Filed 10/23/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
STEVEN CASTILLO,
F090527
Plaintiff and Respondent,
(Super. Ct. No. CV-25-001186)
v.
BELKORP AG, LLP,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Stanislaus County. John R.
Mayne, Judge.
Fisher & Phillips, Alden J. Parker, Yuri Khadka and Erin J. Price for Defendant
and Appellant.
Justice Law Corporation, Douglas Han, Christoper K. Petersen and Michael W.
Jones for Plaintiff and Respondent.
-ooOoo-
This is an employment-related dispute between defendant/appellant Belkorp AG,
LLC (Belkorp) and plaintiff/respondent Stephen Castillo. Former employee Castillo
brought purely nonindividual claims under Labor Code section 2698 et seq.,1 the Private
Attorneys General Act (PAGA), against Belkorp. Belkorp filed a motion to compel
arbitration, which the trial court denied. In this appeal, Belkorp contends the court erred
by: (1) failing to adjudicate the merits of its motion to compel arbitration; (2) concluding
that Castillo could maintain a PAGA action alleging only nonindividual PAGA claims;
and (3) failing to order the parties to arbitration. We affirm.
BACKGROUND
From May 2021, to his termination in late January 2024, Castillo worked for
Belkorp as a service technician. According to Belkorp’s Director of Human Resources,
in late December 2020, Castillo completed onboarding documents. Included within the
onboarding documents was an arbitration agreement that provided: “Any dispute or
controversy arising out of or relating to the employment, or termination of employment,
of [Castillo] by [Belkorp], … shall be resolved by binding arbitration.” As to class
actions or collective actions, the arbitration agreement specifically provided: “[Castillo]
and [Belkorp] agree to bring any claim or dispute in arbitration on an individual basis
only, and not as a class or collective action; [Castillo] and [Belkorp] waive any right for a
dispute or claim to be brought, heard, or decided as a class or collective action, and the
arbitrator has no power or authority to preside over a class or collective action (‘[c]lass
[a]ction [w]aiver’).” The arbitration agreement did not provide for any exceptions to the
class action waiver. However, the arbitration agreement did provide that, if the class
action waiver was found to be unenforceable, then the arbitrator would be “without
authority to preside over a class or collective action and any class or collective action
[would have to] be brought in a court of competent jurisdiction.”
In November 2024, pursuant to section 2699.3, Castillo provided written notice to
the Labor and Workforce Development Agency (LWDA) of Labor Code violations by
1 All further statutory references are to the Labor Code unless otherwise noted.
2.
Belkorp. The LWDA did not respond to Castillo’s notice within the 65-day statutory
waiting period of section 2699.3, subdivision (a)(2)(A). As a result, Castillo became
authorized to pursue civil penalties under PAGA as the proxy or agent of the LWDA.
(§ 2699.3, subd. (a)(2)(A).)
In February 2025, Castillo filed a complaint for civil penalties against Belkorp in
the Stanislaus County Superior Court. The complaint contained a single cause of action
under PAGA based on various violations of the Labor Code. The complaint expressly
stated that Castillo brought the action “as an exclusively representative action on behalf
of other current and former aggrieved employees of [Belkorp] for penalties .…” The
complaint further emphasized that Castillo sought “only to prosecute his non-individual
PAGA claims and does not seek to prosecute any individual PAGA claims against
[Belkorp].” The complaint sought penalties “on behalf of current and former aggrieved
employees of [Belkorp] and exclusively as a proxy of the State of California,” along with
attorney fees and costs.
In July 2025, Belkorp filed a motion to compel arbitration.
On September 5, 2025, the trial court conducted a hearing and issued a ruling that
denied the motion to compel. The court noted some procedural irregularities with respect
to Belkorp’s motion, including a breach of the duty of candor based on Belkorp’s failure
to advise that Leeper v. Shipt, Inc. (2024) 107 Cal.App.5th 1001, review granted
April 16, 2025, S289305 (Leeper) had been under review since April 16, 2025. On the
merits of the motion, the court explained:
“Review has been granted in Leeper and Rodriguez v. Packers
Sanitation Services LTD (2025) 109 Cal.App.5th 69, but CRST Expedited,
Inc. v. Superior Court of Fresno County (2025) 112 Cal.App.5th 872 has
taken the opposite side of the Leeper decision. The California Supreme
Court in its order under [California Rules of Court, rule] 8.1115(e)(3) has
permitted trial courts to use Leeper to show a split of authority.
“Thus, the Court must weigh the logic of both cases. [Belkorp]
declined to address CRST in its initial filing or its reply. This decision not
to cite to controlling authority and not to address it appears to this Court to
be a concession on the merits.”
3.
In September 2025, Belkorp appealed the denial of its motion to compel.
DISCUSSION
I. A PAGA ACTION WITH ONLY NONINDIVIDUAL PAGA CLAIMS
A. Parties’ Arguments
1. Belkorp
Belkorp contends the trial court erred by permitting Castillo to pursue only
nonindividual PAGA claims for several reasons. First, Belkorp argues that Castillo’s
complaint of necessity includes an individual PAGA claim that is brought on his own
behalf because PAGA requires an aggrieved employee to bring a claim on his own behalf
and on behalf of other employees. Belkorp argues that, as explained in Leeper, the
common meaning of “and” as conjunctive, when combined with the Legislature’s
decision to use the term and instead of or, means that an employee only has standing to
bring a PAGA action that consists both of individual and nonindividual PAGA claims.
Second, Belkorp argues that permitting Castillo to pursue only PAGA claims on
behalf of other employees is contrary to Viking River Cruises, Inc. v. Moriana (2022) 596
U.S. 639 (Viking River) and Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104
(Adolph). Belkorp argues that these decisions envision and mandate that a PAGA action
will be divided between individual and nonindividual PAGA claims, with the individual
PAGA claims going to arbitration and the nonindividual PAGA claims remaining in
court.
Third, Belkorp points out that the Legislature amended PAGA effective July 1,
2024 (the July amendments), yet failed to include amendments that expressly permit a
PAGA action consisting only of nonindividual PAGA claims. Belkorp argues this means
that the Legislature did not intend to alter Viking River and Adolph and thus, intended for
all PAGA actions to include individual and nonindividual PAGA claims.
Finally, Belkorp acknowledges that CRST Expedited, Inc. v. Superior Court
(2025) 112 Cal.App.5th 872, review granted September 17, 2025, S292005 (CRST) and
Galarsa v. Dolgen California, LLC (2025) 115 Cal.App.5th 1, review granted
4.
December 17, 2025, S293545 (Galarsa) have held that a plaintiff may bring a PAGA
action consisting only of nonindividual PAGA claims. However, Belkorp argues that
these cases are procedurally and factually different from this case and were expressly
limited to the pre-July 1, 2024 version of PAGA, whereas this case is governed by the
version of PAGA that became effective on July 1, 2024. Belkorp also notes that the
July amendments require a plaintiff to have experienced each Labor Code violation
alleged. Belkorp argues this change requires an aggrieved employee to pursue a PAGA
action that consists of individual and nonindividual PAGA claims based on Labor Code
violations that were personally experienced, which is consistent with Viking River and
Adolph.
