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 Defendant s 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

un der paid wages and additional, statutoril y 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 ag ree 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 th e employee to arbitration (when he has agreed to it) to recover his

un der paid 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, S 246711 ), we analyze the issue
d ifferently 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.

2FACTS AND PR OCEDURAL BACKGROUND
I. Facts Arthur Zakaryan (plaintiff) started working as a store manager for defendants

, The Men’s W ear house and Tailored Brands, Inc. (collectively, The Men’s W ear house) in November
2002. As its homophonic name suggests, t he Men’s W earhouse sells men’s clothing and accoutrement

. Due to work performance issues, The Men’s W ear house in early 201 6 gave plaintiff the option of accepting a demotion out of management or resigning. Plaintiff opted to resign, and did so in February 201 6

. B y the time of his resignation, plaintiff had signed or by his conduct agreed to two different arbitration agreements with The
Men’s W ear house

— one in 2006 and a second in 2015

. Under the terms of the 2006 agreement, plaintiff agreed to arbitrate “any
and a ll 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, pl aintiff 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 a ny PAGA claims “otherwise covered by this Agreement

. ”
II. Procedural Background In January 2017, plaintiff sued The Men’s W ear house. “[O]n behalf of all aggrieved employees currently and formerly employed” as The “Men’s W ear house store managers,” plainti ff alleged a “representative action” under PAGA on the ground that
The Men’s W ear house ha d wrongly misclassified managers as exempt from California’s laws regarding overtime pay and meal

3and 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 s ection
203. Plaintiff prayed for “unpaid and underpaid wages of all aggrieved employees,” the additional penalties incorporated into
PAGA from more spec ific Labor Code provisions, prejudgment interest, attorney fees and “further and other injunctive and equitable relief.”
After Esparza was decided, The Men’s W ear house filed a motion to compel arbitration of the portion of plaintiff’s PAGA claim seeking reimbursement of underpaid wages. T he motion to compel was filed nearly six months after The Men’s W ear house had answered plaintiff’s complaint without raising arbitration as
a defense. Following full briefing and a hearing, the trial court denied
the m otion 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 un der paid wages portion to arbitration.
The Men’s W ear house filed this timely appea l.
DISCUSSION
The Men’s W ear house challenges the trial court’s refusal to order arbitration of the portion of plaintiff’s PAGA claim that
seeks to recover his un der paid 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.

4Prudential 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 (201 6 ) 3
Cal.A pp.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.5 th 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. Califo rnia 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 Ma n dviwala v. Five Star Qu ality 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].)

5required to work more than 12 hours in a day or more than eight
hours on the sevent h 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 willful ly 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. (201 8) 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 lon ger 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 em ployee 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 e nforce the above described labor
laws.

6First, the aggrieved employee may seek judicial or
administrative relief. In terms of judicial relief, t he 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 Fil tration 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 re cover “unpaid balance” of overtime premium pay], 21 8 [ 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, whic h 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 Production s , 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 C ommissioner may initiate proceedings against the employer. (§ § 1193.6 [authorizing suit for “unpaid

7overtime 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, s ection 558 specifi es what the c ommissioner 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

su bsequent violation against each employee for each pay period. (§ 558, subd. (a).) Any “[w]a ges recovered” under s ection 558 go to the “affected employee” ( § 558, subd. (a)(3)); all the re st goes to the Labor and Workforce Development Agency (the a gency) ( § 558, subd. (b); Iskanian

, supra , 59 Cal.4th at p. 378)

. Only the
Labor Commission er may directly sue under s ection 558; individual employee s 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 viola tions 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 penalt y for all Labor Code vi olations
and , more significantly, declares individual, “aggrieved” employees to be “private attorney [] general [ s ] ” acting “as the

8proxy 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 (200 9) 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 desig ned to protect the public and not to benefit private parties. ’ ” ( Arias

, supra, 46 Cal.4th at p. 986.) T he employee may not file his or her PAGA claim for particular labor
law violations until first giving the a gency the opportunity to investigate and fil e 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 a gency 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 a gency would be on behalf of all aggrieved employees, t he individual PAGA plaintiff also represents all other ag grieved 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 n ot injured by all alleged
violations ].) And PAGA splits the “civil penalties recovered” in a way that favors the a gency: 75 percent goes to the a gency (to use for enforcement, administration and education) and only 25

9percent goes to the “aggrieved emplo yees.” (§ 2699, subds. (i) & (j).)
B. Arbitration law
P rivate 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 [“arbitra tion 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 arbitr ation 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 g rounds 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 ter ms. ’ [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 34 8, 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 wai vers” 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 cann ot agree to waive a “ ‘ law established

10for 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 pe nalties 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 emp loyer and employee so agreed. ( I skanian

, 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 a gency under s ection 558 may be split
in to two claims based on the remedies sought

— with the claim for underpaid wages under s ection 558 being shunted to arbitration while the claim for the further $50 and $100 per

- pay

- period penalties under s ection 558 remaining in court. We conclude that split ting 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 right s 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

11primary 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 Beverag e 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 ); Hi

Desert Medical Center v. Douglas (2015) 239 Cal.App.4th 717, 734). Instead, a “primary right” is defined by “the p laintiff’s right to be free from the particular injury suffered

. ” ( Crowley , at p.
68 2

. ) As a general matter, “ t he 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 s ection 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 sa feguard

. ( 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 p p. 380 , 387 [same].) The individual PAGA plaintiff’s “personal clai m” 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

12bring separat e individual claims for underpaid wages and why

any nonparty aggrieved employees a re 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 purs ue or recover other remedies available under state or federal law, either separately or concurrently with an action taken under this part.”] ; Arias, at p p . 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 a gency 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 Body w orks, 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 plai ntiff has not first presented his
PAGA claim to the a gency].) Contrary to what The Men’s W ear house argues, our
conclusion is consistent with Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066 ( Broughton ) and Cruz v. PacifiCare Health Systems, Inc. (200 3) 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 arbitr ation and his claim for injunctive

13relief 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 u n der 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] wrong ful 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

— name ly, 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 sen se 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 s plit 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 proced ure cannot be reconciled with labor law or arbitration law.

