attorneys General Act of 2004 [citations]. 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.)” (Arias v. 

Superior Court (2009) 46 Cal.4th 969, 980-981 (Arias).) Under 

PAGA, an “aggrieved employee” may bring a civil action 

personally and on behalf of other current or former employees for 

Labor Code violations. (§ 2699, subd. (a).) An “aggrieved 

employee” is defined as “any person who was employed by the 

alleged violator and against whom one or more of the alleged 

violations was committed.” (§ 2699, subd. (c).) 

Every PAGA claim is “ ‘a dispute between an employer and 

the state.’ ” (Iskanian, supra, 59 Cal.4th at p. 386.) “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.’ (Arias, supra, 46 Cal.4th at 
9

p. 986, italics added).” (Kim v. Reins International California, 

Inc. (2020) 9 Cal.5th 73, 81.) “The ‘government entity on whose 

behalf the plaintiff files suit is always the real party in interest.’ ”

(Ibid.)

Of the civil penalties recovered under a PAGA lawsuit, 75 

percent goes to the Labor and Workforce Development Agency, 

leaving the remaining 25 percent for the “aggrieved employees.”

(§ 2699, subd. (i).) The state’s paramount interest means that

relief under PAGA is designed foremost to benefit the general 

public, not individual parties bringing the action. (Arias, supra, 

46 Cal.4th at p. 986.) 

A PAGA claim does not need to satisfy requirements for 

class actions and “is binding not only on the named employee 

plaintiff, but also on government agencies and any aggrieved 

employee not a party to the proceeding.” (Arias, supra, 

46 Cal.4th at pp. 975, 985.)

b. PAGA claims are not subject to the FAA 

Zum argues in its response that “The Federal Arbitration 

Act Governs This Matter and Creates a Presumption in Favor of 

Arbitration.” It points to part of the FAA that provides “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.” (9 U.S.C. § 2.) 

Our Supreme Court has expressly rejected this argument. 

A “PAGA claim ‘lies’ completely ‘outside the FAA’s coverage 
10

because it is not a dispute between an employer and an employee 

arising out of their contractual relationship.’ [Citation.] 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.” (Iskanian, supra, 59 Cal.4th at 

pp. 395-396.) “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.” (Id.

at p. 387.) 

Undeterred, Zum tells us we should ignore our Supreme 

Court’s decision in Iskanian: “The United States Supreme 

Court’s recent arbitration jurisprudence confirms that the 

California Supreme Court’s ruling in Iskanian cannot stand.”

Zum misunderstands our authority. “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.”

(Olson v. Lyft, Inc. (2020) 56 Cal.App.5th 862, 870, original

italics; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455.)

“The United States Supreme Court’s recent arbitration 

jurisprudence” to which Zum refers is found in AT&T Mobility, 

LLC v. Concepcion (2011) 563 U.S. 333 (Concepcion) and Epic 

Sys. Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612] (Epic 

Systems). Both cases are cited repeatedly in Zum’s return to the 

writ petition.
11

We are not persuaded that either opinion undermines 

Iskanian’s validity. The Iskanian opinion was filed some three 

years after Concepcion. Not only was our Supreme Court aware 

of Concepcion, it considered and relied on Concepcion for the first 

part of its holding. There, the court addressed the waivability of 

two different types of claims: (1) consumer class actions and 

(2) PAGA claims. As to the former, the court concluded that the 

FAA preempted the non-waivability of consumer class actions. 

The court concluded that “our holding to the contrary in Gentry v. 

Superior Court (2007) 42 Cal.4th 443 (Gentry) has been abrogated 

by recent United States Supreme Court precedent.” (Iskanian,

supra, 59 Cal.4th at pp. 359–360.) In the second part of its 

opinion, the court held that neither Concepcion nor the FAA 

applied to PAGA claims. Immediately after citing Concepcion’s

general rule of FAA preemption, the court stated: “We conclude 

that the rule against PAGA waivers does not frustrate the FAA’s 

objectives because, as explained below, 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.) We are not at liberty to disregard 

a California Supreme Court opinion that expressly rejects the 

applicability of a United States Supreme Court opinion. (See 

Olson v. Lyft, Inc., supra, 56 Cal.App.5th at p. 870.)