2. Castillo
Castillo contends the trial court correctly permitted him to pursue only
nonindividual PAGA claims. In part,2 Castillo argues that our court in CRST and
Galarsa explained the term and was ambiguous and should be construed as an inclusive
disjunctive that means either and or or. Castillo argues that CRST and Galarsa have
already considered and rejected most of Belkorp’s arguments, including its reliance on
Leeper, and that CRST and Galarsa should continue to be followed. Castillo also argues
that any factual differences that exist between this case and CRST and Galarsa are
2 Castillo also argues that Belkorp waived and is estopped through the doctrine of invited
error from making any challenge to the trial court’s adoption of CRST because Belkorp did not
address CRST in either its motion to compel arbitration or its reply. We disagree. First, an
“error is invited when a party purposefully induces the commission of [the] error,” and “requires
some form of active advocacy for the decision now claimed as error on appeal.” (Khoiny v.
Dignity Health (2022) 76 Cal.App.5th 390, 419.) Here, there was no active advocacy or
purposeful inducement by Belkorp for the trial court to follow CRST; there was simply reliance
on Leeper and a failure to address CRST. Second, courts often find a concession by a party’s
failure to respond to an opponent’s argument. (E.g., Ross v. Superior Court (2022) 77
Cal.App.5th 667, 681.) However, this is not an inexorable rule, and courts retain discretion to
consider the “conceding” party’s new arguments. (People v. Hill (1992) 3 Cal.4th 959, 995, fn.
3; Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505.) Here, by relying on
Leeper during the motion to compel, Belkorp was implicitly urging the court to follow Leeper
and to reject CRST. Because Leeper and CRST are irreconcilable, and Belkorp continues to rely
on Leeper in this appeal, we will not find waiver or a concession for purposes of this appeal.
(Hill, at p. 995, fn. 3; Griffin, at p. 505.)
5.
immaterial, and the July amendments do not affect these cases’ conclusion that an
aggrieved employee who has been duly authorized as the LWDA’s representative may
bring “a PAGA action that asserts only nonindividual PAGA claims.” (CRST, supra, 112
Cal.App.5th at p. 913, review granted.) Such actions are sometimes referred to as
“ ‘headless’ PAGA actions.” (Galarsa, supra, 115 Cal.App.5th at p. 4, review granted.)
B. Legal Standard
1. Statutory Interpretation
In construing a statute, courts must ascertain the intent of the Legislature in order
to effectuate the statute’s purpose. (Shear Development Co., LLC v. California Coastal
Com. (2026) 19 Cal.5th 334, 366; Turrieta v. Lyft, Inc. (2024) 16 Cal.5th 664, 687.)
Courts first examine the statutory language, but consider the entire substance of the
statutory scheme without considering particular language in isolation. (Shear
Development, at p. 366; Turrieta, at p. 687.) If the language is clear and unambiguous,
then courts generally must follow the language’s plain meaning. (Shear Development, at
p. 366; Turrieta, at p. 687.) However, if the statutory language is ambiguous, meaning
that the language supports more than one reasonable construction, then courts may
consider other extrinsic aids, such as the statute’s purpose, legislative history, and public
policy. (Shear Development, at p. 366; Turrieta, at p. 687.) Appellate courts review
questions of statutory interpretation de novo (Adolph, supra, 14 Cal.5th at p. 1120).
2. PAGA
PAGA was enacted to remedy “ ‘systemic underenforcement’ ” of the Labor
Code. (Estrada v. Royalty Carpet Mills, Inc. (2024) 15 Cal.5th 582, 598.) In order to
achieve maximum compliance with the Labor Code, PAGA provides that civil penalties,
which would otherwise be recovered only by the LWDA, “may, as an alternative, be
recovered through a civil action brought by an aggrieved employee on behalf of the
employee and other current and former employees against whom a violation of the same
provision was committed .…” (§ 2699, subd. (a) (section 2699(a)); Stone v. Alameda
Health System (2024) 16 Cal.5th 1040, 1078, fn. 22; see also Adolph, supra, 14 Cal.5th at
6.
p. 1122 [“ ‘The Legislature’s sole purpose in enacting PAGA was “to augment the
limited enforcement capability of the [LWDA] by empowering employees to enforce the
Labor Code as representatives of the [LWDA]” ’ ”].) PAGA defines an “aggrieved
employee” as “any person who was employed by the alleged violator and personally
suffered each of the violations alleged during the [one-year limitations period set by Code
of Civil Procedure section 340.]” (§ 2699, subd. (c)(1) (section 2699(c)(1)); Prime
Healthcare Management, Inc. v. Superior Court (2025) 117 Cal.App.5th 127, 138 (Prime
Healthcare.) In seeking civil penalties through PAGA, the aggrieved employee “acts
‘ “ ‘as the proxy or agent’ ” ’ of the state.” (Adolph, at p. 1116; Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 81 (Kim).) Therefore, a PAGA action
is a law enforcement action between the state/LWDA and the defendant employer, with
the plaintiff aggrieved employee acting on behalf of the LWDA. (See Adolph, at p. 1117;
Kim, at p. 86.)
Because PAGA is intended primarily to benefit the general public, the recovered
civil penalties are dedicated largely to public use, to remediate present violations, and to
deter future violations; the penalties are not intended to compensate or redress the
aggrieved employee’s individual injuries. (Adolph, supra, 14 Cal.5th at p. 1116; Kim,
supra, 9 Cal.5th at p. 86.) By statute, 65 percent of the PAGA civil penalties recovered
goes to the LWDA and the remaining 35 percent goes to the aggrieved employees.
(§ 2699, subd. (m); see Stone v. Alameda Health System, supra, 16 Cal.5th at p. 1076,
fn. 19.) PAGA plaintiffs also may obtain injunctive relief against their employers.
(§ 2699, subd. (e)(1).) Questions regarding the interpretation of PAGA are reviewed
de novo. (Adolph, at p. 1120; Galarsa, supra, 115 Cal.App.5th at p. 8, review granted.)
Since PAGA is a remedial statute meant to protect employees, its provisions are to
be broadly construed in favor of this protection. (Kim, supra, 9 Cal.5th at p. 83; see also
Adolph, supra, 14 Cal.5th at p. 1122.) Consistent with a broad construction, wage and
hour related laws are not to be construed within the “ ‘ “ ‘narrow limits of the letter of the
7.
law, but rather are to be given liberal effect to promote the general object sought to be
accomplished.’ ” ’ ” (CRST, supra, 112 Cal.App.5th at p. 901, review granted.)
