Filed 5/14/24 Lemm v. Superior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

STEPHEN LEMM,

Petitioner,

v.

THE SUPERIOR COURT OF

LOS ANGELES COUNTY,

Respondent;

ECOLAB, INC.,

Real Party in Interest.

 B325695

 (Los Angeles County

 Super. Ct. No.

 21STCV08647)

ORIGINAL PROCEEDING; petition for writ of mandate. 

Superior Court of Los Angeles County, Steven J. Kleifield, Judge. 

Petition granted.

The Hathaway Law Firm and Alejandro P. Gutierrez; 

Palay Hefelfinger, Daniel J. Palay and Brian D. Hefelfinger for 

Petitioner.

No appearance for Respondent.

Jones Day, Michael J. Gray, Kelsey A. Israel-Trummel and 

Margaret Adema Maloy for Real Party and Interest.
2

Plaintiff and appellant Stephen Lemm appeals from an 

order compelling arbitration of his individual claims under the 

Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 

et seq.) and dismissing his non-individual PAGA claims.1 On 

appeal, Lemm contends: (1) the order is appealable under the 

“death knell doctrine,” or in the alternative, he asks this court to

treat the appeal as a petition for a writ of mandate; (2) the trial 

court erred by compelling arbitration of Lemm’s individual PAGA 

claims under the parties’ agreement; and (3) the trial court 

should not have dismissed the non-individual PAGA claims, 

because Lemm had standing to pursue them even after his 

individual PAGA claims were ordered into arbitration. In light of 

the uncertainty of our jurisdiction to consider Lemm’s appeal 

from the order compelling arbitration under the death knell 

doctrine, and the absence of any delay or prejudice our 

intervention at this stage would cause, we find this an 

appropriate case in which to exercise our discretion to treat the 

appeal from that order as a petition for writ of mandate. Because 

Lemm has standing to pursue non-individual PAGA claims in 

court, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On June 19, 2019, Lemm filed a complaint against

defendant and respondent Ecolab Inc. in Los Angeles Superior 

Court, case No. 19STCV21322 (Lemm I), alleging a PAGA claim

for improper calculation of overtime payments. The parties filed 

1 All further statutory references are to the Labor Code 

unless otherwise stated.
3

cross-motions for summary adjudication. (Lemm v. Ecolab Inc.

(2023) 87 Cal.App.5th 159, 166.) 

On March 4, 2021, Lemm filed a separate complaint in the 

instant case against Ecolab in Los Angeles Superior Court, case 

No. 21STCV08647 (Lemm II), which Lemm amended on 

August 23, 2021, alleging a PAGA claim for reporting time and 

split shift wage violations. The trial court found the cases were 

related and designated Lemm I as the lead case. Summary 

judgment was eventually entered in favor of Ecolab in Lemm I, 

which this appellate court affirmed in a published opinion. 

(Lemm v. Ecolab, supra, 87 Cal.App.5th at p. 164.)

On June 27, 2022, in Lemm II, Ecolab filed a motion to 

compel arbitration of Lemm’s individual PAGA claims pursuant 

to the parties’ arbitration agreement and to dismiss the

remaining claims in accordance with the holding in Viking River 

Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking River).

Ecolab attached the parties’ arbitration agreement, which 

contained a waiver of class, collective, or representative actions.

2

2 The waiver provision stated in full: “Pursuant to the 

Agreement, Associates waive their rights to commence, be a party 

to or act as a class member in any class or collective action in any 

court or in arbitration related to any Dispute. Associates may 

not submit a multiparty, class, collective or representative action 

for resolution under this Agreement. Additionally, no arbitrator 

has the authority under this Agreement to proceed with 

arbitration on a multiparty, class, collective or representative 

action basis. Arbitration on an individual basis pursuant to this 

Agreement is the exclusive remedy for any claims which might 

otherwise be brought on a multiparty, class, collective or 

representative action basis. Accordingly, an Associate may not 

participate as class or collective action representatives or as 

members of any class, collective or representative action, and will 
4

The agreement stated, “Arbitration on an individual basis 

pursuant to this Agreement is the exclusive remedy for any 

claims which might otherwise be brought on a multiparty, class, 

collective or representative action basis.” Any disputes about the 

validity or arbitrability of the waiver were to be decided by the

court, not by an arbitrator. In the event the waiver was 

unenforceable, “any claim brought on a class, collective or 

representative action basis must be filed in a court of competent 

jurisdiction, and such court shall be the exclusive forum for all 

such claims.” 

