Filed 6/13/24 Aguilar v. Santa Catalina Healthcare CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

NANCY NIETO AGUILAR,

 Plaintiff and Respondent,

v.

SANTA CATALINA 

HEALTHCARE, INC. et al.,

 Defendants and Appellants.

 G062643

(Super. Ct. No. 30-2022- 

01254492)

 O P I N I O N

Appeal from an order of the Superior Court of Orange 

County, Peter J. Wilson, Judge. Reversed and remanded with 

directions.

Call & Jensen, Julie R. Trotter, Ellen Connelly Cohen and 

Melinda Evans for Defendants and Appellants.
2

Aegis Law Firm, Samuel A. Wong, Jessica L. Campbell and 

Ali S. Carlsen for Plaintiff and Respondent.

* * *

Defendants Santa Catalina Healthcare, Inc. and The Ensign 

Group, Inc. (collectively, defendants) appeal from a denial of their 

motion to compel arbitration of the individual portion of plaintiff Nancy 

Nieto Aguilar’s Labor Code Private Attorneys General Act of 2004 

(Labor Code, § 2698 et seq.; PAGA) claim. Relying on the United States 

Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana

(2022) 596 U.S. 639 (Viking River), and the language of the parties’ 

arbitration agreement, they contend the individual claim is subject to 

mandatory arbitration and the trial court erroneously interpreted the 

agreement to exempt all PAGA claims from arbitration. Applying 

principles of contract interpretation, we conclude the parties did not 

exempt PAGA claims from their agreed upon binding arbitration and 

plaintiff’s individual PAGA claim falls directly within the ambit of the 

agreement to arbitrate. Accordingly, we reverse the order denying 

defendants’ motion to compel and direct the trial court to enter a new 

order granting it with respect to the individual PAGA claim.

FACTS

Plaintiff is a former employee of defendant. At the time she 

was hired, in December 2020, she signed an arbitration agreement 

through which the parties “agree[d] to resolve by final and binding 

arbitration any and all claims or controversies . . . in any way arising 

out of, relating to or associated with Employee’s employment with the 

Company.” Claims covered by the agreement, which the agreement

refers to as “Arbitrable Disputes,” include without limitation, wage or 
3

other compensation related claims, as well as claims for violation of any 

statute or regulation (e.g., Labor Code, California wage orders). The 

agreement further specifies “that arbitration . . . shall be the exclusive 

forum for the resolution of any covered dispute between the parties.”

An additional provision provides as follows: “Both the 

Company and Employee waive any right either may otherwise have to 

pursue, file, participate in, or be represented in any Arbitrable Dispute 

brought in any court on a class basis or as a collection action, or as a 

representative action. Notwithstanding the foregoing, nothing 

contained in this Agreement shall preclude Employee from pursuing, 

filing, participating in or being represented in a representative claim 

brought under the state Private Attorneys General Act of 2004. All 

Arbitrable Disputes subject to this Agreement must be arbitrated as 

individual claims. This Agreement specifically prohibits the arbitration 

of any Arbitrable Dispute on a class basis, or as a collection action, or as 

a representative action . . . .”

In April 2022, plaintiff brought a putative class action 

lawsuit against defendant for alleged Labor Code violations involving, 

inter alia, wages, meal periods, rest breaks, and reimbursement of 

business expenses. She later amended her complaint to add a PAGA 

claim.1 Thereafter, the trial court granted a request she made to 

dismiss all claims except the PAGA claim.

Defendants moved to compel arbitration of the individual 

portion of the PAGA claim (i.e., alleged violations committed against 

1 The First Amended Complaint is not in the appellate record. 

On our own motion, we take judicial notice of it. (Evid. Code, §§ 452, 

subd. (d)(1), 459.) 
4

her) and to dismiss the non-individual portion of it (i.e., alleged 

violations committed against others). From their perspective, Viking 

River clarified that a PAGA claim could be split into individual and nonindividual aspects, and the general binding arbitration provision in the 

agreement compelled arbitration of the individual claim. They also 

argued doing so would compel dismissal of the non-individual portion of 

the claim based on lack of standing. 