3. Arbitration of PAGA Claims
In the context of the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), the
United States Supreme Court has found that a PAGA action contains two components, an
“individual claim,” which is based on Labor Code violations that were personally
experienced by the plaintiff, and “representative claims”3 or “nonindividual claims,”
which are based on Labor Code violations that were experienced by other current and
former employees. (Viking River, supra, 596 U.S. at pp. 648–649; Adolph, supra, 14
Cal.5th at pp. 1117–1118.) An arbitration agreement’s predispute categorical waiver of
the right to bring a PAGA action is unenforceable. (Viking River, at pp. 659–663;
Adolph, at p. 1117; Santana v. Studebaker Health Care Center, LLC (2026) 120
Cal.App.5th 1, 15–16 (Santana).) Further, narrow waivers in arbitration agreements that
require employees to arbitrate individual PAGA claims and relinquish their ability to
bring nonindividual PAGA claims also are unenforceable. (Viking River, at pp. 662–663;
Adolph, at pp. 1117–1118; Santana, at p. 16.) However, the FAA permits arbitration
agreements to divide a PAGA action into individual PAGA claims and nonindividual
PAGA claims and to then arbitrate the individual PAGA claims.4 (Viking River, at
p. 662; Adolph, at pp. 1118–1119; Santana, at p. 16.) If a plaintiff files “a PAGA action
comprised of individual and non-individual claims,” and there is a valid arbitration
agreement that encompasses the individual PAGA claims, then the individual PAGA
3 A PAGA action is also “representative” in the sense that a PAGA plaintiff acts as the
proxy or agent of the state/LWDA. (Viking River, supra, 596 U.S. at p. 648; ZB, N.A. v.
Superior Court (2019) 8 Cal.5th 175, 185.)
4 Prior to Viking River, California courts relied on Iskanian v. CLS Transportation Los
Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) to prohibit employers from requiring employees
to “ ‘split’ PAGA actions in a manner that puts individual and non-individual components of a
PAGA claim into bifurcated proceedings.” (Adolph, supra, 14 Cal.5th at p. 1118.) However,
Viking River held that “the FAA preempts [this aspect] of Iskanian insofar as it precludes
division of PAGA actions into individual and non-individual claims through an agreement to
arbitrate.” (Viking River, supra, 596 U.S. at p. 662; Adolph, at p. 1118.)
8.
claims are to be ordered to arbitration and the nonindividual PAGA claims are to remain
in court. (Adolph, at pp. 1123, 1126.)
C. Analysis5
The issue here is whether an aggrieved employee may bring a PAGA action that
consists only of nonindividual PAGA claims, or instead must the action consist of both
individual and nonindividual PAGA claims. There is a split of authority on this issue
under the version of PAGA in effect before the July amendments. Divisions One and
Five of the Second District have concluded that a PAGA plaintiff must bring a PAGA
action that consists of both individual and nonindividual PAGA claims. (Williams v.
Alacrity Solutions Group, LLC (2025) 110 Cal.App.5th 932, 937, review granted July 9,
2025, S291199; Leeper, supra, 107 Cal.App.5th at p. 1009, review granted.) Our court
and Division Six of the Second District have reached the opposite conclusion and
determined that an aggrieved employee may bring a PAGA action that consists only of
nonindividual PAGA claims. (Galarsa, supra, 115 Cal.App.5th at p. 4, review granted;
CRST, supra, 112 Cal.App.5th at p. 883, review granted; Balderas v. Fresh Start
Harvesting, Inc. (2024) 101 Cal.App.5th 533, 536 (Balderas).) Because we detect no
reason to depart from CRST, we conclude that an aggrieved employee may bring a PAGA
action that consists only of nonindividual PAGA claims under the post-July 1, 2024
version of PAGA.
5 Castillo argues this appeal may be resolved through application of Rodriguez v. Packers
Sanitation Services LTD., LLC (2025) 109 Cal.App.5th 69, review granted May 14, 2025,
S290182 (Rodriguez), which held that a motion to compel arbitration is properly denied when a
complaint alleges only nonindividual PAGA claims. (Id., at pp. 72, 75, 80.) Rodriguez held that
to the extent a PAGA action must contain both individual and nonindividual claims, which was a
question that Rodriguez did not actually resolve, then the proper procedure would be to challenge
the sufficiency of the pleading through a demurrer. (Id. at pp. 78, 80–81.) We agree that
Rodriguez is on point and would justify affirming the trial court’s denial of the motion to
compel. (See id. at p. 80.) However, we read the court’s order as showing that it considered
both Leeper and CRST and adopted CRST. If we were to follow Rodriguez, we would ultimately
be sending the matter back to the court to reconsider Leeper and CRST in a different defense
motion, even though the trial court already did so and even though the issue of whether to follow
Leeper or CRST has been fully briefed in this appeal. Given the nature of the court’s order, the
state of the briefing on appeal, and the significance of the issue posed, we will not rely on
Rodriguez to fully resolve this appeal.
9.
1. CRST Decision
CRST thoroughly analyzed the pre-July 1, 2024 version of section 2699(a) and
determined that an aggrieved employee may bring an action that consists only of
nonindividual PAGA claims. (CRST, supra, 112 Cal.App.5th at pp. 883, 917, review
granted.) CRST summarized the issues and its rationale as follows:
“The parties’ arguments on whether headless PAGA actions are
allowed focus on the meaning of the phrase ‘on behalf of himself or herself
and other current or former employees’ in a sentence that uses the
permissive verb ‘may.’ (§ 2699, former subd. (a), italics added.) We
recognize that and usually, but not always, is interpreted as a conjunctive
that means ‘also’ or ‘ “ ‘ “an additional thing.” ’ ” ’ (People v. Reynoza
(2024) 15 Cal.5th 982, 990.) In exceptional situations, however, it is
sometimes ‘ “fair and rational” ’ to construe and disjunctively. (Ibid.) We
conclude PAGA is not an ordinary statute, the problems it attempts to
remedy are unusual, and Viking River drastically altered the legal landscape
in which PAGA is applied. These exceptional circumstances and the
PAGA’s underlying purpose support the following legal conclusions. First,
the and in former [section 2699(a)] is ambiguous. Second, PAGA’s
purpose of encouraging enforcement of California’s labor laws is best
served by interpreting the ambiguous and liberally to include both and and
or. Thus, the subdivision permitted the employee, as a representative of the
[LWDA], to bring a PAGA action seeking the recovery of civil penalties
(1) for the Labor Code violations suffered only by the employee, (2) for the
Labor Code violations suffered only by other employees, or (3) both. In
short, headless PAGA actions were among the choices allowed the
LWDA’s representatives.” (CRST, supra, 112 Cal.App.5th at p. 883,
review granted.)
CRST proceeded to explain its rationale and analysis in greater detail. With
respect to ambiguity, CRST noted that Viking River dramatically changed how a PAGA
action was viewed. (CRST, supra, 112 Cal.App.5th at p. 907, review granted.) Whereas
it had been understood that PAGA actions could not be divided between individual and
nonindividual claims and then decided in separate forums, Viking River held that the
FAA compelled such a division when a predispute arbitration agreement applied to the
claims. (CRST, at p. 907.) CRST also found a statement in Iskanian v. CLS
Transportation Los Angeles, LLC, supra, 9 Cal.4th 348 to be significant, although it was
dicta. (CRST, at p. 908.) “As Justice Chin correctly observes, ‘every PAGA action,
10.
whether seeking penalties for Labor Code violations as to only one aggrieved
employee—the plaintiff bringing the action—or as to other employees as well, is a
representative action on behalf of the state.’ ” (Iskanian, at p. 387.) This statement,
combined with section 2699(a)’s use of the permissive word may led CRST to conclude
that there were at least two reasonable interpretations of and as used by section 2699(a):
(1) an aggrieved employee could choose to bring either no PAGA action or a PAGA
action that consists of both an individual claim and nonindividual claims; or (2) an
aggrieved employee could choose to bring either no PAGA action, a PAGA action that
consisted only of an individual PAGA claim, a PAGA action that consisted only of
nonindividual PAGA claims, or a PAGA action that consisted of both individual and
nonindividual PAGA claims. (CRST, at pp. 908–909.)
