1 Filed 7/20/20 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO

TA RAUN COLLIE, Plaintiff and Respondent,

v. THE ICEE COMPANY et al. , Defendants and Appellants. E071654 (Super.Ct.No. CIVDS1611741)
OPINION

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Jeffrey S. Ranen, Erica Rocush and Aashish Bhargava for Defendants and Appellants. Protection Law Group, Heather Da vi s, Amir Nayebdadash and Priscilla Gamino for Plaintiff and Respondent. The Icee Company and J & J Snack Foods Corp. (collectively , Icee) appeal the trial court’s order denying their motion to co mpel arbitration of a dispute with a former employee

. The employee, Ta raun Collie , alleged a single cause of action agai nst Icee2 under the Private Attorneys General Act of 2004 (PAGA). ( Lab

. Code, § 2698 et seq.) 1
We hold that under Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348 ( Iskanian ) and Betancourt v. Prudential Overall Supply (2017) 9 Cal.App.5th 439 ( Betancourt ), an employee cannot be compelled to arbitrate a PAGA cause of action on the basis of a predispute arbitration agreement. ( Iskanian , supra , at pp. 386

- 387;
Betancourt , supra , at pp. 445

- 446.) We also join Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602 ( Correia ) in holding that Epic Systems Corp. v. Lewis (2018) __ U.S. __ [138 S.Ct. 1612] ( Epic ) d oes not undermine the reasoning of Iskanian and
Betancourt

. ( Correia , at pp. 619

- 622.) We therefore affirm.
BACKGROUND
Collie allege d that he worked for Icee from November 2014 to August 2015.
W hen he began his employment, he signed an arbitration agreement , which stated in pertinent part: “The Company and I mutually consent to the resolution by arbitration o f
all claims or controversies ( ‘ claims ’ ), past, present or future , whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company or against its officers, directors, employees or agents in their capacity as such or otherwise.

. . . The claims covered by this Agreement include, but are
not limit ed to, claims for wages or other compensation due

. . . and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except claims excluded elsewhere in this Agreement

. [¶] Except as otherwise provided in this

1 Further undesignated statutory references are to the Labor Code.3 Agreement, both the Company and I agree that neither of us shall initiate or prosecute any lawsuit or administrative action

. . . in any way related to any claim covered by this Agreement. ” The agreement provided that the Federal Arbitration Act (FAA ; 9 U.S.C. § 1, et seq. ) would govern interpretation and enforcement of the agreement and all proceedings under it

. In July 2016, Collie filed his PAGA complaint on behalf of himself and other aggrieved employees

. I cee moved to compel arbitration of Colli e’s “individual claim” in August 2018

. It argued that the parties had agreed to bilateral arbitration only, so Collie
had to arbitrate his PAGA cause of action on an individual basis

— that is, he could not
seek PAGA penalties on behalf of other Icee employees. And because Collie had agreed to arbitrate all claims or controversies with Icee, neither could he maintain a PAGA action on behalf of other employee s in cour t

. In other words, he had effectively waived his right to br ing a PAGA action on behalf of other employees in any forum.
The trial court denied Icee’s motion, conclud ing that our Supreme Court’s
decision in Iskanian , supra , 59 Cal.4th 348 required that result

. STANDARD OF REVIEW
Because the trial court relied on a determination of law to deny Icee’s motion , we apply the de novo standard of review . (Betancourt , supra , 9 Cal.App.5th at p. 444 .) We are not bound by the trial court ’ s reasoning and “ may affirm the denial on any correct legal theory support ed by the record

. ” ( Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 853, 864 .)4 DISCUSSION The court did not err by denying Icee’s motion to compel arbitration

