Filed 3/28/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ARTHUR ZAKARYAN,

Plaintiff and Respondent,

v.

THE MEN'S WEARHOUSE, 

INC., et al.,

Defendants and 

Appellants.

 B289192

 (Los Angeles County

 Super. Ct. No. BC647541)

APPEAL from an order of the Superior Court of Los 

Angeles County. Richard E. Rico, Judge. Affirmed.

Gartenberg Gelfand Hayton, Aaron C. Gundzik, and 

Rebecca G. Gundzik for Plaintiff and Respondent.

Lebe Law, and Jonathan M. Lebe for Plaintiff and 

Respondent. 

Carothers DiSante and Freudenberger, and Amy S. 

Williams for Defendants and Appellants.
Vorys, Sater, Seymour and Pease, Mark A. Knueve, and 

Cory D. Catignani for Defendants and Appellants.

* * * * * *

The Labor Code Private Attorneys General Act of 2004 

(PAGA) deputizes individual employees to step into the shoes of 

our state’s labor enforcement agency and sue their employers for 

underpaid wages and additional, statutorily prescribed amounts 

on behalf of themselves and their aggrieved coworkers. (Lab. 

Code, § 2698 et seq.)1 In Iskanian v. CLS Transportation Los 

Angeles, LLC (2014) 59 Cal.4th 348, 382-392 (Iskanian), our 

Supreme Court held that individual employees cannot

contractually agree to arbitrate their potential PAGA claims, but 

may still contractually agree to arbitrate their “individual 

damages claims.” If an employee brings a solitary PAGA claim, 

may a trial court split that claim—that is, may the court send the 

employee to arbitration (when he has agreed to it) to recover his 

underpaid wages but retain jurisdiction to award the additional, 

statutorily prescribed amounts? Our sister courts are divided on 

the issue: Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228 

(Esparza) has sanctioned such an order, while Lawson v. ZB, 

N.A. (2017) 18 Cal.App.5th 705 (Lawson) has not. Although this 

issue is pending before our Supreme Court in Lawson (Lawson,

review granted Mar. 21, 2018, S246711), we analyze the issue 

differently than Esparza or Lawson but ultimately conclude that 

courts may not split a solitary PAGA claim and send it to two 

different fora. Accordingly, we affirm the trial court’s order 

denying the motion to compel arbitration in this case.

1 All further statutory references are to the Labor Code 

unless otherwise indicated.

2

 
FACTS AND PROCEDURAL BACKGROUND

I. Facts

Arthur Zakaryan (plaintiff) started working as a store 

manager for defendants, The Men’s Wearhouse and Tailored 

Brands, Inc. (collectively, The Men’s Wearhouse) in November 

2002. As its homophonic name suggests, the Men’s Wearhouse 

sells men’s clothing and accoutrement. Due to work performance 

issues, The Men’s Wearhouse in early 2016 gave plaintiff the 

option of accepting a demotion out of management or resigning. 

Plaintiff opted to resign, and did so in February 2016. 

By the time of his resignation, plaintiff had signed or by his 

conduct agreed to two different arbitration agreements with The 

Men’s Wearhouse—one in 2006 and a second in 2015. Under the 

terms of the 2006 agreement, plaintiff agreed to arbitrate “any 

and all claims, disputes and controversies . . . includ[ing] . . . any 

[c]laim arising from [his] employment . . . or its termination,” but 

that agreement expressly excluded “collective” or “representative 

action[s].” Under the terms of the 2015 agreement, plaintiff 

agreed to arbitrate “all claims or controversies . . . whether or not 

arising out of [his] employment (or its termination)” and to 

“waive any right to bring” “any class, collective, or representative 

action,” but that agreement expressly excluded any PAGA claims 

“otherwise covered by this Agreement.” 

II. Procedural Background

In January 2017, plaintiff sued The Men’s Wearhouse. 

“[O]n behalf of all aggrieved employees currently and formerly 

employed” as The “Men’s Wearhouse store managers,” plaintiff 

alleged a “representative action” under PAGA on the ground that 

The Men’s Wearhouse had wrongly misclassified managers as 

exempt from California’s laws regarding overtime pay and meal 

3
and rest breaks. This underpayment also rendered the 

managers’ wage statements inaccurate and entitled those who 

had quit or been fired to “waiting time penalties” under section 

203. Plaintiff prayed for “unpaid and underpaid wages of all 

aggrieved employees,” the additional penalties incorporated into 

PAGA from more specific Labor Code provisions, prejudgment 

interest, attorney fees and “further and other injunctive and 

equitable relief.” 