Plaintiff opposed the motion, contending the parties’ 

agreement to arbitrate expressly excluded PAGA claims. As support, 

she cited the provision stating that nothing in the agreement precluded

her “from pursuing, filing, participating in or being represented in a 

representative claim brought under the state Private Attorneys General 

Act of 2004.” Plaintiff also separately argued the non-individual portion 

of the PAGA claim should, at worst, be stayed pending the outcome of 

the California Supreme Court’s decision in the then-pending case of 

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

The trial court heard argument and issued a ruling denying 

the motion to compel arbitration. Reading the language of the 

arbitration agreement, the court found it contained a class, collective 

and representative action waiver, but it expressly carved out PAGA 

actions from that waiver. And although it recognized Viking River

made clear PAGA claims may be divided into individual and nonindividual portions, the court found the PAGA carve-out could not be 

read to refer to only one aspect of a PAGA claim. In doing so, the court 

concluded the use of the word “representative” in the agreement was 

intended to encompass the notion, as recognized in Viking River, that 
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every PAGA action is a representative one because the plaintiff is 

acting as a representative of the state.

Following a clarification from the trial court concerning its 

ruling, defendants timely appealed. 

DISCUSSION

Defendants contend the arbitration agreement requires 

arbitration of plaintiff’s individual PAGA claim. They claim the 

provision relied on by the trial court and plaintiff to conclude otherwise 

simply confirms plaintiff’s right to pursue a PAGA claim despite the 

broad prohibition on class, collective and representative actions found 

elsewhere in the agreement. We begin with a general discussion of 

motions to compel, as well as PAGA and relevant case law, and then 

turn to the specific language of the parties’ arbitration agreement.

I. Motion to Compel Arbitration Principles and Standard of Review

“‘“‘“Although ‘[t]he law favors contracts for arbitration of 

disputes between parties’ [citation], ‘“there is no policy compelling 

persons to accept arbitration of controversies which they have not 

agreed to arbitrate . . . .”’”’” (Avery v. Integrated Healthcare Holdings, 

Inc. (2013) 218 Cal.App.4th 50, 59.) Thus, “‘[u]nder “both federal and 

state law, the threshold question presented by a petition to compel 

arbitration is whether there is an agreement to arbitrate.”’” (Long v. 

Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 861.) The party 

seeking to compel arbitration bears the burden of proving the existence 

of an arbitration agreement by a preponderance of the evidence. 

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

Beyond the existence of an agreement to arbitrate lies 

another key aspect of the analysis — whether a particular dispute falls 
6

within the scope of the agreement. “‘When deciding whether the parties 

agreed to arbitrate a certain matter . . . , courts generally . . . should 

apply ordinary state-law principles that govern the formation of 

contracts.’” (Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 

387.) “It is . . . solely a judicial function to interpret a written 

instrument unless the interpretation turns upon the credibility of 

extrinsic evidence.” (Parsons v. Bristol Development Co. (1965) 62 

Cal.2d 861, 865.) Neither party relies on extrinsic evidence in this case.

Because the trial court’s denial of defendants’ motion to 

compel was purely based on a decision of law, we employ a de novo 

standard of review. (Franco v. Greystone Ridge Condominium (2019) 39 

Cal.App.5th 221, 227.)

II. PAGA, Iskanian, and Viking River

“The Legislature enacted PAGA almost two decades ago in 

response to widespread violations of the Labor Code and significant 

underenforcement of those laws.” (Adolph, supra, 14 Cal.5th at p.

1116.) In doing so, it created new civil penalties for various Labor Code 

violations and provided for aggrieved employees, acting as private 

attorneys general, to recover those penalties. (Ibid.) “An employee who 

brings a PAGA action to recover civil penalties acts ‘“as the proxy or 

agent’” of the state. [Citation.] ‘PAGA is designed primarily to benefit 

the general public, not the party bringing the action.’ [Citation.] 

Penalties recovered are dedicated largely ‘to public use . . . instead of 

being awarded entirely to a private plaintiff.’” (Ibid.)

