Filed 7/14/23 Hunt v. Simplified Labor Staffing Solutions CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ANDRE HUNT,

Plaintiff and Respondent,

v.

SIMPLIFIED LABOR STAFFING 

SOLUTIONS, INC.,

Defendant and Appellant. 

B319792

(Los Angeles County

Super. Ct. No. 21STCV23795)

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephanie M. Bowick, Judge. Reversed and 

remanded with directions.

Hill Farrer & Burrill, E. Sean McLoughlin and Clayton J. 

for Defendant and Appellant.

James R. Hawkins, Gregory Mauro, Mitchell J. Murray and 

Michael Calvo for Plaintiff and Respondent.

_________________________
2

INTRODUCTION

Simplified Labor Staffing Solutions, Inc. (Simplified) 

appeals an order denying its motion to compel arbitration of 

Andre Hunt’s (Hunt) claim under the California Private 

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)

(PAGA).1 Simplified’s motion was based on Hunt’s predispute 

agreement to arbitrate all claims arising from their employment 

relationship.

On appeal, Hunt concedes that his claim for civil penalties 

based on alleged Labor Code violations he personally suffered 

(his “individual” PAGA claim) is subject to arbitration under 

Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___ [213 

L.Ed. 2d, 142 S.Ct. 1906] (Viking River), decided three months 

after the trial court’s order denying the motion to compel 

arbitration. We agree and reverse. We remand with directions to 

enter an order compelling Hunt’s individual PAGA claim to 

arbitration.

We further hold that the scope of the arbitration agreement 

is to be determined by the arbitrator, in accordance with the 

American Arbitration Association’s Employment Arbitration 

Rules and Mediation Procedures, incorporated into the parties’ 

arbitration agreement. Specifically, the parties’ dispute about 

whether non-individual PAGA claims are governed by the 

arbitration agreement, in the same way individual PAGA claims 

are, is an issue for the arbitrator to address. Accordingly, we

reverse with directions that the arbitrability of Hunt's nonindividual PAGA claims should be determined by the arbitrator.

1 Undesignated statutory references are to the Labor Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

I. Background Information

Simplified operates as a workforce temporary staffing 

agency, providing services to various businesses to meet their 

staffing needs.

On May 14, 2020, Hunt was employed by Simplified as a 

“non-exempt” employee. He was assigned by Simplified to 

perform services at Yusen Logistics (Americas), Inc. (Yusen), 

which operates as a transportation and logistics company.

Hunt’s last day of employment was sometime in late 

October 2020.

II. Hunt’s Complaint2

On June 28, 2021, Hunt filed a complaint against 

Simplified and Yusen, alleging a single PAGA claim “on behalf 

[of] the general public and all non-exempt aggrieved employees, 

acting on behalf of the California Attorney General as private 

attorney general.” Hunt qualified his complaint as a 

“representative” action. He alleged Simplified violated various 

provisions of the Labor Code by implementing policies and 

practices resulting in failure to pay wages (including overtime

and final pay), as well as failure to provide adequate meal 

periods, rest breaks, and accurate itemized wage statements. 

Hunt sought to recover civil penalties under PAGA for the alleged 

violations.

III. Simplified’s Motion to Compel Arbitration

2 Before filing his complaint, Hunt complied with notice 

requirements pursuant to section 2699.3 and sent a letter to the 

California Labor and Workforce Development Agency (LWDA) on 

April 22, 2021, apprising it of his alleged claims.
4

On September 27, 2021, Simplified moved to compel 

arbitration of Hunt’s PAGA claim and to stay proceedings in the 

trial court pending arbitration.

Simplified alleged it is “involved in interstate commerce” 

within the meaning of the Federal Arbitration Act (FAA).3 

Simplified “do[es] business in California and other States” and 

has “numerous office locations in Southern California and also in 

States other than California, including Texas, Nevada and South 

Carolina.” Simplified “supplies labor and staffing to customers in 

California and to customers who are based outside of California.”