After Esparza was decided, The Men’s Wearhouse filed a 

motion to compel arbitration of the portion of plaintiff’s PAGA 

claim seeking reimbursement of underpaid wages. The motion to 

compel was filed nearly six months after The Men’s Wearhouse 

had answered plaintiff’s complaint without raising arbitration as 

a defense. 

Following full briefing and a hearing, the trial court denied 

the motion to compel. The court found Lawson more persuasive 

than Esparza, and in so doing rejected the notion that plaintiff’s 

PAGA claim could be split in order to send the underpaid wages 

portion to arbitration. 

The Men’s Wearhouse filed this timely appeal. 

DISCUSSION

The Men’s Wearhouse challenges the trial court’s refusal to 

order arbitration of the portion of plaintiff’s PAGA claim that 

seeks to recover his underpaid wages. As noted above, the 

California courts currently disagree about a trial court’s 

authority to order a portion of a PAGA claim to arbitration: One 

case says this is permissible (Esparza, supra, 13 Cal.App.5th at 

p. 1234), while most others have said it is not (Lawson, supra, 18 

Cal.App.5th at p. 712; Williams v. Superior Court (2015) 237 

Cal.App.4th 642, 649 (Williams v. Superior Court); Betancourt v. 

4
Prudential Overall Supply (2017) 9 Cal.App.5th 439, 448; 

Tanguilig v. Bloomingdale’s, Inc. (2016) 5 Cal.App.5th 665, 677-

678 (Tanguilig); Perez v. U-Haul Co. of California (2016) 3 

Cal.App.5th 408, 420-421 (Perez)).2 Because the arbitrability of a 

portion of a PAGA claim presents a legal question that lies at the 

intersection of California labor law and arbitration law, our 

review is de novo. (Julian v. Glenair, Inc. (2017) 17 Cal.App.5th 

853, 864 (Julian) [where denial of a motion to compel “relies on a 

determination of law,” review is “de novo”].) We start with a brief 

overview of these two areas of law, then apply them to the 

question before us.

I. Pertinent Background Law

A. California labor law

1. Substantive protections

California labor law grants employees two protections 

relevant to this appeal. 

The law prohibits employers from requiring their 

employees to work more than eight hours in a day, 40 hours in a 

week or six days in a row at their regular hourly rate of pay (the 

overtime rules). (§ 510, subd. (a).) These rules do not apply to

(and therefore exempt) “executive, administrative, and 

professional employees.” (§ 515, subd. (a).) If an employer does 

not comply with the overtime rules applicable to a non-exempt 

employee, that employee is entitled to premium pay of 1.5 times 

his regular hourly pay, and to twice his regular hourly pay if 

2 The federal courts interpreting California law are no less 

divided. (Compare Mandviwala v. Five Star Quality Care, Inc.

(9th Cir. 2018) 723 F. App’x. 415, 417-418 [PAGA claim may be 

split] with Whitworth v. SolarCity Corp. (N.D. Cal. 2018) 336 F. 

Supp. 3d 1119, 1124-1126 [PAGA claim may not be split].) 

5

 
required to work more than 12 hours in a day or more than eight 

hours on the seventh day in a row. (§ 510, subd. (a).) What is 

more, the employer’s failure to compensate the employee at the 

statutory premium pay rate means that the employee’s pay 

checks are inaccurate and, if the employee quits or is fired, may 

mean that he was willfully not paid the full amount of his unpaid 

wages when he departed, each of which constitutes a separate 

Labor Code violation with its own additional penalty. (§§ 226, 

subds. (a)(1), (a)(2), (a)(5) & (a)(9), 203; see Maldonado v. Epsilon 

Plastics, Inc. (2018) 22 Cal.App.5th 1308, 1331-1332 [willful 

failure to pay overtime premiums violates law requiring timely 

payment of full wages to departing employee].)

The law also requires that employers afford their 

employees meal and rest periods during any shift longer than five 

hours (for meal periods) and three and one-half hours (for rest 

periods) (the meal and rest period rules). (§§ 226.7, subd. (b), 

512, subd. (a); Cal. Code Regs., tit. 8, § 11070, subds. (11))(A) & 

(12)(A) [mercantile industry].) These rules also do not apply to 

“executive, administrative, and professional employees.” (§ 515, 

subd. (a); Cal. Code Regs., tit. 8, § 11070, subd. (1)(A).) If an 

employer does not comply with the meal and rest break rules 

applicable to non-exempt employees, an employee is entitled to 

an additional hour’s pay for each workday that a meal or rest 

period was not offered. (§ 226.7, subd. (c).) 