141. 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

a gency (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”

a gency (§ 2699, subd. (i)), and s ection 558 defines what the “civil penalty” is for violations of the overtime and mea l 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 [“plai n 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 pena lties together) to
the a gency, and the remaining 25 percent of those penalties to the “aggrieved employees.” (§ 2699, subd. (i).) ( Atempa

, supra , 27 Cal.App.5th at p p. 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, 38 8 [consistent with 75 percent of entire penalty going to a gency, 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

15allocation of a single “civil penalty” between the a gency and aggrieved employees in a 75/25 percent split is inconsistent with splitting a PAGA claim along the very different fa ult line between underpaid wages and the additional per

- pay

- period penalty. The Men’s Wearhouse argues that there is no inconsistency
because (i) s ection 558 supersedes PAGA’s 75/25 percent allocation rule, and (ii) s ection 558 creates two separate pena lties (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 p remises are invalid. With regard to the first premise, PAGA’s allocation rule trumps s ection 558’s. This result is dictated by the rules of statutory construction. PAGA, as the later

- enacted statute, supersedes s ecti on 558 unless s ection 558 is the more specific statute. ( State Dept

. of Public Health v. Superior Court (201 5 ) 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

- 1 827 [ s ection 558] .) However, neither PAGA nor s ection 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
violation s and defines how to allocate the civil penalty recovered
when the a gency is the plaintiff, while PAGA authorizes aggrieved employees to bring suit as the a gency’s proxy and defines how to allocate the “civil penalty” recovered when that employee is the pl aintiff bringing a PAGA claim. This result is also dictated by the structure of PAGA. PAGA borrows the

16penalty amounts from the various Labor Code statutes that it empowers an individual employee to vindicate on behalf of the

a gency, but PAGA provides th e 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 T he Men’s Warehouse implores, PAGA also incorporated th e 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 s ection 558 defines a single “civil penalty.” (See
also Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1145 ( Thurman ) [ s ection 558’s “civil penalty
. . . consists of both the $50 or $100 penalty amount and any underpaid wages”].) That s ection 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 penalt y” that is recoverable in a PAGA action. Nor, as T he 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).

17Second, a PAGA claim is, fundamentally, a representative
claim. As noted above, the “aggrieved employee” who bring s a PAGA claim is representing th e a gency and, while proceeding in
the a gency’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 a gency’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 agen t ’ 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 port ion of a PAGA claim seeking underpaid wages on the ground that those wages constitute “victim

- specific relief,” as The Men’s W ear house urges, ignores the representative
nature of a PAGA claim as well as one of the cornerstone principles of Iskanian

. Thi rd, 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

pe riod 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

18employee 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 i n court (rather than arbitration), but he is required to give 75 percent of the total recovery to the a gency and to split the remaining 25 percent with his fellow employees. (§§ 2699, subds. (a) & (i);
Iskanian , at pp. 378

- 392 ; Moorer , supra , __ Cal.App.5 th __ [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

, a t p. 383 [“employees are free to choose whether or not to bring PAGA actions when they are aware of Labor Code vio lations.”]; 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 entitlemen t 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 ( F undin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955 ), and because he retracted that allegation in his appellate brief

.

19arbitration 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. 36 0, 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 a rbitration. It also offends Iskanian ’s reasons for barring arbitration because it effectively allows the employee, by contract, to bind the a gency to arbitration. ( Iskanian , at pp. 382

- 383.) Not surprisingly, o ther 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 a n 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 Law s on Our resolution of the que stion presented in this case puts
us at odds with Esparza and, to a lesser extent, with Law s on

. 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 underp aid wage “retain[s] [its] private nature.” ( Esparza

, supra , 13 Cal.App.5th at p. 1246.)

20As 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 gove rnment 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 s ection 558’s requirement that “all . . . underpaid wages . . . go to the a ggrieved employee” applies in a solitary PAGA claim on the ground that s ection 558 is more specific than PAGA. ( Esparza , at p. 1243
, fn. 4.) Law s on held that a PAGA claim may not be split in order to send the portion seeking underpaid wages to arbitratio n, 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. ( Law s on , supra , 18 Cal.App.5th at pp. 721,
724

- 725.) We agree with Law s on ’s central ho lding 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, w e have no occasion to reach plaint iff’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 W ear house waived the right to seek arbitration by not filing its motion until Esparza was decided.

21DISPOSITION
The order is affirmed. Plaintiff is entitled to his costs on appeal.
CERTIFIED FOR PUBLICATION

.

______________________, J. HOFFSTADT

We concur:

_________________________, Ac ting P. J. ASHMANN

- GERST

_________________________, J. CHAVEZ

22