On May 14, 2020, in connection with his employment by 

Simplified, Hunt signed the “EMPLOYEE AGREEMENT TO 

ARBITRATE (Arbitration Agreement) which required he submit 

all claims and disputes related to his employment with Simplified 

to binding arbitration. Simplified attached, as an exhibit, a copy 

of the Arbitration Agreement. It provides in relevant part:

“I acknowledge that I have received and reviewed a copy of 

the Company’s Mutual Arbitration Policy (‘MAP’) and . . . I 

understand that the MAP is a condition of my employment. I 

agree that it is my obligation . . . to submit to final and binding 

arbitration any and all claims and disputes, whether they exist 

now or arise in the future, that are related in any way to my 

employment or the termination of my employment with the 

3 The FAA stands as a congressional declaration of a liberal 

policy favoring arbitration agreements, notwithstanding any 

state substantive or procedural policies to the contrary. (Vaughn 

v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 232.) To ensure that 

arbitration agreements are enforced according to their terms, the 

FAA preempts state laws which require a judicial forum for the 

resolution of claims which the contracting parties agreed to 

resolve by arbitration. (Ibid.)
5

Company except as otherwise permitted by MAP. I understand 

that final and binding arbitration will be the sole and exclusive 

remedy for any such claim or dispute against the Company or 

any affiliated companies or entities, . . . and that, by agreeing to 

use arbitration to resolve my disputes, both the Company and I 

agree to forego any right we each may have had to a jury trial on 

issues covered by the MAP, and forego any right to bring claims 

on a class or collective basis. I also agree that such arbitration 

will be . . . conducted under the [FAA] and the applicable 

procedural rules of the American Arbitration Association.” 

(Italics added.)

Simplified also attached as an exhibit to its motion a copy 

of its MAP. The MAP provides in relevant part:

Simplified “has adopted and implemented a new 

arbitration policy, requiring mandatory, binding arbitration of all

disputes, for all employees, regardless of length of service.” The 

MAP is a “mandatory condition of employment” and “will govern 

any existing and all future disputes between you and the 

Company that relate in any way to your employment.” The MAP 

“covers all disputes relating to or arising out of or in connection 

with employment . . . or the termination of that employment, 

whether those disputes already exist today or arise in the future.”

The type of disputes or claims covered by the MAP include 

but are not limited to “claims against employees for fraud, 

conversion, misappropriation of trade secrets, or claims by 

employees for wrongful termination of employment, breach of 

contract, fraud, employment discrimination, harassment, or

retaliation under the Americans With Disabilities Act, the Age 

Discrimination in Employment Act, the Fair Labor Standards 

Act, Title VII of the Civil Rights Act of 1964 and its amendments, 
6

the California Fair Employment and Housing Act or any other 

state or local anti-discrimination laws, tort claims, wage or 

overtime claims or other claims under the Labor Code, or any 

other legal or equitable claims and causes or action recognized by 

local, state or federal law or regulations.” (Italics added.) The 

MAP does not cover workers’ compensation claims, 

unemployment insurance claims, or any claims that could be 

made to the National Labor Relations Board.

The MAP further specifies: “Your decision to accept 

employment or to continue employment with the Company 

constitutes your agreement to be bound by the MAP. . . . This 

mutual obligation to arbitrate claims means that both you and the 

Company are bound to use the MAP as the only means of resolving 

any employment-related disputes covered by the policy. . . . This 

mutual agreement to arbitrate claims also means that both you 

and the Company forego any right either may have to a jury trial 

on claims relating in any way to your employment. Because the 

arbitration proceeding will be a traditional, bilateral arbitration, 

it also means that both you and the company forego and waive 

any right to join or consolidate claims in arbitration with others 

or to make collective or class claims in arbitration, either as a 

representative or a member of a class, unless such procedures are 

agreed to by both you and the Company.” (Italics added, 

underscoring omitted.) The MAP “shall be governed solely by” 

the FAA.
7

Simplified also provided a copy of the Employment 

Arbitration Rules and Mediation Procedures of the American 

Arbitration Association. It provides, in relevant part, under the 

heading “Jurisdiction” that “[t]he arbitrator shall have the power 

to rule on his or her own jurisdiction, including any objections 

with respect to the existence, scope, or validity of the arbitration 

agreement.” (Italics added.)