The arbitration agreement provided that the terms were 

severable and invalid provisions could be reformed, except that 

arbitration could only proceed in an individual capacity. The 

agreement expressly incorporated the procedural provisions of 

the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.), and 

applied substantive state law, federal law, or both.

Lemm opposed the motion to compel arbitration. Lemm 

argued his waiver of representative PAGA claims was invalid

under California law, as affirmed in Viking River. Unlike the 

severability clause of the waiver at issue in Viking River, which

stated that any portion remaining valid must be enforced in 

arbitration, the severability clause in the instant case required 

not be entitled to any recovery from a class, collective or 

representative action in any forum under this Agreement. Any 

disputes concerning the validity or arbitrability of this class, 

collection and representative action waiver will be decided by a 

court of competent jurisdiction, not by an arbitrator. In the event 

this waiver is found to be unenforceable, any claim brought on a 

class, collective or representative action basis must be filed in a 

court of competent jurisdiction, and such court shall be the 

exclusive forum for all such claims.” 
5

any representative claim to be filed in court. In addition, Lemm 

argued that Ecolab waived its right to compel arbitration by 

engaging in extensive discovery and other litigation conduct

without seeking to compel arbitration.

Ecolab filed a reply. The motion to compel arbitration was 

heard on August 8, 2022. Ecolab claimed it would have been 

futile to move to compel arbitration prior to the United States 

Supreme Court decision in Viking River. After the decision was 

issued, Ecolab acted quickly to compel arbitration.

Lemm argued that the term “representative action” in the 

parties’ arbitration agreement included both individual and nonindividual PAGA claims. Because every PAGA claim is asserted 

in a representative capacity, even an individual PAGA claim is a 

representative action brought on behalf of the state agency. 

Lemm argued that, under the plain language of the parties’ 

agreement, since the waiver of representative actions was 

unenforceable, his representative action must be filed in court, 

including his individual PAGA claim. If the term representative 

action was ambiguous, it should be construed against the drafter.

He also argued specific provisions in the waiver paragraph took

precedence over general provisions in the severability paragraph.

The trial court concluded that under the parties’ 

agreement, arbitration on an individual basis was the exclusive 

remedy for any claims which might otherwise be brought on a 

multiparty, class, collective, or representative basis. The 

language limited an employee’s representative action to 

arbitration of the employee’s individual claim.

The court noted that Ecolab sought to have the nonindividual PAGA claims dismissed under the authority of Viking

River. Lemm’s attorney responded, “Frankly, if the court were 
6

inclined to grant arbitration, I believe that that is the holding. 

But we don’t have any argument that you could essentially retain 

-- I can’t imagine what you could retain in that regard.”

The trial court granted the motion based on the controlling 

authority provided in Viking River. On October 4, 2022, the trial 

court entered its written order granting the motion to compel, 

ordering arbitration of Lemm’s individual PAGA claims, and 

dismissing the remaining non-individual PAGA claims (the 

October 4, 2022 order).

DISCUSSION

Appealability

Ecolab contends that the appeal in this case should be 

dismissed because the October 4, 2022 order is not directly

appealable. In response, Lemm asserts that the order dismissing 

the non-individual PAGA claims is appealable under the “death 

knell” doctrine (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 

760 (Baycol)), or in the alternative, Lemm asks us to treat the 

appeal as a petition for writ of mandate (Cortez v. Doty Bros. 

Equipment Co. (2017) 15 Cal.App.5th 1, 10 (Cortez)). During oral 

argument, Ecolab’s attorney suggested the arbitrator’s findings 

with respect to Lemm’s individual PAGA claims could be 

preclusive as to the non-individual PAGA claims, even though the 

non-individual PAGA claims are not subject to decision by the 

arbitrator. In light of the legal uncertainty about the 

appealability of the order being challenged, as well as the lack of 

any showing of prejudice or delay, we exercise our discretion to 
7

treat the appeal as a petition for writ of mandate and consider 

the merits of the order.