CRST also noted that there was an ambiguity grammatically speaking. (CRST,
supra, 112 Cal.App.5th at pp. 910–911, review granted.) CRST explained that if a parent
permitted a child to have a snack of cookies and ice cream, and the child ate only
cookies, then linguistically there would be no violation of the permission given because
the greater permission to have both cookies and ice cream included the lesser permission
to have either. (Id. at p. 911.) This grammatical point was also consistent with California
law, which recognizes “ ‘[t]he greater contains the less.’ ” (Ibid., quoting Civ. Code,
§ 3536.) Because these considerations demonstrated that more than one reasonable
interpretation was possible, CRST determined that section 2699(a)’s use of the word and
was ambiguous. (CRST, at p. 911; Civ. Code, § 3536.)
To resolve the ambiguity, CRST examined legislative intent. First, CRST found
the legislative history surrounding the word and in section 2699(a) was inconclusive.
While there was a technical amendment by the author that changed or to and, there was
no explanation of how this change was intended to affect the meaning of section 2699(a).
(CRST, supra, 112 Cal.App.5th at p. 912, review granted.) Second, CRST noted the
general legislative purpose of promoting Labor Code enforcement and remedying
systemic underenforcement of worker protections, including penalizing and deterring
11.
Labor Code violations. (CRST, at pp. 913–916; see also Adolph, supra, 14 Cal.5th at
p. 1122 [noting that the “ ‘sole purpose’ ” of PAGA was to augment the LWDA’s ability
to enforce the Labor Code].) Any hurdles that undermine these objectives were to be
avoided. (CRST, at p. 914; see also Adolph, at pp. 1122–1123.). Third, CRST determined
that applying arbitration agreements to individual PAGA claims as required by Viking
River would result in “bifurcated proceedings across two forums” and constitute “a
hurdle in the sense that they slow down the prosecution of the nonindividual PAGA
claims, which nearly always will address more violations and result in more civil
penalties than the individual PAGA claims.” (CRST, at p. 916.) Specifically, case law
suggested that a two-year delay was caused by arbitrating individual PAGA claims first
while the nonindividual PAGA claims were stayed in court. (Id. at pp. 915–916.)
CRST also noted that empirical studies suggested that arbitrators were more likely
than a court to find a PAGA plaintiff was not “an aggrieved employee,” and thus, unable
to recover. (CRST, supra, 112 Cal.App.5th at p. 916, review granted.) Requiring a
PAGA plaintiff to pursue both individual and nonindividual PAGA claims would likely
result in “slower and less favorable outcomes [and] would undercut the incentives created
by PAGA,” and thus, result in fewer PAGA actions being filed. (Id. at pp. 916–917.)
In light of these considerations, CRST resolved the ambiguity within PAGA by
concluding that “the interpretation of PAGA that best promotes ‘effective code
enforcement’ [citation] and provides the more ‘effective disincentive for employers to
engage in unlawful and anticompetitive business practices’ [citation] allows PAGA
plaintiffs and their counsel the flexibility to choose among bringing a PAGA action that
seeks to recover of civil penalties on (1) the LWDA’s individual PAGA claims, (2) the
LWDA’s nonindividual PAGA claims, or (3) both.” (CRST, supra, 112 Cal.App.5th at
p. 917, review granted.)
Even though CRST analyzed a version of section 2699(a) that has since been
amended and does not therefore apply to this case, we are satisfied that CRST’s rationale
should be followed in this case. CRST’s approach correctly recognizes the importance of
12.
the word and within current section 2699(a). In most cases, the word and will have a
conjunctive meaning. However, since 1865, our Supreme Court has recognized that and
may fairly and rationally be interpreted disjunctively to also mean or. (People v. Pool
(1865) 27 Cal. 572, 581; see also People v. Reynoza, supra, 15 Cal.5th at p. 986; CRST,
supra, 112 Cal.App.5th at p. 904, review granted.) While interpreting and to have a
disjunctive meaning is clearly not the norm and is to be done only in exceptional cases
(Reynoza, at p. 991; CRST, at p. 904), CRST persuasively explains why those exceptional
circumstances exist in this case.
PAGA is a unique statute that deputizes employees to act as enforcement agents
for the LWDA. (Adolph, supra, 14 Cal.5th at p. 1116; CRST, supra, 112 Cal.App.5th at
pp. 895, 906, 913, review granted.) Importantly, Viking River dramatically changed the
legal landscape concerning PAGA and overturned eight years of settled California law
under Iskanian when it permitted employers through arbitration clauses to require an
employee to litigate individual and nonindividual PAGA claims in different forums. (See
Adolph, at pp. 1117–1118; Santana, supra, 120 Cal.App.5th at pp. 15–16; CRST, at
p. 907.) Some results of this forced division are a significant delay in resolving
nonindividual PAGA claims and an apparent increased risk of negative results for
individual PAGA claims in arbitration, which would have a corresponding negative effect
on the nonindividual claims in court. (CRST, at pp. 916–917.) In light of Viking River,
we conclude the interpretation and construction of PAGA that best furthers the objective
of effective Labor Code enforcement is the interpretation that permits an aggrieved
employee to bring a PAGA action that consists only of nonindividual PAGA claims.
(CRST, at pp. 883, 917; see also Adolph, at pp. 1122–1123 [eschewing an interpretation
of PAGA that would impede and undermine employee enforcement of PAGA and
accepting the interpretation that furthered PAGA’s purpose].) This is achieved by
interpreting the ambiguous term and in current section 2699(a) to have a disjunctive
meaning that includes or. (CRST, at pp. 883, 894–895, 917; see also Adolph, at p. 1123;
Balderas, supra, 101 Cal.App.5th at pp. 537–539.)
13.
2. Belkorp’s Arguments Do Not Undermine CRST
As outlined above, Belkorp argues that we should decline to follow CRST in this
case for a number of reasons. We are not convinced by Belkorp’s arguments.
a. The Leeper Decision
Prior to CRST, Leeper examined the nature of a PAGA action and
section 2699(a)’s use of the word and. (Leeper, supra, 107 Cal.App.5th at pp. 1009–
1010, review granted.) Leeper noted the word and is ordinarily used in a conjunctive
sense to unify and connect multiple items. (Id. at p. 1009.) Because the word and
separates individual claims from nonindividual claims in the statutory text, Leeper
reasoned that section 2699(a) meant that an aggrieved employee’s PAGA action must
necessarily consist of both individual claims and nonindividual claims. (Leeper, at
p. 1009.) Leeper also concluded that legislative history supported this conclusion.