Following Hunt’s last day of employment, “[d]espite his 

agreement to arbitrate, [Hunt] initiated a civil action against 

Simplified and Yusen [with] claims required to be arbitrated 

under [his] May 14, 2020 Arbitration Agreement.” Simplified 

argued it is entitled under the FAA to an order directing Hunt to 

proceed to arbitration in accordance with the terms of his 

Arbitration Agreement. Simplified further argued it is entitled to 

an order staying further proceedings in this action until 

arbitration is completed.

On November 12, 2021, Hunt opposed the motion to compel 

arbitration. Relying on Iskanian v. CLS Transportation Los 

Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), Hunt argued the 

FAA does not apply to a PAGA action, which “is strictly a 

representative action brought by a plaintiff merely as the ‘proxy’ 

of the State’s labor law enforcement agencies.” Hunt “is not 

suing in his private capacity” but rather “on behalf of the state of 

California pursuant to PAGA.” “[T]he fact [that Hunt] entered 

into a predispute agreement to arbitrate . . . his employment 

claims, does not apply in this instance because the state is not 

bound by the MAP.” Hunt argued “no claims exist in this [action] 

that permit[] [Simplified] to split [Hunt’s] PAGA claims into 

arbitrable ‘individual claims’ and ‘non-arbitrable representative 

claims.’ ”
8

On February 2, 2022, Simplified filed a brief in support of 

its motion to compel arbitration. Simplified argued Hunt failed 

to offer any evidence or declaration in support of his claim. 

Simplified also argued that the Arbitration Agreement signed by 

Hunt “covers the claims in his lawsuit” as the FAA “has been 

applied to require arbitration of exactly the same types of Labor 

Code violations alleged by Hunt.” Finally, Simplified argued an 

“alternative basis for stay also exists” given that the United 

States Supreme Court “recently granted a petition for writ of 

certiorari” in Viking River, which will decide “the question of 

whether the FAA requires bilateral arbitration of PAGA claims.”

Sandra Senbol (Senbol), the Vice President of Operations at 

Simplified since 2016, submitted a declaration in support of 

Simplified’s motion, that stated: Simplified “do[es] business in 

California and other States” and “supplies labor and staffing to 

customers in California and to customers who are based outside 

of California.” Simplified has “office locations in Southern 

California and also in States other than California, including 

Washington and New Jersey.”

IV. Trial Court’s Ruling

On March 2, 2022, the hearing on Simplified’s motion to 

compel arbitration and stay the action took place. Following oral 

argument by the parties, the court denied Simplified’s request 

that the court take the matter under submission and stay the 

action pending a decision on the issue by the United States

Supreme Court in the Viking River case. The court then denied 

Simplified’s motion and ordered Simplified to file an answer 

within 30 days.

This appeal followed.
9

DISCUSSION

Relying upon the Viking River decision, Simplified argues 

the FAA applies to Hunt’s PAGA claim and preempts California’s 

judicially created “State must consent” rule articulated by a 

series of post-Iskanian appellate decisions barring enforcement of 

an employee’s predispute agreement to arbitrate an “individual”

PAGA claim for civil penalties. Simplified contends the trial 

court’s order cannot survive Viking River, and requests that we 

reverse the trial court’s denial order and remand with 

instructions that the trial court compel arbitration of Hunt’s 

“individual” PAGA claim per the terms of the Arbitration 

Agreement and the incorporated MAP.

Simplified further argues that because the terms of the 

Arbitration Agreement and MAP “prohibit collective claims in 

arbitration and because the parties expressly waived any joinder 

or aggregation of claims, the arbitration proceeding ordered must 

be an individualized one.” Simplified thus requests that further 

judicial proceedings be stayed to await completion of the 

arbitration proceeding and to not reach the issue of Hunt’s 

representative/non-individual PAGA claim until after the 

arbitration. Alternatively, Simplified requests we dismiss Hunt’s 

non-individual claim.