Zum asks us also to ignore Iskanian in favor of a second 

high court case, Epic Systems, supra, 138 S.Ct. 1612, a case 

decided after Iskanian. The United States Supreme Court

addressed whether the FAA governed arbitration agreements 

between employers and employees when the employee brought 

claims under the Federal Labor Standards Act and a state class 

action. Relying significantly on Concepcion, the court held the 
12

agreements to arbitrate the claims were enforceable. Neither 

Concepcion nor Epic Systems mentions PAGA or comparable laws

in other states. Two of our sibling courts have already held that 

the issues decided in Concepcion and Epic Systems were not the 

“same” as those in Iskanian. (Olson v. Lyft, Inc., supra,

56 Cal.App.5th 862; Correia, supra, 32 Cal.App.5th 602 .) Both 

Courts of Appeal concluded that, even after Epic Systems, PAGA

claims, which seek to vindicate state interests, not private party 

agreements, are not covered by the FAA. As Justice Haller wrote 

in Correia, “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.” (Correia, at 

p. 609; see also Tanguilig v. Bloomingdale’s, Inc. (2016) 

5 Cal.App.5th 665, 673 [“We first reject Bloomingdale’s 

suggestion that we depart from Iskanian either as wrongly 

decided or as superseded by intervening United States Supreme 

Court precedent”].)

5

 We join those Courts of Appeal.

5 We also observe that recently our Supreme Court cited 

Iskanian approvingly in an opinion that postdates Epic Systems

by more than a year. (ZB, N.A. v. Superior Court (2019) 

8 Cal.5th 175.) “In Iskanian, we declared unenforceable as a 

matter of state law an employee’s predispute agreement waiving 

the right to bring these representative PAGA claims. Requiring 

employees to forgo PAGA claims in this way contravenes public 

policy by ‘serv[ing] to disable,’ through private agreement, one of 

the state’s ‘primary mechanisms’ for enforcing the Labor Code. 

[Citation.] We then concluded the FAA did not preempt this rule 

or otherwise require enforcement of such a waiver in an 

arbitration agreement.” (Id. at p. 185.) 
13

c. PAGA claims cannot be arbitrated without state 

consent

Iskanian held that the PAGA claim itself may not be 

waived by an employment agreement. It did not directly address 

whether an employer may contractually require a PAGA claim to 

be arbitrated. (Iskanian, supra, 59 Cal.4th at p. 384; see also 

Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 867.)

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. [Citation.]” (Collie v. The Icee Co. (2020)

52 Cal.App.5th 477, 481, review den. Nov. 10, 2020, S264524; see 

also Correia, supra, 32 Cal.App.5th at pp. 621-622; Provost., 

supra, 55 Cal.App.5th at pp. 997-998; Betancourt v. Prudential 

Overall Supply (2017) 9 Cal.App.5th 439, 447-448; Julian v. 

Glenair, Inc., supra, 17 Cal.App.5th at p. 872; Tanguilig v. 

Bloomingdale’s, Inc., supra, 5 Cal.App.5th at p. 678.)

The rationale for this rule is stated plainly in Correia:

“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. 

Under state and federal law, an arbitration agreement applies 

only to the parties who agreed to its terms and a party cannot be 

compelled to arbitrate a dispute that it has not elected to submit 

to arbitration.” (Correia, supra, 32 Cal.App.5th at p. 622, italics 

added.)
14

Nothing in the record suggests that the state has consented 

to the arbitration of petitioners’ PAGA claim.

4. The “Preliminary” Question of Whether Petitioners 

Are “Aggrieved Employees” Under PAGA May Not Be 

Decided in Private Party Arbitration

Zum argues that, even if PAGA claims are not subject to 

the FAA, even if Iskanian is still good law, and even if an 

employee by predispute agreement may not be forced to arbitrate 

a PAGA claim, the trial court’s order was nevertheless correct.