Leeper explained that the Senate bill initially used the term or instead of and. (Id. at
p. 1010.) However, the bill’s author made an “ ‘author’s technical amendment’ ” and
replaced or with and in order to “ ‘clarify the intent of the bill and correct drafting
errors.’ ” (Ibid.) Because section 2699(a) was ultimately passed with and instead of or,
Leeper concluded that the Legislature clearly intended for a PAGA action to consist of
both individual and nonindividual PAGA claims. (Leeper, at p. 1010.) As noted above,
Leeper has been followed by Williams. Nevertheless, for the reasons explained below,
we decline to follow Leeper.6
First, we are not satisfied that the legislative history is as clear as Leeper
concluded. As noted above, CRST examined the same legislative history and found it to
be inconclusive. Specifically, CRST explained:
“Unfortunately, the analysis did not explain how the change affected
the provision’s meaning. For example, it did not state the author intended
the substitution of and for or to implement an all-or-nothing approach with
respect to the pursuit of civil penalties in a PAGA action. Conversely, it
6 Since Williams’s analysis is essentially the same as the analysis of Leeper (Williams v.
Alacrity Solutions Group, LLC, supra, 110 Cal.App.5th at pp. 942–943, review granted), we also
reject Williams’s analysis. (Galarsa, supra, 115 Cal.App.5th at pp. 10–15, review granted.)
14.
did not state the substitution was made to clarify the breadth of the
permission given so it would correspond with the permission given in our
example of a parent allowing a child to have a snack of cookies and ice
cream. In short, the reference to correcting a drafting error does not inform
us whether the author intended to require potential PAGA plaintiffs to
make the following choice: pursue PAGA claims for violations suffered by
both the plaintiff and other employees or, alternatively, forgo all PAGA
claims. Thus, notwithstanding the correction of a drafting error, the inquiry
into the author’s original intent in 2003 does not provide an unequivocal
answer.” (CRST, supra, 112 Cal.App.5th at p. 912, review granted.)
Galarsa recently reiterated CRST’s analysis and expressly rejected Leeper.
(Galarsa, supra, 115 Cal.App.5th at pp. 12–13, review granted.) Galarsa more pointedly
noted that, without an explanation of how “the text containing and would be applied in
the manner intended by the author,” the “statement that the Legislature accepted the
change of or to and without opposition begs, rather than answers, the question of what
the author or the Legislature intended by the change.” (Ibid.) We agree with CRST and
Galarsa’s critique of Leeper’s analysis of PAGA’s legislative history.
Second, Leeper’s statutory analysis has significant omissions. As explained in
Galarsa, Leeper did not recognize that our Supreme Court and various secondary sources
have acknowledged that and can be interpreted disjunctively to also mean or in
extraordinary cases. (Galarsa, supra, 115 Cal.App.5th at pp. 13–14, review granted.)
Instead, Leeper simply noted that and has a conjunctive meaning. Leeper also did not
acknowledge our Supreme Court’s directive regarding interpretations of the Labor Code.
(Galarsa, at pp. 10–11.) Specifically, Leeper did not acknowledge that wage, hour, and
working condition laws are to be liberally construed to promote worker protection and
that such laws should “ ‘ “ ‘not [be] construed within narrow limits of the letter of the
law, but rather are to be given liberal effect to promote the general object sought to be
accomplished.’ ” [Citations.]’ ” (Galarsa, at p. 11.) Instead, Leeper overemphasized the
“ ‘ “ ‘letter of the law’ ” ’ ” by focusing on the usual conjunctive meaning of and in
reaching its conclusions. (Galarsa, at p. 11, italics omitted.)
Finally, Galarsa noted that, unlike CRST, Leeper did not explain how its
interpretation, “when applied to the current legal landscape, creates incentives that have
15.
the practical effect of maximizing the enforcement of labor laws.” (Galarsa, supra, 115
Cal.App.5th at p. 14, review granted; see also Adolph, supra, 14 Cal.5th at pp. 1122–
1123 [“An interpretation of [PAGA] that impedes an employee’s ability to prosecute his
or her employer’s violations committed against other employees would undermine
PAGA’s purpose of augmenting enforcement of the Labor Code.”].) These omissions are
significant and undercut Leeper’s analysis of section 2699(a).7
b. Standing
Belkorp argues that Castillo does not have standing to pursue only nonindividual
PAGA claims. Belkorp is incorrect.8
First, Belkorp’s argument is based on a conjunctive interpretation of the word and
in section 2699(a). However, as explained above, it is appropriate to interpret and as
used in section 2699(a) to have an inclusive disjunctive meaning that includes or.
Second, our Supreme Court has held that the requirements for PAGA standing are
found in section 2699(c)(1), which defines the term “aggrieved employee.” (Adolph,
supra, 14 Cal.5th at p. 1120; Kim, supra, 9 Cal.5th at pp. 83–84.) An “aggrieved
employee” is “any person who was employed by the alleged violator and personally
suffered each of the violations alleged during the [one-year limitations period of Code of
Civil Procure section 340].” (§ 2699(c)(1); Prime Healthcare, supra, 117 Cal.App.5th at
p. 138.) Therefore, under section 2699(c)(1), a PAGA plaintiff has standing as an
aggrieved employee if the plaintiff: (1) was employed by the defendant employer; and
(2) personally suffered each alleged violation within the one-year limitations period.
7 Belkorp notes some factual and procedural differences between this case and CRST and
Galarsa. However, those differences are immaterial. Whether an aggrieved employee may
bring only nonindividual PAGA claims is determined by interpreting the language of section
2699; it is not determined by the procedural or factual posture of this case.
8 To the extent Belkorp is arguing the allegations in the complaint are insufficient to
demonstrate Castillo personally does not having standing, that is a pleading defect. The proper
procedural mechanism to raise such a pleading defect is a demurrer, not a motion to compel
arbitration. (City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1594.) Because we
are reviewing the denial of a motion to compel, we express no opinion regarding the pleading
adequacy of Castillo’s complaint.
16.
(§ 2699(c)(1); accord, Adolph, at p. 1120 [discussing two requirements for standing under
former section 2699, subdivision (c)].)
As can be seen, although an aggrieved employee must have suffered each alleged
Labor Code violation, there is no requirement that the aggrieved employee must also seek
to recover penalties for the Labor Code violations that were personally experienced. In
other words, the key to standing is having personally experienced all alleged Labor Code
violations within the one-year period. (§ 2699(c)(1); see also Adolph, supra, 14 Cal.5th
at pp. 1120, 1126; Kim, supra, 9 Cal.5th at pp. 84–85.)
Adolph concluded that settlements of individual Labor Code claims that occurred
after the filing of a PAGA complaint, as in Kim, and a plaintiff’s inability to pursue
individual Labor Code claims because such claims were barred by the statute of
limitations, as in Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924,
did not affect the ability of such plaintiffs to pursue PAGA actions. 9 (Adolph, supra, 14
Cal.5th at pp. 1120–1121.) This was because “a worker becomes an ‘aggrieved
employee’ with standing to litigate claims on behalf of fellow employees upon sustaining
a Labor Code violation committed by his or her employer.” (Id. at p. 1121.)
As applied to arbitration and splitting individual PAGA claims from nonindividual
PAGA claims, Adolph determined that “[a]rbitrating a PAGA plaintiff’s individual claim
does not nullify the fact of the violation or extinguish the plaintiff’s status as an
9 The Legislature has abrogated Johnson through the July amendments. (Osuna v.
Spectrum Security Services, Inc. (2025) 111 Cal.App.5th 516, 526, review granted July 30, 2025,
S291614.) Johnson permitted an employee to pursue PAGA claims even though she had
experienced the pertinent Labor Code violation three years prior to filing suit. (Johnson v.