I. Standard of Review

Where, as here, the trial court’s order denying a motion to 

compel arbitration rests solely on a decision of law, we review 

that decision de novo. (Seifu v. Lyft, Inc. (2023) 89 Cal.App.5th 

1129, 1136 (Seifu); Gregg v. Uber Technologies, Inc. (2023) 

89 Cal.App.5th 786, 794.)
10

II. Applicable Law

A. PAGA

“California’s Labor Code contains a number of provisions

designed to protect the health, safety, and compensation of 

workers. Employers who violate these statutes may be sued by 

employees for damages or statutory penalties. [Citations.] . . . 

Several Labor Code statutes provide for additional civil penalties, 

generally paid to the state unless otherwise provided. [Citation.] 

Before PAGA’s enactment, only the state could sue for civil

penalties.” (Kim v. Reins International California, Inc. (2020) 

9 Cal.5th 73, 80 (Kim), citing Iskanian, supra, 59 Cal.4th at 

p. 378.)

Before 2004, the LWDA was responsible for collecting civil 

penalties for labor law violations. (Nickson v. Shemran, Inc.

(2023) 90 Cal.App.5th 121, 127 (Nickson).) The Legislature

found, however, that the LWDA lacked sufficient resources to 

keep pace with the sheer number and gravity of offenses. (Ibid.) 

As a solution, the Legislature enacted PAGA to empower 

aggrieved employees to act as private attorneys general to 

prosecute and recover civil penalties for Labor Code violations on 

the State’s behalf. (§ 2699, subd. (a); Nickson, at p. 127; Seifu, 

supra, 89 Cal.App.5th at p. 1137.) Although an aggrieved 

employee is the named plaintiff in a PAGA action, an employee 

suing under PAGA “ ‘does so as the proxy or agent of the state’s 

labor law enforcement agencies.’ ” (Kim, supra, 9 Cal.5th at 

p. 81, italics omitted; Seifu, at p. 1137.) Thus, “[e]very PAGA 

claim is ‘a dispute between an employer and the state,’ ” and 

“[r]elief under PAGA is designed primarily to benefit the general 

public, not the party bringing the action.” (Kim, at p. 81.)
11

Two types of claims authorized by PAGA are “ ‘individual’ 

PAGA claims, which are based on Labor Code violations 

sustained by the plaintiff, [and] ‘representative’ [or nonindividual] PAGA claims, which are based on Labor Code 

violations involving employees other than the plaintiff.” (Galarsa 

v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 647, italics 

added.)

B. Iskanian Decision

In Iskanian, supra, 59 Cal.4th at p. 382, the California 

Supreme Court held that “an employee’s right to bring a PAGA 

action is unwaivable.” The court rejected the employer’s 

argument that the arbitration agreement was enforceable 

because it allowed an individual PAGA claim, barring only

“representative” (i.e., non-individual) PAGA claims, concluding 

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” and “unenforceable as a matter of state law.” (Id. at 

pp. 360, 384.) Iskanian also concluded the FAA did not preempt 

state law in that respect, because the “FAA’s goal of promoting 

arbitration as a means of private dispute resolution does not 

preclude our Legislature from deputizing employees to prosecute 

Labor Code violations on the state’s behalf.” (Id. at p. 360.)

C. Viking River Decision

On June 15, 2022, the United States Supreme Court 

decided Viking River, addressing the extent to which the FAA 

preempts the Iskanian rule barring PAGA waivers. Viking River

abrogated Iskanian in part and held that an employer could 

enforce an agreement calling for arbitration of individual PAGA 
12

claims. (Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at 

pp. 1916–1917, 1924–1925].)