“In exercising our discretion in this manner, we are 

mindful that reviewing an order compelling arbitration by writ

should be done sparingly and only in an appropriate 

circumstance to avoid defeating the purpose of the arbitration 

statute.” (Cortez, supra,15 Cal.App.5th at p. 10.) In this case, 

efficiency is gained, not lost, by treating the appeal as a writ 

petition. (Id. at p. 11.) Based on the case law at the time of the 

order, the trial court and the parties believed Lemm’s nonindividual PAGA claims must be dismissed. As a result, the trial 

court had no reason to consider exercising its discretion under 

Code of Civil Procedure section 1281.2. Code of Civil Procedure 

section 1281.2 requires the court to order the parties to 

arbitration unless, for example, “[a] party to the arbitration 

agreement is also a party to a pending court action or special 

proceeding with a third party, arising out of the same transaction 

or series of related transactions and there is a possibility of 

conflicting rulings on a common issue of law or fact” (Code Civ. 

Proc., § 1281.2). Similarly, “[i]f the court determines that there 

are other issues between the petitioner and the respondent which 

are not subject to arbitration and which are the subject of a 

pending action or special proceeding between the petitioner and 

the respondent and that a determination of such issues may 

make the arbitration unnecessary, the court may delay its order 

to arbitrate until the determination of such other issues or until 

such earlier time as the court specifies.” (Code Civ. Proc., 

§ 1281.2.). Treating the appeal as a writ petition will provide the 

trial court with an opportunity to exercise its discretion to 

proceed in the most efficient and appropriate manner under Code 
8

of Civil Procedure section 1281.2, although nothing in this

opinion should be read to require the trial court to exercise its 

discretion in any particular manner.

Dismissal of Non-Individual PAGA Claim

Lemm contends that he has standing to pursue his nonindividual PAGA claims, and therefore, the trial court erred by 

dismissing those claims. We agree.

PAGA allows aggrieved employees, acting as private 

attorneys general on behalf of themselves individually and other 

employees, to recover civil penalties for Labor Code violations. 

(Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1113

(Adolph).)

Every PAGA action is a “representative action” in the sense 

that the employee plaintiff sues as an agent of the government 

entity, which is the real party in interest. (Iskanian v. CLS 

Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382 

(Iskanian); Viking River, supra, 596 U.S. 639 at p. 648.) PAGA 

claims are also considered representative actions in the sense 

that they may be based on code violations sustained by other 

employees. (Viking River, supra, 596 U.S. at p. 648.) In this use 

of the term representative, “individual” PAGA claims are based 

on code violations suffered by the employee plaintiff, while 

“ ‘representative’ ” PAGA claims concern code violations suffered 

by other employees. (Id. at pp. 648–649.)

“[A]n employee’s right to bring a PAGA action is 

unwaivable.” (Iskanian, supra, 59 Cal.4th at p. 383.) “[T]he

Legislature’s purpose in enacting the PAGA was to augment the 

limited enforcement capability of the [Labor and Workforce 
9

Development] Agency by empowering employees to enforce the 

Labor Code as representatives of the Agency.” (Ibid.) An 

employment agreement that requires the waiver of 

representative claims under the PAGA “is contrary to public 

policy and unenforceable as a matter of state law.” (Id. at p. 384.)

In Viking River, the United States Supreme Court held 

that PAGA actions may be divided into individual and nonindividual claims through an agreement to arbitrate. (Viking 

River, supra, 596 U.S. at p. 662.)

The Viking River court erroneously concluded, however,

that an employee plaintiff does not have standing under 

California law to maintain non-individual PAGA claims in court 

when the employee’s individual PAGA claim had been committed

to another proceeding. (Viking River, supra, 596 U.S. at p. 663.) 

Based on this interpretation of California law, the Viking River

court determined the correct course was to dismiss the employee’s 

remaining non-individual PAGA claims. (Ibid.)

The California Supreme Court subsequently ruled in

Adolph that “[w]here a plaintiff has brought a PAGA action 

comprising individual and non-individual claims, an order 

compelling arbitration of the individual claims does not strip the 

plaintiff of standing as an aggrieved employee to litigate claims 

on behalf of other employees under PAGA.” (Adolph, supra, 14 

Cal.5th at p. 1114.)

Lemm’s individual PAGA claims were ordered to 

arbitration, but as the holding in Adolph makes clear, Lemm 

continues to have standing to pursue his non-individual PAGA 

claims in court, and therefore, the order dismissing those claims 

must be reversed.
10

On appeal, Ecolab characterizes Lemm’s statements during 

trial court proceedings on the motion to compel arbitration as 

forfeiture, invited error, and waiver of the argument that Lemm

has standing to pursue non-individual PAGA claims. We 

disagree that Lemm’s remarks amounted to inviting or 

advocating for dismissal of his non-individual PAGA claims. 