2. Enforcement mechanisms

a. Pre-PAGA mechanisms

Traditionally, the Labor Code provides several mechanisms 

for three different actors to enforce the above described labor 

laws. 

6
First, the aggrieved employee may seek judicial or 

administrative relief. In terms of judicial relief, the employee 

may “file[] an ordinary civil action against the employer” for (1) 

breach of contract (Reynolds v. Bement (2005) 36 Cal.4th 1075, 

1084 (Reynolds), abrogated on other grounds in Martinez v. 

Combs (2010) 49 Cal.4th 35), (2) restitution under the Unfair 

Competition Law (Bus. & Prof. Code, § 17200 et seq.) (Cortez v. 

Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 177-

178), or (3) violation of the Labor Code provision at issue if (and 

only if) the Code authorizes individual employees to bring a claim 

based on that provision (§§ 1194, subd. (a) [authorizing civil suit 

to recover “unpaid balance” of overtime premium pay], 218

[authorizing civil suit to recover pay for missed meal and rest 

periods and waiting time penalty]). No matter what the legal 

theory advanced, the employee’s recovery is limited to the 

damages owed, which includes the amounts of premium pay 

prescribed by statute but excludes any statutorily prescribed civil 

penalties over and above those amounts. (Murphy v. Kenneth 

Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1109-1113, 1115

(Murphy) [overtime payment and meal and rest break pay 

recoverable in civil suit]; Atempa v. Pedrazzani (2018) 27 

Cal.App.5th 809, 827 (Atempa) [relief in civil action limited to 

“‘“damages, reinstatement, and other appropriate relief but . . . 

not . . . civil penalties” [citation]’”], italics in original; Villacres v. 

ABM Industries Inc. (2010) 189 Cal.App.4th 562, 578 [same].) In 

terms of administrative relief, the employee may file a wage 

claim with, and to be adjudicated before, the Labor 

Commissioner. (§§ 98-98.8; Reynolds, at p. 1084.)

Second, the Labor Commissioner may initiate proceedings 

against the employer. (§§ 1193.6 [authorizing suit for “unpaid 

7
overtime compensation”], 1194.5 [authorizing suit for injunctive 

relief], 217 [authorizing suit to recover penalties].) For violation 

of the overtime and meal and rest period rules, section 558 

specifies what the commissioner may recover—namely, (1) 

underpaid wages, and (2) an additional $50 for the first violation 

against each employee for each pay period, and $100 for any 

subsequent violation against each employee for each pay period. 

(§ 558, subd. (a).) Any “[w]ages recovered” under section 558 go 

to the “affected employee” (§ 558, subd. (a)(3)); all the rest goes to 

the Labor and Workforce Development Agency (the agency) 

(§ 558, subd. (b); Iskanian, supra, 59 Cal.4th at p. 378). Only the 

Labor Commissioner may directly sue under section 558; 

individual employees may not. (Atempa, supra, 27 Cal.App.5th 

at p. 826, fn. 13 [“section 588 . . . do[es] not provide for a private 

right of action to recover the civil penalties authorized under 

[that] statute[]”]; Robles v. Agreserves, Inc. (E.D. Cal. 2016) 158 

F. Supp. 3d 952, 1006 [same].)

Third, the local prosecuting authority may prosecute the 

employer because the violations of some provisions of the Labor 

Code are designated as misdemeanors (e.g., §§ 215, 216, 218) or 

infractions (e.g., § 226, subd. (c)). 

b. PAGA

Recognizing that the enforcement authorities had 

insufficient incentive and resources to sue employers for Labor 

Code violations (Iskanian, supra, 59 Cal.4th at p. 379), our 

Legislature enacted PAGA in 2003 to create a fourth mechanism 

for enforcing California’s labor laws. As its full name suggests, 

PAGA establishes a default penalty for all Labor Code violations 

and, more significantly, declares individual, “aggrieved” 

employees to be “private attorney[] general[s]” acting “as the 

8
proxy or agent of the state’s labor law enforcement agencies” and, 

in that capacity—and only in that capacity—authorizes them to 

bring “civil action[s]” “on behalf of” themselves “and other current 

or former employees.” (§ 2699, subds. (a) & (f); Arias v. Superior 

Court (2009) 46 Cal.4th 969, 980, 986 (Arias); Amalgamated 

Transit Union, Local 1756, AFL-CIO v. Superior Court (2009) 46 

Cal.4th 993, 1003; see also Iskanian, at p. 382 [noting that a 

PAGA claim is “a type of qui tam action”].) 