Zum’s position is that the order did not compel arbitration 

of a PAGA claim. What the trial court did was to carve out part 

of the PAGA claim – whether or not petitioners are really 

aggrieved employees – and then order that “antecedent” fact to be 

arbitrated. The argument continues, if petitioners are not 

employees but independent contractors, this is really not a PAGA 

claim at all, the law regarding PAGA claims does not apply, and 

the parties agreed to arbitrate. 

Zum begins its legal discussion with the familiar rule that 

parties to an agreement can agree that the arbitrator may decide 

the question of arbitrability. (Rent-A-Center, W., Inc. v. Jackson, 

supra, 561 U.S. at pp. 68-69.) Zum asserts, “Here, the parties 

unmistakably agreed that only the arbitrator would decide 

gateway questions of arbitrability.” The high court has cautioned 

that merely naming part of a dispute as a “gateway question” 

does not resolve necessarily “arbitrability.” “Linguistically 

speaking, one might call any potentially dispositive gateway 

question a ‘question of arbitrability,’ for its answer will determine 

whether the underlying controversy will proceed to arbitration on 

the merits.” (Howsam v. Dean Witter Reynolds, Inc. (2002) 

537 U.S. 79, 83.)
15

With the high court’s observation in mind, we turn to Zum’s 

argument. That argument begins with what Zum characterizes 

as the Agreement’s delegation clause. Although there is no 

provision in the Term of Service captioned “Delegation Clause,”

the trial court agreed with Zum that the Agreement delegated to 

the arbitrator the issue of whether petitioners were “aggrieved 

employees.” The court relied on two provisions: “Here, [real 

party] asserts that the parties have ‘clearly and unmistakably’

agreed to delegate questions of arbitrability to an arbitrator 

because the dispute resolution provision provides that ‘all 

disputes arising out of [or] relating to these Terms or our Service 

will be resolved through confidential binding arbitration.’ Mtn., 

Garg Decl., Ex. B. Further, [Zum] asserts that the agreement 

expressly requires that arbitration be governed by the JAMS 

Streamlined Arbitration Rules and Procedures, which provide at 

Rule 8(b) that ‘Jurisdictional and arbitrability disputes, including

disputes over the formation, existence, validity, interpretation or 

scope of the agreement under which Arbitration is sought, and 

who are proper Parties to the Arbitration, shall be submitted to 

and ruled on by the Arbitrator.’ Mtn., Brick Decl., ¶¶ 3-4, Ex. D; 

Garg Decl., Ex. B.”

Zum portrays the arbitrability question as “a private issue 

subject to a private agreement, not a public issue in which the 

State has an interest,” as there will be no determinations on the 

merits of the claim. The state will not have an interest in the 

suit unless and until the arbitrator determines petitioners are 

employees and, if it does, the PAGA claim may be litigated in 

court. This is fallacious wordsmithing. If an arbitrator rules that 

petitioners are not “aggrieved employees,” there will be no 

remaining PAGA claim anywhere. By virtue of an arbitration to 
16

which it did not consent, the state will have lost one of its 

weapons in the enforcement of California’s labor laws. This

result would be at odds with the several appellate opinions we 

previously have cited, e.g., Correia: “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.” (Correia, supra, 32 Cal.App.5th at 

p. 622.)

Characterizing the process as resolving only an 

“arbitrability,” “delegatable” or “gateway” issue, or the

adjudication of an “antecedent” fact, does not extinguish the risk 

to the state that it is an arbitrator, not a court, who nullifies the 

state’s PAGA claim. 

This “splitting of the PAGA claim” argument is not new. 

Courts of Appeal have rejected Zum’s position, although on a 

slightly different ground than lack of state consent. The most 

recent is Provost, supra, 55 Cal.App.5th 982. There, the Fourth 

District framed the issue as if it had the present case in mind: 

“YourMechanic sought to compel plaintiff Jonathan Provost to 

arbitrate whether he was an ‘aggrieved employee’ within the 

meaning of the Labor Code before he could proceed under the 

Labor Code Private Attorneys General Act of 2004 (PAGA) 

(§ 2698 et seq.) with his single-count representative action 
17

alleging various Labor Code violations against the company.”