. Under PAGA, “ ‘ an “ aggrieved employee ” may bring a civil action personally and on behalf of
oth er current or former employees to recover civil penalties for Labor Code violations. ’” ( Iskanian , supra , 59 Cal.4th at p. 380 .) Before bringing the PAGA action, the employee must give notice of the alleged Labor Code violations to the employer and the Labor and Workforce Development Agency (LWDA) . ( § 2699.3, subd. (a)(1)(A); Iskanian , at
p. 380

. ) The employee may bring the PAGA action only after the LWDA refuses to investigate or the agency’s investigation results in no citation. ( § 2699.3, subd. (a)( 2 ) (A)

- (B) ; Iskanian , at p. 380 .) Most of the rec overed civil penalties (75 percent) go to the
LWDA , with the remainder going to the aggrieved employees. ( § 2699, subd. (i);
Iskanian , at p. 380

. ) “ All PAGA claims are ‘ representative ’ actions in the sense that they are brought on the state’s behalf. The employee acts as “ ‘ the proxy or agent of the state’s labor law enforcement agencies ’ ” and “ ‘ represents the same legal right and interest as ’ ” those agencies .” ( ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 185 ( ZB ) .) Thus, a PAGA action to “ ‘ recover civil penalties “ is fundamentally a law enforcement action designed to protect the public and not to benefit private parties

. ”’” ( Iskanian , at p. 381 .)
W e held in Betanco urt that a n employer cannot rely on a n employee’s predispute arbitration agreement to compel arbitration of a PAGA c laim. (Betancourt , supra , 9 Cal.App.5th at p p
. 445

- 44 9 .) We explained that, g enerally, a non party to an arbitration agreement cannot be compelled to arbitrate. ( Id

. at p. 445 .) And given that a PAGA claim “‘is a dispute between an employer and the state , ’ ” the employee ’s “ predispute5 agreement to arbitrate does not bind the state to arbitration. ” ( Id. at p. 447 ; accord id. at p. 449 [reasoning that the “‘state is the real party in interest’” and is not bound by the employee’s predispute arbitration agreement].) Several other court s considering th e issue
have reached the same conclusion. ( Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 622 ( 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”]; Julian v. Glenair,
Inc. , supra , 17 Cal.App.5th at p. 872 [“ [A] n arbitration agreement executed before an employee meets the statutory requirements for commencing a PAGA action does not encompass that action ” because the employee enter ed into such an “ agreement as an individual, rather than as an agent or representative of the sta te ”] ; Tanguilig v. Bloomingdale ’ s, Inc. (2016) 5 Cal.App.5th 665, 678 [“ Because a PAGA plaintiff, whether suing solely on behalf of himself or herself or also on behalf of other employees, acts as a proxy for the state only with the state ’ s acquiescence (s ee § 2699.3) and seeks civil penalties largely payable to the state via a judgment that will be binding on the state,

a PAGA claim cannot be ordered to arbitration without the state ’ s consent ”].) We see no reason to depart from Betancourt here. Collie signed the arbitration agreement when he began his employment with Icee and before his PAGA claim arose. He executed the agreement in his individual capacity

. The state had not deputized him to

act at the time , and he therefore could not agree to arbitrat e on behalf of the state. It does

not matter that Icee wants to compel arbitration of Collie’s cause of action on “an6 individual basis , ” as opposed to as a representative of other aggrieved employees

. Either way, Collie is suing “as a proxy for t he state [and] only with the state’s acquiescence.” ( Tanguilig v. Bloomingdale ’ s, Inc. , supra , 5 Cal.App.5th at p. 678.) His predispute arbitration agreement does not encompass th is PAGA action. Icee argues that Betancourt and Iskanian are no longer good law after the United States Supreme Court’s decision in Epic

. The argument is unpersuasive

. Epic
considered the relationship between the FAA and the National Labor Relations Act (NLRA ; 29 U.S.C. § 151 et seq. ). ( Epic , at p. 1619 .) The employee s argued that the NLRA’s provision guaranteeing workers the right to engage in concerted activity
conflicted with the class action waiver in the ir arbitration agreement s , thereby rendering
the class action waiver illegal

. ( Id. at p. 162 4 .) Th e Epic court rejected the employees’ argument, “reconfirmed .