Nearly every contour of a PAGA claim flows from the 

ineluctable premise that a PAGA action is “‘fundamentally a law 

enforcement action designed to protect the public and not to 

benefit private parties.’” (Arias, supra, 46 Cal.4th at p. 986.) The 

employee may not file his or her PAGA claim for particular labor 

law violations until first giving the agency the opportunity to 

investigate and file the claim itself (§§ 2699, subd. (a), 2699.3 

[setting forth procedures for notifying agency]; Williams v. 

Superior Court (2017) 3 Cal.5th 531, 545-546 (Williams)) and, if 

the agency elects not to get involved, the agency is nevertheless 

legally bound by the outcome of the employee-prosecuted PAGA 

claim (Arias, at pp. 985-986; Tanguilig, supra, 5 Cal.App.5th at p. 

671). Just as an action by the agency would be on behalf of all 

aggrieved employees, the individual PAGA plaintiff also 

represents all other aggrieved employees. (Julian, supra, 17 

Cal.App.5th at p. 866, fn. 6; Huff v. Securitas Security Services 

USA, Inc. (2018) 23 Cal.App.5th 745, 750-751 (Huff) [PAGA 

plaintiff has standing as long as any other employee is 

“aggrieved,” even if he himself was not injured by all alleged 

violations].) And PAGA splits the “civil penalties recovered” in a 

way that favors the agency: 75 percent goes to the agency (to use 

for enforcement, administration and education) and only 25 

9
percent goes to the “aggrieved employees.” (§ 2699, subds. (i) & 

(j).)

B. Arbitration law

Private parties, including employers and employees, may 

generally agree by contract to resolve their disputes through 

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

63, 67 [“arbitration is a matter of contract”].) Such contracts are 

enforceable as a matter of federal law under the Federal 

Arbitration Act (FAA). (9 U.S.C. § 2 [“A written provision in any 

. . . contract evidencing a transaction involving commerce to 

settle by arbitration a controversy thereafter arising out of such 

contract or transaction . . . or an agreement in writing to submit 

to arbitration an existing controversy arising out of such a 

contract . . . shall be valid, irrevocable, and enforceable, save 

upon such grounds as exist at law or in equity for the revocation 

of the contract.”]; AT&T Mobility LLC v. Concepcion (2011) 563 

U.S. 333, 344 [“The ‘principle purpose’ of the FAA is to ‘ensur[e] 

that private arbitration agreements are enforced according to 

their terms.’ [Citation.]”]; Epic Systems Corp. v. Lewis (2018) 138 

S.Ct. 1612, 1632 (Epic Systems) [“Congress has instructed that 

arbitration agreements [between private employers and 

employees] must be enforced as written.”].) 

In Iskanian, supra, 59 Cal.4th 348, our Supreme Court 

carved out an exception to this general rule when it held that an 

employee could not contractually agree to give up a potential 

PAGA claim against his or her employer. (Id. at pp. 378-392.) 

Iskanian first declared that such “PAGA waivers” were against 

public policy because (1) they constitute an indirect agreement to 

exempt the employer from violations of California’s labor laws, 

and (2) private parties cannot agree to waive a “‘law established 

10
for a public reason.’” (Id. at pp. 382-383.) Iskanian then 

determined that the FAA did not preempt its “no waiver” rule 

because the FAA is concerned with “ensur[ing] an efficient forum 

for the resolution of private disputes, whereas a PAGA [claim] is 

a dispute between an employer and the state Agency.” (Id. at p. 

384; see also id. at pp. 386-387; see also Correia v. NB Baker 

Electric, Inc. (Feb. 25, 2019, D073798) __ Cal.App.5th __ [19 

D.A.R. 1455, 1455] [Epic Systems did not overturn Iskanian, as 

only Iskanian deals with “a claim for civil penalties brought on 

behalf of the government . . .”], italics in original.) The court 

nevertheless recognized that an employee’s non-PAGA claims for 

“individual damages” were private disputes and thus, under the 

FAA, could be sent to arbitration if the employer and employee so 

agreed. (Iskanian, at p. 391.)

II. Analysis

The trial court’s denial of the motion to compel arbitration 

turns on whether an individual employee’s PAGA claim seeking 

remedies available to the agency under section 558 may be split 

into two claims based on the remedies sought—with the claim for 

underpaid wages under section 558 being shunted to arbitration 

while the claim for the further $50 and $100 per-pay-period 

penalties under section 558 remaining in court. We conclude that 

splitting a PAGA claim in this manner is both (1) legally 

impermissible and (2) inconsistent with labor and arbitration 

law.