Lemm argued extensively that the instant case was 

distinguishable from Viking River, but acknowledged that the 

holding in Viking River mandated dismissal of non-individual 

PAGA claims. Lemm appealed from the order dismissing his

non-individual PAGA claims on the ground that he had standing

even before having the benefit of the California Supreme Court’s 

decision in Adolph, and we review this purely legal issue de novo.

For the first time on appeal, Ecolab raises an alternative 

ground for affirming the dismissal of the non-individual PAGA 

claims. Ecolab essentially contends that the FAA preempts

California law prohibiting the waiver of PAGA claims because it 

is an obstacle to the parties’ agreement to resolve claims solely 

through individualized arbitration. 

This issue was recently addressed by the appellate court in 

DeMarinis v. Heritage Bank of Commerce (2023) 98 Cal.App.5th 

776 (DeMarinis), where the court concluded that the FAA does 

not preempt California’s law prohibiting waiver of non-individual 

PAGA claims. Iskanian expressly held that a waiver of the right 

to bring a representative action under PAGA is unenforceable 

under state law, and that the FAA does not preempt state law 

prohibiting such waivers, because they concern disputes between 

employers and the state agency, rather than the resolution of 

private disputes. (Iskanian, supra, 59 Cal.4th at pp. 383–384.) 

Viking River held that the rule in Iskanian was preempted by the 
11

FAA only to the extent that it precluded dividing a PAGA action 

into individual and non-individual claims through an agreement 

to arbitrate. (Viking River, supra, 596 U.S. at p. 662.) But 

otherwise, Viking River stated that Iskanian’s rule prohibiting

waivers of the right to bring a PAGA claim remained valid and 

was not preempted by the FAA. (Viking River, supra, 569 U.S. at 

pp. 663–664 [non-individual PAGA claims may not be dismissed 

based on arbitration agreement’s waiver of representative PAGA 

action, because state law that PAGA claims are unwaivable 

remained valid]; DeMarinis, supra, 98 Cal.App.5th at pp. 786–

787) [Viking River left intact Iskanian’s primary holding

prohibiting waiver of right to bring representative PAGA claim,

either individual or non-individual claims].) “Nothing in Viking 

River suggests that employers may require employees to 

completely forgo their rights to bring nonindividual PAGA claims 

as a condition of employment.” (DeMarinis, supra, 98 

Cal.App.5th at p. 787).)

“Moreover, Adolph recognizes that an individual PAGA 

claim in a case may proceed to arbitration, while nonindividual 

PAGA claims in the matter remain in court. (Adolph, supra, 14 

Cal.5th at p. 1123; see, e.g., Piplack [v. In-N-Out Burgers (2023)

88 Cal.App.5th 1281,] 1289.) Thus, parties remain free to utilize 

the informal and expedient procedures of arbitration for an 

individual PAGA claim, without forsaking the advantages of a 

judicial forum (e.g., procedural rigor, multilayered review) for the 

nonindividual PAGA claims. (See Viking River, supra, 569 U.S. 

at pp. 660–662.)” (DeMarinis, supra, 98 Cal.App.5th at p. 787.)

In this case, Ecolab specifically provided in the parties’ 

arbitration agreement that if the waiver of representative actions 

was unenforceable under the law, any representative action must 
12

be filed in court. The FAA does not bestow arbitration 

agreements with special status; it simply ensures arbitration 

agreements are as enforceable as other contracts. (Cronus 

Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384 

(Cronus).) The FAA does not preempt California law prohibiting 

waivers of PAGA claims. Enforcement of the parties’ agreement

to arbitrate individual claims and litigate representative actions 

if the waiver of representative actions is unenforceable is 

consistent with the policies of the FAA.

Because we have concluded that the order must be vacated

based on the erroneous dismissal of Lemm’s non-individual 

PAGA claims, we need not consider whether the order could have 

additionally been reversed on another basis.
13

DISPOSITION

Deeming the appeal to be a petition for writ of mandate, 

the petition is granted. The superior court is directed to vacate 

its October 4, 2022 order and enter a new order addressing the 

motion to compel arbitration that does not dismiss non-individual 

PAGA claims. The order of proceedings is subject to the superior 

court’s discretion under Code of Civil Procedure section 1281.2. 

Petitioner Stephen Lemm is awarded his costs on appeal.

NOT TO BE PUBLISHED.

MOOR, J.

We concur:

BAKER, Acting P. J.

LEE, J.*

* Judge of the Superior Court of San Bernardino County, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.