Roughly a decade after the legislative enactment, the 

California Supreme Court, in Iskanian v. CLS Transportation Los 

Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) “held that a predispute 
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categorical waiver of the right to bring a PAGA action is unenforceable.” 

(Adolph, supra, 14 Cal.5th at p. 1117, citing Iskanian, at pp. 382-383.) 

It reasoned such a waiver violates certain Civil Code provisions and 

public policy. (Iskanian, at pp. 383-384.) The court also “held 

unenforceable an agreement that, while providing for arbitration of 

alleged Labor Code violations sustained by the plaintiff employee 

([i.e.,] . . . individual claims), compels waiver of claims on behalf of other 

employees (i.e., non-individual claims).” (Adolph, at pp. 1117-1118, 

citing Iskanian, at p. 384.) 

In the wake of Iskanian, several California appellate courts 

“held that employers [could] not require employees to ‘split’ PAGA 

actions in a manner that put[] individual and non-individual 

components of a PAGA claim into bifurcated proceedings.” (Adolph, 

supra, 14 Cal.5th at p. 1118; see, e.g., Perez v. U-Haul Co. of California

(2016) 3 Cal.App.5th 408, 420-421; Williams v. Superior Court (2015) 

237 Cal.App.4th 642, 649.) 

The United States Supreme Court shook up the decisional 

landscape in Viking River. Before the court was a predispute 

employment contract arbitration provision which specified that “in any 

arbitral proceeding, the parties could not bring any dispute as a class, 

collective, or representative PAGA action.” (Viking River, supra, 596 

U.S. at p. 647.) The contract “also contained a severability clause 

specifying that if the waiver was found invalid, any class, collective, 

representative, or PAGA action would presumptively be litigated in 

court. But under that severability clause, if any ‘portion’ of the waiver 

remained valid, it would be ‘enforced in arbitration.’” (Ibid.) 
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Given Iskanian’s prohibition on a predispute categorial 

PAGA claim waiver, a rule which the high court let stand, the court 

found the severability clause evidenced the parties’ agreement to 

arbitrate the plaintiff’s individual PAGA claims. (Viking River, supra, 

596 U.S. at pp. 656-659, 662.) Underscoring that arbitration 

agreements are matters of consent, it explained the Federal Arbitration 

Act (9 U.S.C. § 1 et seq.; FAA) compels enforcement of the specific terms 

agreed to by the parties. (Viking River, at pp. 659-662.) Thus, the high 

court concluded Iskanian was preempted by the FAA to the extent it 

precluded enforcement of an arbitration agreement through which the 

parties agreed to divide a PAGA action into individual and nonindividual claims, with different dispute resolution forums for each. 

(Viking River, at p. 662.)

III. Plaintiff’s PAGA Claim

At the core of the parties’ dispute is the meaning of the 

following sentence in the arbitration agreement: “Notwithstanding the 

foregoing, nothing contained in this Agreement shall preclude Employee 

from pursuing, filing, participating in or being represented in a 

representative claim brought under the state Private Attorneys General 

Act of 2004.” Defendants contend the trial court erred in concluding 

that sentence exempts all PAGA claims from arbitration. They argue it 

instead was intended to simply be a statement of compliance with the 

law as it stood at the time the agreement was signed — that employees 

could not be forced to relinquish the right to bring a PAGA claim

through a predispute wholesale waiver. Plaintiff argues the trial court 

got it right; the provision carves out all PAGA claims from the 

requirement to arbitrate.
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Critical to our resolution of this issue are well-established 

principles of contract interpretation. (First Options of Chicago, Inc. v. 

Kaplan (1995) 514 U.S. 938, 944 [court should use state law principles 

regarding formation of contracts when determining whether parties 

agreed to arbitrate certain matter].) Our mission is to give effect to the 

mutual intention of the parties at the time they formed the contract. 

(Civ. Code, § 1636; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) 

We discern such intent from the written contract alone, if possible, 

giving the words their ordinary and popular meaning unless a 

specialized or technical meaning is expressed or evident. (Civ. Code, 

§§ 1639, 1644; Hess, at p. 524.) Provisions must be read in their context 

and the whole of the contract must be considered (Civ. Code, § 1641; 

Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1027), with due 

attention paid “to the circumstances under which it was made and the 

matter to which it relates.” (Mountain Air Enterprises, LLC v. 

Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752; see Civ. Code, 

§ 1647). In the end, we must give effect to all provisions, avoiding any 

interpretation which would render words or clauses inoperative or 

meaningless. (Civ. Code, § 1641; Rebolledo v. Tilly’s, Inc. (2014) 228 

Cal.App.4th 900, 923.)

Reading the disputed provision in context, the plain 

language unambiguously memorializes plaintiff’s right to bring a PAGA 

claim. Although the first sentence of the same paragraph purports to be 

an all-encompassing waiver of class, collective and representative 

claims, the contested language clarifies the waiver does not include 

PAGA claims. As defendants note, this type of structure was consistent 

with the state of the law at the time the agreement was signed, and it 
10

continues to be consistent with the law post-Viking River. A predispute 

categorial PAGA claim waiver was and is unenforceable. (Viking River, 

supra, 596 U.S. at pp. 656-659, 662; Iskanian, supra, 59 Cal.4th at p. 

383; see Adolph, supra, 14 Cal.5th at p. 1117 [noting Viking River left 

undisturbed Iskanian’s holding that predispute PAGA action categorical 

waiver is unenforceable].)

Contrary to plaintiff’s assertion, nothing in the PAGA 

exception speaks to an agreed upon forum for a PAGA claim. The 

language is confined to recognizing plaintiff’s right to bring such a 

claim. Thus, the other provisions of the agreement which detail the 

forum for “Arbitrable Disputes,” the definition of which includes a 

PAGA claim, govern. Those provisions provide that arbitration is the 

required forum, and they expressly restrict the arbitrator’s authority 

and jurisdiction to individual claims only. Combined, and consistent 

with Viking River, this means plaintiff’s individual PAGA claim must 

be arbitrated. (See Viking River, supra, 596 U.S. at pp. 659-662 

[individual and non-individual PAGA claims may be separated, with 

individual claim sent to arbitration if parties’ agreement so specifies].)

Had the parties wanted to exempt PAGA claims from 

mandatory arbitration, they could have done so. Indeed, they included 

an exemption for other specified types of claims: “This 

agreement . . . does not apply to or cover claims for workers’ 

compensation benefits or compensation, claims for unemployment 

compensation benefits, or claims based upon an employee pension or 

benefit plan the terms of which contain an arbitration or other nonjudicial dispute resolution procedure . . . .” The parties chose not to do 

the same for PAGA claims, and we cannot rewrite their agreement 
11

under the guise of contract interpretation. (Code Civ. Proc., § 1858; 

Moreno v. Jessup Buena Vista Dairy (1975) 50 Cal.App.3d 438, 446-447; 

Moss Dev. Co. v. Geary (1974) 41 Cal.App.3d 1, 9.)

Because the unambiguous contractual language 

demonstrates the parties agreed the individual PAGA claim would be 

resolved in arbitration, the trial court erred in denying defendants’ 

motion to compel arbitration of that aspect of her claim.

As for plaintiff’s non-individual PAGA claim, the parties took 

differing positions below as to what should be done with it if the 

individual claim was sent to arbitration. The trial court never reached 

the issue, and neither party takes a position on appeal regarding the 

non-individual claim. Thus, we find it more appropriate for the trial 

court to address such matter in the first instance if and when raised by 

one of the parties on remand.
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DISPOSITION

The order is reversed. On remand, the trial court shall: 

vacate its order denying defendants’ motion to compel; consider the 

parties arguments, if any, regarding plaintiff’s non-individual PAGA 

claim; and, enter a new order granting defendants’ motion to compel as 

to the individual portion of plaintiff’s PAGA claim and handling the 

non-individual PAGA claim as it deems appropriate under the 

circumstances. Defendants are entitled to costs on appeal.

DELANEY, J.

WE CONCUR:

GOETHALS, ACTING P. J.

GOODING, J.