A. Impermissible claim splitting

California follows the primary rights theory. This theory 

provides that “‘one injury gives rise to only one claim for relief’” 

(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798

(Boeken)), and accordingly prohibits a plaintiff from “‘divid[ing] a 

11
primary right and enforc[ing] it in two suits’” whether in a 

judicial or arbitral forum (Mycogen Corp. v. Monsanto Co. (2002) 

28 Cal.4th 888, 904; Mission Beverage Co. v. Pabst Brewing Co., 

LLC (2017) 15 Cal.App.5th 686, 708; Cal Sierra Development, 

Inc. v. George Reed, Inc. (2017) 14 Cal.App.5th 663, 677-678 (Cal 

Sierra)). A primary right is not defined by the legal theory 

asserted (Cal Sierra, at pp. 677-678) or the remedy sought 

(Crowley v. Katleman (1994) 8 Cal.4th 666, 681 (Crowley); HiDesert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 

734). Instead, a “primary right” is defined by “the plaintiff’s right 

to be free from the particular injury suffered.” (Crowley, at p. 

682.) As a general matter, “the same primary right” is at stake 

“[w]hen two actions involving the same parties seek 

compensation for the same harm.” (Boeken, at p. 798.) 

Splitting a PAGA claim into two claims—a claim for 

underpaid wages and a claim for the $50/$100 per-pay-period 

penalties PAGA incorporates from section 558—runs afoul of the 

primary rights doctrine because it impermissibly divides a single 

primary right. That is because an individual employee bringing a 

PAGA claim is vindicating one and only one “particular injury”—

namely, the injury to the public that the “state labor law 

enforcement agencies” were created to safeguard. (Arias, supra, 

46 Cal.4th at p. 986 [“In a lawsuit brought under [PAGA], the 

employee plaintiff represents the same legal right and interest as 

the state labor law enforcement agencies”]; Iskanian, supra, 59 

Cal.4th at pp. 380, 387 [same].) The individual PAGA plaintiff’s

“personal claim” for underpaid wages, our Supreme Court has 

noted, is “not at stake.” (Williams, supra, 3 Cal.5th at 547, fn. 4.) 

Indeed, this is why the individual PAGA plaintiff and the other 

aggrieved employees represented by that PAGA claim may still 

12
bring separate individual claims for underpaid wages and why 

any nonparty aggrieved employees are not bound by any adverse 

PAGA judgment when pursuing those individual claims. (§ 2699, 

subd. (g)(1) [“Nothing in [PAGA] shall operate to limit an 

employee’s right to pursue or recover other remedies available 

under state or federal law, either separately or concurrently with 

an action taken under this part.”]; Arias, at pp. 985-987 [for 

purposes of civil penalties, a PAGA judgment “is binding not only 

on the named employee plaintiff but also on government agencies 

and any aggrieved employee not a party to the proceeding,” but 

where the employer prevails, nonparty employees are not bound 

as to remedies other than civil penalties].) Because an individual 

PAGA plaintiff is at all times acting on behalf of the agency when 

seeking underpaid wages as well as the $50/$100 penalty, his 

pursuit of both remedies “involv[es] the same parties seek[ing] 

compensation for the same harm” and thus involves “the same 

primary right.” (Boeken, supra, 48 Cal.4th at p. 798; cf. Caliber 

Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 

377-384 [on demurrer, court may strike portions of PAGA claim 

seeking additional penalties over and above underpaid wages 

when the individual PAGA plaintiff has not first presented his 

PAGA claim to the agency].)

Contrary to what The Men’s Wearhouse argues, our 

conclusion is consistent with Broughton v. Cigna Healthplans

(1999) 21 Cal.4th 1066 (Broughton) and Cruz v. PacifiCare 

Health Systems, Inc. (2003) 30 Cal.4th 303 (Cruz). Broughton

held that an individual plaintiff’s claim under the Consumer 

Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.) could be 

split into two and shunted into two different fora—namely, his 

claim for damages sent to arbitration and his claim for injunctive 

13
relief to “enjoin[][the defendant’s allegedly] deceptive [methods, 

acts and] practices” to remain in court. (Boughton, at pp. 1079-

1084.) Following on Broughton’s heels, Cruz held that an 

individual plaintiff’s claim under the Unfair Competition Law 

(UCL) (Bus. & Prof. Code, § 17200 et seq.) could likewise be split 

into two and shunted into two different fora—namely, his claim 

for restitution to arbitration and his claim for injunctive relief to 

“‘enjoin[] [the defendant’s allegedly] wrongful acts and practices’” 

to remain in court. (Cruz, at pp. 308-309, 312-313, 315.) 