(Provost, supra, 55 Cal.App.5th at p. 987, fn. omitted.)6

The court first reviewed the principles of waiver and 

arbitrability of PAGA claims as set out in Iskanian. The Provost 

court reminded that a PAGA claim is “a representative or qui 

tam-type action and that the state is the real party in interest in 

the suit.” (Provost, supra, 55 Cal.App.5th at p. 987.) 

The court held that the employer’s motion to compel 

arbitration of the “aggrieved employee” issue was an effort to 

split a single representative PAGA action into (a) individual 

arbitratable and (b) representative nonarbitrable components. 

This, the Court of Appeal concluded, the employer cannot do.

Other Courts of Appeal before Provost have addressed 

PAGA “splitting.” The earliest of these is Williams v. Superior 

Court (2015) 237 Cal.App.4th 642 (Williams). The trial court in 

Williams was apparently presented with the converse of what we 

have here. Zum seeks to arbitrate the “antecedent” fact of 

whether petitioners are aggrieved employees. The defendant 

employer in Williams sought to arbitrate the sequent fact of 

whether there was a wage and hour violation. The Williams 

defendant argued that plaintiff must first arbitrate his 

“individual claim” because “he is required to prove the underlying 

rest period violation in order to prevail, and the [arbitration 

agreement] mandates that rest period claims be arbitrated.”

(Williams, at p. 645.) The trial court denied defendant’s motion

6 The complaint in the present case is also a “single-count 

representative action alleging various Labor Code violations.” 

(Provost, supra, 55 Cal.App.5th at p. 987.) 
18

to enforce waiver of the plaintiff’s PAGA claim, but ordered the 

“individual claim” to arbitration. (Williams, at p. 645.)

Division Four of this court issued a peremptory writ 

directing the trial court to deny the employer’s motion in its 

entirety. The court pointed out there was no “individual claim” in 

petitioner’s complaint. “The trial court cited no legal authority 

for its determination that a single representative action may be 

split in such a manner; [the employer] has identified no case so 

holding, and we have located none. Indeed, case law suggests 

that a single representative PAGA claim cannot be split into an 

arbitrable individual claim and a nonarbitrable representative 

claim.” (Williams, supra, 237 Cal.App.4th at p. 649.)7

Williams was followed by Perez v. U-Haul Co. of California 

(2016) 3 Cal.App.5th 408 (Perez). There, Division Seven of this 

court described the employer’s motion to compel arbitration this 

way: “[Employer] contends, however, that plaintiffs may 

nonetheless be compelled to individually arbitrate the ‘predicate 

issue of whether’ they are ‘aggrieved employee[s] within the 

7 The defendant in Williams had argued in the trial court the 

arbitrator should decide the underlying Labor Code violation. 

The Court of Appeal described the actual ruling as Williams 

“must submit the ‘underlying controversy’ to arbitration for a 

determination whether he is an ‘aggrieved employee’ under the 

Labor Code with standing to bring a representative PAGA claim.” 

(Williams, supra, 237 Cal.App.4th at p. 649.) Regardless of 

which part of the PAGA claim was to be arbitrated and which 

was to be adjudicated in court, Williams’s holding was clear: 

“[P]etitioner cannot be compelled to submit any portion of his 

representative PAGA claim to arbitration, including whether he 

was an ‘aggrieved employee.’ ” (Williams, at p. 649.)
19

meaning of PAGA, and thus have standing to bring . . . 

representative claim[s].’ According to [employer], if the 

arbitrator determines it did ‘commit[ ] Labor Code violations 

against [plaintiffs]’ (thereby establishing standing), plaintiffs 

may then pursue their ‘representative PAGA claim [in court], 

e.g., . . . the number, scope and identities of other “aggrieved 

employees” that [plaintiffs] will represent, and the amount of 

representative penalties.’ Stated more simply, [employer] argues 

that although ‘neither [party] agreed to arbitrate representative 

issues, and neither may be compelled to participate in a 

representative arbitration,’ plaintiffs may be compelled to 

individually arbitrate whether they have standing to bring such a 

representative claim.” (Id. at p. 409.)