Maxim Healthcare Services, Inc., supra, 66 Cal.App.5th at pp. 927, 930.) The July amendments
amended section 2699(c)(1) to provide that an aggrieved employee must have personally
experienced all alleged PAGA violations within a one-year limitations period. (Osuna, at p. 526;
§ 2699(c)(1).) But the amendment does not prescribe or define the type of PAGA claims
(individual, nonindividual, or both) that an aggrieved employee must pursue. Therefore, we do
not read this amendment to mean that an aggrieved employee must bring a PAGA action that
consists of both individual and nonindividual PAGA claims within a one-year period. Rather,
the amendment establishes a one-year limitations period that applies to any aggrieved employee,
irrespective of the type of PAGA action that the aggrieved employee may choose to bring. (§
2699(c)(1).)
17.
aggrieved employee, any more than the time-barring of remedies did in Johnson or the
settlement of the individual damages claims did in Kim.” (Adolph, supra, 14 Cal.5th at
p. 1121.) We think a similar observation can be made under current section 2699(c)(1) to
an aggrieved employee who voluntarily chooses to forgo pursuing an individual PAGA
claim. The fact that a PAGA plaintiff chooses not to attempt to recover PAGA penalties
for the Labor Code violations that he personally experienced does not mean that the
plaintiff did not personally experience the Labor Code violations alleged or somehow
extinguished his status as an aggrieved employee. (See Adolph, at p. 1121.) It simply
means he is attempting to recover the penalties for nonindividual PAGA claims, but not
the penalties for individual PAGA claims, on behalf of the LWDA. (Cf. Balderas, supra,
101 Cal.App.5th at p. 537 [“The inability for an employee to pursue an individual PAGA
claim does not prevent that employee from filing a representative PAGA action”].)
To accept Belkorp’s argument would be to read into the statute additional
requirements for standing, namely that the aggrieved employee must also seek to recover
penalties for personally experienced Labor Code violations as individual PAGA claims,
which we are forbidden from doing. (Adolph, supra, 14 Cal.5th at pp. 1120–1121, 1126–
1127; Kim, supra, 9 Cal.5th at pp. 84–85.) By adding an additional requirement that is
not found within the statute, Belkorp’s argument also has the effect of “imped[ing] an
employee’s ability to prosecute his or her employer’s violations committed against other
employees [and thus,] would undermine PAGA’s purpose of augmenting enforcement of
the Labor Code.” (Adolph, at pp. 1122–1123; see generally Code Civ. Proc., § 1858
[courts must not “insert what has been omitted” when construing a statute].) In contrast,
PAGA’s objectives are “furthered by extending broad standing to aggrieved employees
who do not depend on the viability or strength” of an individual PAGA claim. (Balderas,
supra, 101 Cal.App.5th at p. 537.) Accordingly, standing under section 2699(c)(1) to
pursue a PAGA action has nothing to do with whether the PAGA plaintiff is attempting
18.
to pursue his individual PAGA claims.10 (Adolph, at pp. 1120–1121, 1126–1127;
Balderas, at p. 537.)
Finally, Belkorp argues that untethering the individual PAGA claim component
from the nonindividual PAGA claim component of a PAGA action does not advance the
remedial purpose of PAGA and diminishes a plaintiff’s already modest personal stake in
the litigation. We disagree that permitting PAGA actions with only nonindividual PAGA
claims removes an aggrieved employee’s personal stake. As explained by CRST,
permitting nonindividual only PAGA claims results in less risk and quicker resolutions,
which are attractive results to an aggrieved employee. (CRST, supra, 112 Cal.App.5th at
pp. 915–916, review granted.) Further, Belkorp’s arguments overlook the fact that
PAGA actions are not intended to compensate or make whole any aggrieved employee.
(Adolph, supra, 14 Cal.5th at p. 1117; CRST, at p. 917.) Rather, PAGA claims are law
enforcement actions on behalf of the LWDA that collect penalties (with the LWDA
receiving 65 percent of the penalties) and deter future violations of the Labor Code.
(Adolph, at p. 1117; CRST, at p. 917.)
Further, our Supreme Court has rejected similar arguments and found that
obtaining attorney fees provides an incentive and a sufficient stake in the litigation.
(Adolph, supra, 14 Cal.5th at pp. 1126–1127.) To this, we would add that one of the new
provisions added by the July amendments made injunctive relief available to an
aggrieved employee. (§ 2699, subd. (e)(1).) The legislative history indicates that making
10 Belkorp argues that an aggrieved employee like Castillo who brings only nonindividual
PAGA claims makes a judicial admission that he personally suffered no PAGA violations.
Belkorp’s argument is meritless. A judicial admission, which may be made in a party’s pleading,
is “ ‘ “a party’s unequivocal concession of the truth of a matter.” ’ ” (Perez v. Galt Joint Union
Elementary School Dist. (2023) 96 Cal.App.5th 150, 171.) The absence of individual PAGA
claims in no way suggests, much less unequivocally concedes, that the aggrieved employee did
not personally suffer the alleged Labor Code violations. To the contrary, when a plaintiff like
Castillo brings only nonindividual PAGA claims as an “aggrieved employee,” he is necessarily
asserting that he personally suffered the same Labor Code violations that are alleged in the
complaint. The absence of an individual PAGA claim simply means that the plaintiff decided to
forgo his ability to obtain penalties for the violations he personally suffered. (Cf. CRST, supra,
112 Cal.App.5th at p. 883, review granted; Balderas, supra, 101 Cal.App.5th at p. 536.)
19.
such injunctive relief available was a prime objective of the July amendments and was
added to make PAGA more effective at preventing future Labor Code violations. (See
Sen. Com. on Labor, Public Employment and Retirement, Rep. on Assem. Bill No. 2288
(2023–2024 Reg. Sess.) as amended May 9, 2024, pp. 3, 6–7.) We think the assurance of
future Labor Code compliance that an injunction provides is a significant incentive and
personal stake for any aggrieved employee, irrespective of whether the aggrieved
employee chooses to pursue only nonindividual PAGA claims.
In sum, Belkorp has failed to show that PAGA’s standing requirements cannot be
met when a PAGA plaintiff brings only nonindividual claims.11
c. Viking River and Adolph
Belkorp argues that permitting an aggrieved employee to bring only nonindividual
PAGA claims would conflict with Viking River and Adolph. We agree that Viking River
applied FAA preemption and required all individual PAGA claims to be resolved through
arbitration. (Viking River, supra, 596 U.S. at p. 662.) Adolph confirmed as much and
also clarified that PAGA plaintiffs continue to have standing to pursue nonindividual
claims in state court. (Adolph, supra, 14 Cal.5th at pp. 1113–1114.) Adolph further
approved the procedure of staying nonindividual PAGA claims in court while individual
PAGA claims are resolved through arbitration. (Id. at pp. 1123–1124.) However, it is
11 At oral argument, Belkorp suggested without citation to authority that the arbitrator must
determine the standing of all PAGA plaintiffs, including those who seek to pursue only
nonindividual PAGA claims. We are not satisfied with Belkorp’s suggested procedure.