The Viking River court described the two rules adopted by 

Iskanian. Iskanian’s “principal rule prohibits waivers of

‘representative’ PAGA claims . . . . That is, it prevents parties 

from waiving representative standing to bring PAGA claims in a 

judicial or arbitral forum.” (Viking River, supra, 596 U.S. at 

p. ___ [142 S.Ct. at p. 1916], italics omitted.) Iskanian’s 

“secondary rule . . . invalidates agreements to separately 

arbitrate or litigate ‘individual PAGA claims for Labor Code 

violations that an employee suffered,’ on the theory that resolving 

victim-specific claims in separate arbitrations does not serve the 

deterrent purpose of PAGA.” (Id. at pp. 1916–1917.)

The Viking River Court explained that PAGA claims are 

“representative” in two ways. (Viking River, supra, 596 U.S. at 

p. ___ [142 S.Ct. at p. 1916].) First, all PAGA claims are

“representative” because a plaintiff brings a PAGA claim as an 

agent or proxy before the state. (Ibid.) Second, some PAGA 

claims are “representative” because they are brought by 

employees to address violations suffered by other employees as 

well as themselves. (Ibid.) In light of this distinction, the 

Supreme Court held that Iskanian’s “principal rule” prohibiting

“wholesale” waivers of an employee’s right to pursue a 

“representative” PAGA claim on behalf of the state was not 

preempted by the FAA. (Id. at pp. 1916–1917.) That is because 

“the FAA does not require courts to enforce contractual waivers of 

substantive rights and remedies.” (Id. at p. 1919.)

On the other hand, Viking River held Iskanian’s “secondary 

rule,” prohibiting the separation of individual and non-individual 

PAGA claims, was preempted by the FAA to the extent it 
13

“invalidates agreements to arbitrate only ‘individual PAGA 

claims for Labor Code violations that an employee suffered.’ ” 

(Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at p. 1923].) 

Iskanian’s “prohibition on contractual division of PAGA actions 

into constituent claims unduly circumscribes the freedom of 

parties to determine ‘the issues subject to arbitration’ and ‘the 

rules by which they will arbitrate,’ [citation], and does so in a 

way that violates the fundamental principle that ‘arbitration is a 

matter of consent.’ ” (Ibid.) Accordingly, an arbitration 

agreement compelling individual claims to arbitration was 

enforceable as to the individual portion of a PAGA claim. (Id. at 

p. 1925] [“Viking was entitled to enforce the agreement insofar as 

it mandated arbitration of Moriana’s individual PAGA claim.”].)

Viking River stated the “conflict between PAGA’s 

procedural structure and the FAA . . . derives from the statute’s 

built-in mechanism of claim joinder,” which permits broad joinder 

of the claims of other employees to the claim of the individual 

plaintiff. (Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at 

p. 1923].) “A state rule imposing an expansive rule of joinder in 

the arbitral context would defeat the ability of parties to control 

which claims are subject to arbitration. Such a rule would permit 

parties to superadd new claims to the proceeding, regardless of 

whether the agreement between them committed those claims to 

arbitration. Requiring arbitration procedures to include a joinder

rule of that kind compels parties to either go along with an 

arbitration in which the range of issues under consideration is 

determined by coercion rather than consent, or else forgo 

arbitration altogether. Either way, the parties are coerced into 

giving up a right they enjoy under the FAA.” (Id. at p. 1924.)
14

Viking River continued, “When made compulsory by way of

Iskanian, the joinder rule internal to PAGA functions in exactly 

this way. Under that rule, parties cannot agree to restrict the 

scope of an arbitration to disputes arising out of a particular

‘ “ ‘transaction’ ” ’ or ‘ “common nucleus of facts.” ’ [Citation.] If 

the parties agree to arbitrate ‘individual’ PAGA claims based on 

personally sustained violations, Iskanian allows the aggrieved 

employee to abrogate the agreement after the fact and demand 

either judicial proceedings or an arbitral proceeding that exceeds 

the scope jointly intended by the parties. The only way for 

parties to agree to arbitrate one of an employee’s PAGA claims is 

to also ‘agree’ to arbitrate all other PAGA claims in the same 

arbitral proceeding.” (Viking River, supra, 596 U.S. at p. ___

[142 S.Ct. at p. 1924].) For these reasons, Viking River held “the 

FAA preempts the rule of Iskanian insofar as it precludes 

division of PAGA actions into individual and non-individual 

claims through an agreement to arbitrate.” (Ibid.)