Broughton and Cruz sanctioned the claim splitting because the 

individual plaintiff’s CLRA and UCL claims, respectively, 

involved two primary rights—namely, the individual plaintiff’s 

right to be made whole (through damages or restitution) and the 

public’s right to be protected from deceptive or wrongful practices 

(through a “public injunction” sought by the individual plaintiff 

“act[ing] in the purest sense as a private attorney general”). 

(Cruz, at p. 312; Broughton, at pp. 1079-1080, 1084; see also 

McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 961 [“the public 

injunctive relief available under the UCL [and] the CLRA . . . is 

primarily ‘for the benefit of the general public’ . . . [and] ‘not to 

resolve a private dispute’”].) In other words, individual CLRA 

and UCL plaintiffs sometimes wear two hats while the employee 

who brings a solitary PAGA action always wears but one; the 

former may accordingly be split while the latter may not.

B. Inconsistency with labor and arbitration law

Even if the primary rights doctrine did not categorically bar 

a court from splitting a PAGA claim and sending the portion 

seeking underpaid wages to arbitration, such a procedure cannot 

be reconciled with labor law or arbitration law.

14
1. Labor law

There are three reasons why splitting an individual PAGA 

claim into a claim for underpaid wages and a claim for “civil 

penalties” cannot be squared with the labor law that PAGA is

designed to enforce.

First, PAGA awards the “aggrieved employee”-plaintiff a 

single, indivisible civil penalty that is to be split between the 

agency (which receives 75 percent) and the “aggrieved 

employee[s]” (who receive 25 percent). (§ 2699, subds. (a) & (i).) 

PAGA empowers the employee-plaintiff to “recover” the “civil 

penalty” that would otherwise “be assessed and collected by the” 

agency (§ 2699, subd. (i)), and section 558 defines what the “civil 

penalty” is for violations of the overtime and meal and rest period 

rules—namely, a per-pay-period penalty of $50 or $100 “in 

addition to an amount sufficient to recover underpaid wages” 

(§ 558, subds. (a)(1) & (a)(2)). (See Equilon Enterprises v. 

Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59 [“plain meaning of 

[a statute’s] actual words” controls].) PAGA then specifies that 

this singular penalty is to be allocated as follows: 75 percent of 

all “civil penalties recovered” (that is, 75 percent of both the 

underpaid wages and $50/$100 additional penalties together) to 

the agency, and the remaining 25 percent of those penalties to 

the “aggrieved employees.” (§ 2699, subd. (i).) (Atempa, supra, 

27 Cal.App.5th at pp. 828-829 [reaching same conclusion]; Moorer 

v. Noble L.A. Events, Inc. (Feb. 11, 2019, B282631) __ Cal.App.5th 

__ [19 D.A.R. 1665, 1667] (Moorer) [same]; accord, Iskanian, 59 

Cal.4th at pp. 360, 388 [consistent with 75 percent of entire 

penalty going to agency, remarking that “most of the proceeds of 

[PAGA] litigation” would be “going to the state” and would 

“largely go to state coffers”].) PAGA’s textually mandated 

15
allocation of a single “civil penalty” between the agency and 

aggrieved employees in a 75/25 percent split is inconsistent with 

splitting a PAGA claim along the very different fault line 

between underpaid wages and the additional per-pay-period 

penalty. 

The Men’s Wearhouse argues that there is no inconsistency 

because (i) section 558 supersedes PAGA’s 75/25 percent 

allocation rule, and (ii) section 558 creates two separate penalties 

(namely, an underpaid wages penalty and a per-pay-period 

penalty) rather than a single, indivisible penalty, and expressly 

provides that the underpaid wages penalty “shall” be allocated to 

“the affected employee[s]” (§ 558, subd. (a)(3)). We reject this 

argument because both of its premises are invalid. 

With regard to the first premise, PAGA’s allocation rule 

trumps section 558’s. This result is dictated by the rules of 

statutory construction. PAGA, as the later-enacted statute, 

supersedes section 558 unless section 558 is the more specific 

statute. (State Dept. of Public Health v. Superior Court (2015) 60 

Cal.4th 940, 960-961 (State Department); Stats. 2003, ch. 906, § 2, 

p. 6629, eff. Jan. 1, 2004 [PAGA]; Stats. 1999, ch. 134, § 14, pp. 