Belkorp’s procedure would require a nonindividual PAGA plaintiff to file a lawsuit, go to
arbitration to determine his standing, and, once that single issue has been determined, once again
return to court to litigate the merits of his cause of action. Such a procedure would create
barriers and delays that in no way further the purpose of PAGA. (See Adolph, supra, 14 Cal.5th
at pp. 1122–1123; CRST, supra, 112 Cal.App.5th at pp. 915–917, review granted.) Moreover,
such a procedure is at odds with Viking River and Adolph’s recognition that nonindividual PAGA
claims are not subject to arbitration. (See Viking River, supra, 596 U.S. at pp. 659–663; Adolph,
at pp. 1117–1119, 1123, 1126.) If nonindividual PAGA claims are truly not subject to
arbitration, and if those are the only PAGA claims being pursued, then all issues associated with
the nonindividual PAGA claims should be resolved by the trial court. (Cf. Adolph, at pp. 1117–
1119, 1123, 1126 [recognizing separate procedures for resolving individual PAGA claims and
nonindividual PAGA claims when a valid arbitration agreement exists].)
20.
unclear how permitting a PAGA plaintiff to pursue only nonindividual claims does
anything to undermine Viking River or Adolph.
If, as here, an aggrieved employee voluntarily chooses not to pursue a PAGA
individual claim, then there is no individual employment related dispute that exists
between the employer and the aggrieved employee. Rather, there are only nonindividual
PAGA claims that the plaintiff brings as the proxy of the LWDA (Adolph, supra, 14
Cal.5th at pp. 1116–1117), and both Viking River and Adolph recognize that such claims
are not subject to arbitration. (Viking River, supra, 596 U.S. at pp. 659–663; Adolph, at
pp. 1117–1119; see also Rodriguez, supra, 109 Cal.App.5th at pp. 73, 75–76, 80–81,
review granted.) Without any claims subject to arbitration, the FAA is not implicated.
As a result, neither Viking River’s concern regarding the FAA and arbitration of
individual PAGA claims (Viking River, at pp. 659–661), nor Adolph’s approved process
for arbitrating individual PAGA claims and trying nonindividual PAGA claims in court
(Adolph, at pp. 1123–1124), are implicated.
Moreover, neither Viking River nor Adolph discussed or considered whether a
PAGA action could consist of only nonindividual PAGA claims because that issue never
arose. The PAGA action pursued in both Viking River and Adolph consisted of
individual and nonindividual PAGA claims (Viking River, supra, 596 U.S. at pp. 647–
648; Adolph, supra, 14 Cal.5th at p. 1115), and the opinions do not suggest that any of
the parties addressed the possibility of PAGA actions that consist only of nonindividual
PAGA claims. Therefore, the opinions’ respective analyses were confined by the type of
PAGA action before them. Because the issue simply was not presented, it is difficult to
conclude that either Viking River or Adolph intended their holdings to foreclose an
aggrieved employee from pursuing only nonindividual PAGA claims. (See Geiser v.
Kuhns (2022) 13 Cal.5th 1238, 1252 [“ ‘ “ ‘cases are not authority for propositions not
considered’ ” ’ ”]; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [“an opinion is not
authority for a proposition not therein considered”].)
21.
Still, we believe one aspect of Adolph is noteworthy. Twice in the opinion,
Adolph stated that its holding applied “where a plaintiff has filed a PAGA action
comprised of individual and nonindividual claims.” (Adolph, supra, 14 Cal.5th at
pp. 1114, 1123.) If Leeper and Belkorp are correct that a PAGA action must necessarily
consist of both individual and nonindividual PAGA claims, then it is redundant to
describe a case in which a plaintiff brings a “PAGA action comprised of individual and
nonindividual claims.” (Adolph, at pp. 1114, 1123.) Instead, Adolph should have simply
described its holding as applying where “a plaintiff brings a PAGA action,” because all
PAGA actions necessarily include individual and nonindividual components. It is
doubtful that our Supreme Court would make two redundant statements regarding the
PAGA actions to which its holding was intended to apply. The fact that Adolph
described a particular type of PAGA action suggests that there are other types of PAGA
actions to which its holding does not apply. For instance, a PAGA action in which only
nonindividual PAGA claims are brought because such claims are not arbitrable. (Cf.
CRST, supra, 112 Cal.App.5th at p. 917, review granted [describing possible types of
PAGA actions that would be permitted by section 2699(a)].)
In sum, we are not convinced that permitting a duly authorized aggrieved
employee to pursue only nonindividual PAGA claims on behalf of the LWDA and other
employees is contrary to Viking River and Adolph.
d. July Amendments
Belkorp argues that CRST and Galarsa were decided before the July 1, 2024
PAGA amendments, which control in this case. Belkorp notes that the July amendments
did not include a provision that expressly permits only nonindividual PAGA claims, even
though such an amendment would have been possible following Viking River and
Adolph. Belkorp also notes that the July amendments narrowed the requirements for
standing by requiring a PAGA plaintiff to have personally experienced each alleged
Labor Code violation. We agree with these observations, but they do not change the
results of this appeal.
22.
i. Absence of Amendments
The failure of the Legislature to include provisions in the July amendments that
specifically addressed the ability of a PAGA plaintiff to bring only nonindividual PAGA
claims is not troubling for several reasons. First, the Legislature could have believed that
an express amendment was unnecessary because section 2699(a), through the inclusive
disjunctive understanding of and, already expressly provides for PAGA actions without
individual PAGA claims. As made clear by CRST, and later reiterated by Galarsa, the
circumstances surrounding PAGA and Viking River were sufficiently extraordinary that
construing and as having an inclusive disjunctive meaning is appropriate. (CRST, supra,
112 Cal.App.5th at pp. 883, 904–907, review granted; see also Galarsa, supra, 115
Cal.App.5th at pp. 9–15, review granted.)
Second, as explained above, Viking River and Adolph involved PAGA actions that
consisted of both individual and nonindividual PAGA claims. Neither Viking River nor
Adolph expressly addressed a PAGA action consisting only of nonindividual PAGA
claims. Without such a discussion, the Legislature may not have understood that the
ability of an aggrieved employee to bring only nonindividual PAGA claims was an open
question. We simply do not find significance in the fact that the Legislature failed to
legislatively address an issue that was not judicially addressed in Viking River and
Adolph.
Finally, prior to the July amendments, one published California case held that a
PAGA action could consist of only nonindividual PAGA claims. 12 After Viking River
and Adolph were decided, Balderas explained its holding as follows: “Here we hold that
an employee who does not bring an individual claim against her employer may
nevertheless bring a PAGA action for herself and other employees of the company. [¶]
… Balderas, an alleged aggrieved employee who was subject to alleged Labor Code
violations by Fresh Start, may bring a ‘non-individual’ or representative PAGA action on
12 Balderas was published on March 20, 2024, which is several months before the July
amendments.