Finally, the Viking River decision concluded the 

representative/“non-individual” claim had to be dismissed 

because the plaintiff no longer had standing to assert the claim. 

(Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at p. 1925].) 

The court reasoned, “PAGA provides no mechanism to enable a 

court to adjudicate non-individual PAGA claims once an 

individual claim has been committed to a separate proceeding. 

Under PAGA’s standing requirement, a plaintiff can maintain

non-individual PAGA claims in an action only by virtue of also 

maintaining an individual claim in that action.” (Ibid.) The 

Court continued, “When an employee’s own dispute is pared away 

from a PAGA action, the employee is no different from a member 

of the general public, and PAGA does not allow such persons to 
15

maintain suit. [Citation.] As a result, [the plaintiff] lacks 

statutory standing to continue to maintain her non-individual 

claims in court, and the correct course is to dismiss her

remaining claims.” (Ibid.)

Regarding this final point, Justice Sotomayor observed in a 

concurrence that, “if this Court’s understanding of state law is 

wrong, California courts, in an appropriate case, will have the 

last word. Alternatively, if this Court’s understanding is right, 

the California Legislature is free to modify the scope of statutory 

standing under PAGA within state and federal constitutional 

limits.” (Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at 

p. 1926].) This issue is presently pending before the California 

Supreme Court in Adolph v. Uber Technologies, Inc., review 

granted July 20, 2022, S274671.

III. Analysis

Preliminarily, we briefly address Hunt’s argument—raised 

for the first time on appeal—that Simplified “did not demonstrate 

that the Arbitration Agreement involves interstate commerce” 

and as such, does not support a finding that the FAA governs the 

Arbitration Agreement. As a general rule, issues not raised in 

the trial court cannot be raised for the first time on appeal. 

(Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603.) Simplified 

relies on this general rule in urging us not to consider Hunt’s 

argument that Simplified failed to show the FAA applied to the 

Arbitration Agreement.

The general rule against new issues is subject to an 

exception that grants appellate courts the discretion to address 

questions not raised in the trial court when the theory presented 

for the first time on appeal involves only a legal question 
16

determinable from facts that are (1) uncontroverted in the record 

and (2) could not have been altered by the presentation of 

additional evidence. (County of Kern v. T.C.E.F., Inc. (2016) 

246 Cal.App.4th 301, 326; Redevelopment Agency v. City of 

Berkeley (1978) 80 Cal.App.3d 158, 167.)

We conclude the exception to the general rule does not 

apply to the new argument raised on appeal by Hunt. First, the 

claim that Simplified failed to make a showing that the FAA 

applied could have been addressed if it had been raised in the 

trial court because such a showing involves the presentation of 

evidence. Second, Simplified’s motion to compel arbitration 

expressly alleged it is “involved in interstate commerce” within 

the meaning of the FAA and explained it “do[es] business in,” has 

“numerous office locations in,” and “supplies labor and staffing to 

customers in” California and in other states. The record provided 

us includes the declaration of Senbol, the Vice President of 

Operations at Simplified, who stated: Simplified “do[es] business 

in California and other States” and “supplies labor and staffing to 

customers in California and to customers who are based outside 

of California.” Simplified has “office locations in Southern 

California and also in States other than California, including 

Washington and New Jersey.” The record also includes a copy of 

the Arbitration Agreement which provides that Hunt “agree[s] 

that such arbitration will be . . . conducted under the [FAA]” and 

a copy of the MAP which specifies the MAP “shall be governed 

solely by” the FAA. The foregoing constitutes adequate evidence 

in support of our decision not to consider Hunt’s newly raised 

claim. 
17

A. Individual Claim

Simplified argues that Viking River’s “definitive 

interpretation of the FAA requires this Court to enforce the 

parties’ agreement to resolve Hunt’s disputes in individual 

arbitration.” Hunt concedes in his brief that in light of Viking 

River, Hunt’s individual PAGA claim “should be compelled to 

arbitration.”