The Perez court rebuffed the argument. “We agree with 

Williams’s conclusion that California law prohibits the 

enforcement of an employment agreement provision that requires 

an employee to individually arbitrate whether he or she qualifies 

as an ‘aggrieved employee’ under the PAGA, and then (if 

successful) to litigate the remainder of the ‘representative action 

in the superior court.’ In Iskanian, the Supreme Court explained 

that ‘every PAGA action, whether seeking penalties for Labor 

Code violations as to only one aggrieved employee—the plaintiff 

bringing the action—or as to other employees as well, is a 

representative action on behalf of the state.’ (Iskanian, supra, 

59 Cal.4th at p. 387.) The court also held that requiring an 

employee to bring a PAGA claim in his or her ‘individual’

capacity, rather than in a ‘representative’ capacity, would 

undermine the purposes of the statute. ([Id.] at pp. 383–384.) 

Given these conclusions, we do not believe an employer may force 

an employee to split a PAGA claim into ‘individual’ and 
20

‘representative’ components, with each being litigated in a 

different forum.” (Perez, supra, 3 Cal.App.5th at p. 421.)

Other courts have agreed with Williams and Perez. (See 

Brooks v. AmeriHome Mortgage Co., LLC (2020) 47 Cal.App.5th 

624, 629 [because the plaintiff brought a PAGA representative 

claim, “he cannot be compelled to separately arbitrate whether he 

was an aggrieved employee”]; Hernandez v. Ross Stores, Inc.

(2016) 7 Cal.App.5th 171, 178 [“determination of whether the 

party bringing the PAGA action is an aggrieved party . . . should 

not be decided separately by arbitration”]; see also Jarboe v. 

Hanlees Auto Group (2020) 53 Cal.App.5th 539, 557 [“Because a 

PAGA claim is representative and does not belong to an employee 

individually, an employer should not be able [to] dictate how and 

where the representative action proceeds.”].)

Williams, Perez, Provost, and the other cited cases all have 

reached the same conclusion. We agree with the chorus that in 

California, a PAGA plaintiff may not be compelled to arbitrate 

whether he or she is an aggrieved employee.8

8

Zum argues that a “number of courts have examined 

whether a misclassification controversy must be resolved 

pursuant to the parties’ arbitration agreement before the 

substantive portions of their claim could proceed. These courts 

have required the claimants first to arbitrate the 

misclassification gateway issue in accordance with the parties’ 

contractual agreement.” Zum cites a number of federal cases for 

this proposition. (See Johnston v. Uber Technologies, Inc. (N.D. 

Cal. 2019) 2019 WL 4417682, at *5; Lamour v. Uber Technologies, 

Inc. (S.D.Fla. 2017) 2017 WL 878712, at *12-13; Ali v. Vehi-Ship, 

LLC (N.D.Ill. 2017) 2017 WL 5890876, at *5; Sakyi v. Estee 

Lauder Cos. (D.D.C. 2018) 308 F.Supp.3d 366; Olivares v. Uber 

Technologies, Inc. (N.D.Ill. 2017) 2017 WL 3008278, at *3.)
21

DISPOSITION

Let a peremptory writ of mandate issue directing the 

respondent court to vacate its July 22, 2020 order granting the 

motion to compel arbitration, and to issue a new order denying 

the motion. Petitioners shall recover their costs in this 

proceeding. 

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

None of these cases involve PAGA claims; of interest the 

arbitration provisions in two of the cases expressly excluded 

PAGA claims from arbitration. (See Johnston v. Uber 

Technologies, Inc., supra, 2019 WL 4417682, at *5; Olivares v. 

Uber Technologies, Inc., supra, 2017 WL 3008278, at *3.) We find 

these cases irrelevant to this appeal.