. . t hat the FAA requires enforcement of class action waivers, ”
and “d etermined the NLRA does not take precedence over the FAA on this issue. ” ( Correia , supra , 32 Cal.App.5th at p. 618 , citing Epic , at pp. 1623

- 1630 .)
Betancourt relied on Iskanian ’s discussion of the unique nature of a PAGA claim.
But Epic does not address “ the unique nature of a PAGA claim ”

— that is, the “ ‘ PAGA litigant ’ s status as “ the proxy or agent ” of the state ’ and his or her ‘ substantive role in enforcing our labor laws on behalf of state law enforcement agencies. ’ ” ( Correia , supra , 32 Cal.App.5th at p. 620 .) Epic , therefore, does not undermine Iskanian ’s or Betancourt ’s characterization of PAGA claim s as law enforcement action s in which plaintiff s step into the shoes of the state

. Indeed, even after Epic , our Supreme Court has7 reiterated that employees bringing PAGA actions are acting as the proxy or agent of the state. ( ZB , supra , 8 Cal.5th at p. 185 .) Moreover, to the extent that Epic reconfirmed the breadth of the FAA, our
decision does not conflict with Epic

. The FAA “r equires courts ‘ rigorously ’ to ‘ enforce arbitration agreements according to their terms, including terms tha t specify with whom the parties choose to arbitrate their disputes

. ’ ” ( Epic , supra , __ U.S. at p. __ [ 138 S.Ct. at p. 1 621 ] .) And t he F A A’s “ saving clause allows courts to refuse to enforce arbitration agreements ‘ upon such grounds as exist at law or in equity for the revocation of any

contract. ’ ” ( Id

. at p. 1622 , quoting 9 U.S.C. § 2.) We conclude that Collie’s predispute arbitration agreeme nt is unenforceable for a reason that does apply to any contract : Ic ee cannot enforce a contractual provision to bind a nonparty. Icee also argues that Collie’s pursuit of “individual wage claims” under section
558 shows that this is a “private dispute arising out of his employment contract,” which
Collie must arbitrate. The argument lacks merit. Under section 558, any employer who violates overtime and other workday rules is subject to a civil penalty consisting of a fixed dollar amount per em ployee plus “an amount sufficient to recover unpaid wages.” (§ 558, subd. (a); accord ZB , supra , 8 Cal.5th at p. 187 .) But PAGA “ does not authorize employees to collect section 558’s unpaid wages through a PAGA action. ” ( ZB , at
p
. 188 .) Nor do employees have a private right of action under section 558. ( ZB , at
p p
. 18 8 , 197.) Under section 558, only the Labor Commissioner may issue citations for the fixed penalty plus unpaid wages. ( ZB , at p p . 188 , 197

- 198 .) Accordingly, a PAGA
claim seeking unpaid wages under section 558 includes an “impermissible request for8 relief.” ( ZB , at p. 198.) An impermissible request for relief cannot be compelled to arbitration any more than it can be litigated in court. ( Ibid. ) Thus, it is proper for the

court to deny a motion to compel arbitration of a PAGA claim for unpaid wages under section 558. ( ZB , at p. 198

. ) In sum, the court properly denied Icee’s motion to compel arbitration of Collie’s
PAGA action. The state

— the real party in interest

— is not bound by Collie’s predispute agreement to arbitrate. (Betancourt , supra , 9 Cal.App.5th at p. 446.)
DISPOSITION
The order denying Icee’s motion to compel arbitration is affirmed

. Collie shall

recover his costs of appeal

. (Cal. Rules of Court, rule 8.278(a)( 1 )

. )
CERTIFIED FOR PUBLICATION
MENETREZ J.

We concur:
McKINSTER Acting P. J.
MILLER J.