We agree and reverse the trial court’s order as to Hunt’s 

individual PAGA claim given the Viking River decision.

The type of disputes or claims that Hunt agreed to 

arbitrate include individual PAGA civil penalty claims. The 

MAP, incorporated into the Arbitration Agreement, expressly 

provided “wage or overtime claims or other claims under the 

Labor Code” shall be arbitrated.

In addition, the Arbitration Agreement specifies that Hunt 

and Simplified “forego any right to bring claims on a class or 

collective basis.” (Italics added.) The MAP explicitly provides 

that “[b]ecause the arbitration proceeding will be a traditional, 

bilateral arbitration, it also means that both you and the 

Company forego and waive any right to join or consolidate claims 

in arbitration with others or to make collective or class claims in 

arbitration, either as a representative or a member of a class . . . .” 

(Italics added.)

As is apparent, the terms include the waiver of the right to 

bring a representative PAGA action. It does not involve a waiver 

of the right to bring an individual PAGA action. Under Iskanian, 

“where, as here, an employment agreement compels the waiver of 

representative claims under the PAGA, it is contrary to public 

policy and unenforceable as a matter of state law.” (Iskanian, 

supra, 59 Cal.4th at p. 384.) Under Viking River, however, where 
18

a predispute agreement provides for arbitrating only individual 

(not representative) PAGA claims, that portion of the action may 

be compelled to arbitration. Thus, per Viking River, we reverse 

the denial of the motion to compel arbitration as it relates to 

Hunt’s individual PAGA civil penalty claims and enforce the 

parties’ agreement to resolve the individual PAGA claims via 

arbitration.

B. Representative/Non-Individual Claim

Simplified argues we need not reach the issue of the 

remaining representative/non-individual claim and should stay 

further judicial proceedings until the arbitration is first 

concluded. In the alternative, Simplified argues that we apply 

Viking River and order the dismissal of any non-individual PAGA 

claims alleged by Hunt, because he agreed to pursue any claims 

arising out of his employment exclusively via arbitration—not via 

court action—and because of Hunt’s “waive[r] [of] any right to 

join or consolidate claims in arbitration with others or to make 

collective or class claims in arbitration, either as a representative 

or a member of a class.”

Hunt argues his “non-individual” PAGA claims should 

remain in court, given that, under Kim, Hunt retains standing to 

prosecute such claims, and further, that the parties did not agree 

to arbitrate them.

We disagree with both parties.

The parties’ Arbitration Agreement incorporates the 

Employment Arbitration Rules and Mediation Procedures of the 

American Arbitration Association and provides that the parties 

“agree that such arbitration will be . . . conducted under the . . . 

applicable procedural rules of the American Arbitration 

Association.” It provides, under the heading “Jurisdiction”: “The 
19

arbitrator shall have the power to rule on his or her own 

jurisdiction, including any objections with respect to the 

existence, scope, or validity of the arbitration agreement.” (Italics 

added.) This, we find, clearly provides that whether the 

agreement to arbitrate extends to Hunt’s non-individual PAGA 

claims is an issue that falls within the arbitrator’s 

power/jurisdiction and should thus be determined by the 

arbitrator. (See Nguyen v. Applied Medical Resources Corp.

(2016) 4 Cal.App.5th 232, 245 [arbitrability is determined by 

arbitrator under AAA rules].) The parties’ dispute about whether 

non-individual PAGA claims are governed by the arbitration 

agreement, in the same way individual PAGA claims are, is an 

issue for the arbitrator to address. Similarly, whether or not 

Simplified’s request for a stay of judicial proceedings is 

warranted is a question within the purview of the arbitrator.

Based on the foregoing, we remand with directions that, 

when the case is ordered to arbitration, the scope of the claims 

subject to arbitration be submitted for determination by the 

arbitrator.
20

DISPOSITION

The order denying Simplified’s motion to compel arbitration 

is reversed and remanded with directions.

Because reversal is the result of an intervening change in 

law, in the interests of justice, the parties shall bear their own 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

VIRAMONTES, J.