1826-1827 [section 558].) However, neither PAGA nor section 

558 is more specific than the other because each statute deals 

with its own distinct (and hence equally specific) subject: Section 

558 sets the default “civil penalty” for certain Labor Code 

violations and defines how to allocate the civil penalty recovered 

when the agency is the plaintiff, while PAGA authorizes 

aggrieved employees to bring suit as the agency’s proxy and 

defines how to allocate the “civil penalty” recovered when that 

employee is the plaintiff bringing a PAGA claim. This result is 

also dictated by the structure of PAGA. PAGA borrows the 

16
penalty amounts from the various Labor Code statutes that it 

empowers an individual employee to vindicate on behalf of the 

agency, but PAGA provides the overarching procedural rules that 

govern such employee-prosecuted claims. (Accord, Amalgamated 

Transit, supra, 46 Cal.4th at p. 1003 [characterizing PAGA as 

“simply a procedural statute”].) If, as The Men’s Warehouse 

implores, PAGA also incorporated the allocation rules from the 

various Labor Code statutes, a single PAGA claim could be 

governed by a patchwork of competing and conflicting allocation 

rules. We prefer PAGA’s streamlined pattern to the crazy quilt 

alternative. 

With regard to the second premise, and as we explain 

above, the text of section 558 defines a single “civil penalty.” (See 

also Thurman v. Bayshore Transit Management, Inc. (2012) 203 

Cal.App.4th 1112, 1145 (Thurman) [section 558’s “civil penalty 

. . . consists of both the $50 or $100 penalty amount and any 

underpaid wages”].) That section 558 refers to the per-pay-period 

penalties as being “in addition to” the underpaid wages does not 

create two separate remedies; instead, it defines two components 

of a singular “civil penalty” that is recoverable in a PAGA action. 

Nor, as The Men’s Warehouse urges, does the per-pay-period 

penalty somehow become a separate “penalty” distinct from 

underpaid wages because the per-pay-period penalty is a fixed 

amount or because it can be called a “civil penalty” rather than 

“statutory [damages]”; a single civil penalty can be made up of 

components that include fixed amounts (Murphy, supra, 40 

Cal.4th at pp. 1112-1113) and the semantics of assigning labels to 

the components of a statute’s penalty cannot trump the statute’s 

textual creation of a single penalty (Iskanian, supra, 59 Cal.4th 

at p. 388). 

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Second, a PAGA claim is, fundamentally, a representative 

claim. As noted above, the “aggrieved employee” who brings a 

PAGA claim is representing the agency and, while proceeding in 

the agency’s stead, is also representing all of the other aggrieved 

employees. (Julian, supra, 17 Cal.App.5th at p. 866, fn. 6; Huff, 

supra, 23 Cal.App.5th 745, 750-751.) PAGA allocates 25 percent 

of the civil penalties recovered to the “aggrieved employees” to 

give individual employees an incentive to sue on the agency’s 

behalf, not as a means of awarding “victim-specific relief.” 

(Whitworth, supra, 336 F. Supp. 3d at p. 1126; Iskanian, supra, 

59 Cal.4th at pp. 387-388.) Indeed, this distinction between “a 

PAGA litigant’s status as ‘the proxy or agent’ of the state” rather 

than as a private party “purs[uing] . . . victim-specific relief” is 

the very reason Iskanian cited for declaring PAGA claims exempt 

from arbitration. (Iskanian, at pp. 387-388; see also id. at p. 381 

[“The civil penalties recovered on behalf of the state under the 

PAGA are distinct from the statutory damages to which 

employees may be entitled in their individual capacities.”].) 

Breaking off the portion of a PAGA claim seeking underpaid 

wages on the ground that those wages constitute “victim-specific 

relief,” as The Men’s Wearhouse urges, ignores the representative 

nature of a PAGA claim as well as one of the cornerstone 

principles of Iskanian. 

Third, an aggrieved employee’s choice to bring a solitary 

PAGA claim is his choice to make. As noted above, an aggrieved 

employee desiring to pursue judicial (rather than administrative) 

relief for his employer’s violation of the overtime or meal and rest 

period rules has the option of (1) filing a lawsuit asserting a claim 

in his individual capacity (§§ 1194, 218) or (2) filing a lawsuit 

asserting a PAGA claim (§ 2699). If he chooses the former, the 

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employee gets to keep all of his awarded underpaid wages, but 

the claim is subject to arbitration if he has so agreed. (§§ 1194, 

218; Iskanian, supra, 59 Cal.4th at p. 391.) If he chooses the 

latter, the employee gets to recover underpaid wages and per-pay 

period penalties for himself and his fellow employees in court 

(rather than arbitration), but he is required to give 75 percent of 

the total recovery to the agency and to split the remaining 25 

percent with his fellow employees. (§§ 2699, subds. (a) & (i); 

Iskanian, at pp. 378-392; Moorer, supra, __ Cal.App.5th __ [19 

D.A.R. 1665, 1667].) Each has its pros and cons, but the choice of 

which to pursue is ultimately the employee’s call. (Iskanian, at p. 

383 [“employees are free to choose whether or not to bring PAGA 

actions when they are aware of Labor Code violations.”]; id. at p. 

387 [same].) Where, as here, the employee-plaintiff elected to file 

a solitary PAGA claim,3 splitting that claim into two effectively 

rewrites his complaint into one asserting an individual claim for 

underpaid wages (which is shunted to arbitration) and a PAGA 

claim (which is not). This makes the employee’s choice 

meaningless.

2. Arbitration law

Splitting an individual PAGA claim into a claim for 

underpaid wages and a claim for “civil penalties” also cannot be 

squared with the law governing arbitration. Iskanian held that 

3 Although plaintiff initially alleged his entitlement to “all 

underpaid wages recovered” under PAGA, that allegation does 

not bear on his election to pursue a solitary PAGA claim because 

he elected not to plead a separate claim for individual damages, 

because his legally incorrect allegation is a nullity (Fundin v. 

Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955), and 

because he retracted that allegation in his appellate brief. 

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arbitration of a PAGA claim is “contrary to public policy” and 

that contracts purporting to mandate arbitration of PAGA claims 

are “unenforceable as a matter of . . . law.” (Iskanian, supra, 59 

Cal.4th at pp. 360, 382-384.) Splitting a PAGA claim and 

requiring the employee to arbitrate his entitlement to underpaid 

wages, likely while the remainder of his PAGA claim is stayed 

pending the arbitration (Civ. Proc. Code, § 1281.4 [mandating 

stay “until an arbitration is had” when a portion of a lawsuit is 

sent to arbitration]), eviscerates Iskanian’s mandate because it 

sends the chief issue underlying a PAGA claim—that is, whether 

the employer violated labor law (thereby entitling the employee 

to underpaid wages)—to arbitration. It also offends Iskanian’s 

reasons for barring arbitration because it effectively allows the 

employee, by contract, to bind the agency to arbitration. 

(Iskanian, at pp. 382-383.) Not surprisingly, other decisions have 

refused to sanction the arbitration of the “individual” aspects of a 

PAGA claim while leaving the “representative” aspects in court. 

(E.g., Perez, supra, 3 Cal.App.5th at pp. 420-421 [“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 PAGA”]; Williams

v. Superior Court, supra, 237 Cal.App.4th at pp. 644-646 [same].) 

We join those decisions.

C. Esparza and Lawson

Our resolution of the question presented in this case puts 

us at odds with Esparza and, to a lesser extent, with Lawson. 

Esparza held that a PAGA claim may be split and the portion 

seeking underpaid wages sent to arbitration because, in 

Esparza’s words, the portion seeking underpaid wage “retain[s] 

[its] private nature.” (Esparza, supra, 13 Cal.App.5th at p. 1246.) 

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As explained above, we reject the notion that any portion of a 

PAGA claim is “private” because “the real party in interest” for a 

PAGA claim is at all times “the government entity on whose 

behalf the [employee-]plaintiff files suit.” (Iskanian, supra, 59 

Cal.4th at p. 382.) Also, as explained above, we reject Esparza’s 

subsidiary holding that section 558’s requirement that “all . . . 

underpaid wages . . . go to the aggrieved employee” applies in a 

solitary PAGA claim on the ground that section 558 is more 

specific than PAGA. (Esparza, at p. 1243, fn. 4.) Lawson held 

that a PAGA claim may not be split in order to send the portion 

seeking underpaid wages to arbitration, but agreed with 

Esparza’s subsidiary holding that the individual PAGA plaintiff 

(and, presumably, his coworkers) are entitled to 100 percent of 

the underpaid wages. (Lawson, supra, 18 Cal.App.5th at pp. 721, 

724-725.) We agree with Lawson’s central holding but disagree 

with its subsidiary holding regarding the allocation of the “civil 

penalties” recovered. 

* * * * * *

In light of our conclusion that the trial court properly 

denied the motion to compel arbitration, we have no occasion to 

reach plaintiff’s proffered alternative grounds for affirmance—

namely, that the 2015 arbitration agreement did not require 

arbitration of PAGA claims, that the 2006 arbitration agreement 

applied, and that The Men’s Wearhouse waived the right to seek 

arbitration by not filing its motion until Esparza was decided.

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DISPOSITION

The order is affirmed. Plaintiff is entitled to his costs on 

appeal.

CERTIFIED FOR PUBLICATION.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P.J.

ASHMANN-GERST

_________________________, J.

CHAVEZ

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