23.
behalf of herself and other Fresh Start employees.” (Balderas, supra, 101 Cal.App.5th at
p. 536.) In part, Balderas explained: “The statutory goal [of PAGA] is furthered by
extending broad standing to aggrieved employees who do not depend on the viability or
strength of a plaintiff’s individual PAGA claim. The inability for an employee to pursue
an individual PAGA claim does not prevent that employee from filing a representative
PAGA action. California courts have consistently held that ‘ “[p]aring away the
plaintiff’s individual claims” ’ for one reason or another, ‘ “does not deprive the plaintiff
of standing to pursue representative claims under PAGA.” ’ ” (Balderas, at p. 537,
quoting Adolph, supra, 14 Cal.5th at p. 1122.)13
The Legislature is presumed to be aware of cases that construe a statute. (People
v. Landry (2016) 2 Cal.5th 52, 105; People v. Bouzas (1991) 53 Cal.3d 467, 475.) The
fact that the Legislature did not amend section 2699 as part of the July amendments to
expressly counteract Balderas, a case that postdated Viking River and Adolph,
presumably means that the Legislature agreed that aggrieved employees can bring only
nonindividual PAGA claims. (Landry, at p. 105; Bouzas, at p. 475.)
In sum, the absence of an amendment that expressly authorized only nonindividual
PAGA claims is not dispositive.
ii. Amendment of Section 2699(c)(1)
Prior to the July amendments, section 2699(c)(1) defined an “aggrieved
employee” as “any person who was employed by the alleged violator and against whom
one or more of the alleged violations was committed.” (Former § 2699(c)(1); Kim,
supra, 9 Cal.5th at p. 82.) As quoted above, after the July amendments,
section 2699(c)(1) now defines an “aggrieved employee” in relevant part as “any person
13 Leeper distinguished Balderas in part by stating the discussion of an aggrieved
employee’s ability to bring only nonindividual PAGA claims was dicta. (Leeper, supra, 107
Cal.App.5th at p. 1012, review granted.) However, the Fourth District has criticized this aspect
of Leeper. (Rodriguez, supra, 109 Cal.App.5th at p. 81, fn. 5, review granted.) Because
Balderas expressly stated that it held an aggrieved employee could bring a PAGA action without
an individual PAGA claim, Rodriguez concluded that Balderas’s analysis of nonindividual
PAGA claims was not dicta. (Rodriguez, at p. 81, fn. 5.) We agree with Rodriguez. (Rodriguez,
at p. 81, fn. 5.).
24.
who was employed by the alleged violator and personally suffered each of the violations
alleged during the [one-year limitations period of Code of Civil Procedure section 340.]”
(§ 2699(c)(1); Prime Healthcare, supra, 117 Cal.App.5th at p. 138.) Belkorp focuses on
the part of the amendment that deals with the number of Labor Code violations a PAGA
plaintiff must personally experience and argues that the amendment means a PAGA
action must necessarily include individual and nonindividual PAGA claims. However,
Belkorp does not adequately explain why the July amendments compel this conclusion.
Amended section 2699(c)(1) does not describe a PAGA action, does not discuss
any component parts that a PAGA action either may or must contain, and does not
attempt to require an aggrieved employee to pursue a particular type of PAGA claim
(individual, nonindividual, or both). In other words, the amended section does not define,
or clearly relate to the nature of, a PAGA action. Instead, the amendment mandates that
an aggrieved employee can only pursue PAGA relief for the Labor Code violations that
were personally experienced. As a result, we think the effect of the amendment is
twofold. First, and more directly, the amendment imposed a uniform standing
requirement by mandating that an aggrieved employee must have personally experienced
each of the alleged Labor Code violations, irrespective of the type of PAGA claim
asserted (individual, nonindividual, or both). Stated differently, the amendment clarified
that PAGA standing is the same no matter what type of PAGA claim an aggrieved
employee may choose to pursue. Second, it narrows the violations and penalties that may
be pursued. Instead of collecting penalties on behalf of the LWDA for violations that
were not personally experienced, penalties can now only be collected on behalf of the
LWDA for violations that were personally experienced.
By providing a uniform standing requirement for all types of PAGA claims, and
then limiting available relief in accordance with that uniform standing requirement, the
amendment more narrowly defines who an “aggrieved employee” is and ensures that
limited and meritorious Labor Code violations are pursued by those who actually
25.
experienced the alleged violations; but it does not determine which types of claims
(individual, nonindividual, or both) an aggrieved employee must pursue.
Neither of these effects undermine CRST, Viking River, or Adolph. With respect
to Viking River and Adolph, and assuming an applicable arbitration clause, if an
aggrieved employee brings a PAGA action consisting of both individual and
nonindividual claims for all Labor Code violations that were personally experienced, then
the individual claims will still be sent to arbitration and the nonindividual claims will still
be stayed in court pending completion of the arbitration. If a PAGA plaintiff brings a
PAGA action consisting only of nonindividual claims for Labor Code violations that
were personally experienced, then there are no individual PAGA claims that would be
subject to arbitration. In such a scenario, none of the concerns expressed in Viking River
regarding the FAA would be present, and there would be no claims decided in separate
forums as envisioned by Adolph.
In terms of CRST, the amendment identified by Belkorp did not relate to
section 2699(a) and thus, did not address the ambiguity of the term and.14 Moreover,
Belkorp fails to explain how interpreting the amendment to section 2699(c)(1) to mean
that an aggrieved employee must pursue both individual and nonindividual PAGA claims
14 We note that the July amendments did amend section 2699(a), but the amendment did not
address or alter the terms and or may. Instead, the amendment changed section 2699(a) to
provide that the penalties that would otherwise be recovered by the LWDA may “be recovered
through a civil action brought by an aggrieved employee on behalf of the employee and other
current or former employees against whom a violation of the same provision was committed ….”
(§ 2699(a), italics added.) This amendment is similar to the amendment of section 2699(c)(1).
Together, these amendments ensure that nonindividual PAGA claims are based on Labor
Code violations that were personally experienced by the aggrieved employee. If the aggrieved
employee did not personally experience a particular Labor Code violation, he cannot pursue a
PAGA penalty on behalf of other current and former employees for that particular Labor Code
violation. (See § 2699(a), (c)(1).) While the amendment to section 2699(a) puts a limit on the
breadth of nonindividual PAGA claims, it does not prescribe the type of claim (individual,
nonindividual, or both) that an aggrieved employee may or must pursue.
26.
furthers the goals of PAGA.15 As explained by CRST, interpreting and in a conjunctive
sense would mandate bifurcated proceedings, resulting in delays and statistically less
favorable results for an aggrieved employee in the face of an applicable arbitration
agreement. (See CRST, supra, 112 Cal.App.5th at pp. 915–918, review granted; see also
Balderas, supra, 101 Cal.App.5th at pp. 537, 539.) On the other hand, interpreting and in
an inclusive disjunctive manner permits a willing aggrieved employee to bring only
nonindividual PAGA claims, which results in statistically less risk, a quicker result,
penalties for the LWDA and other employees, and possible injunctive relief to help
prevent future Labor Code violations; these consequences all further PAGA’s goals.
(CRST, at pp. 915–918; see also Balderas, at pp. 537, 539.)
In sum, the amendment to section 2699(c)(1) speaks to qualifications of a person
to be an aggrieved employee, it does not speak to the types of claims (individual,
nonindividual, or both) that an aggrieved employee may or must make. Therefore, the
July amendment identified by Belkorp does not support its arguments or undermine
CRST.
15 Belkorp cites no legislative history with respect to the July amendments in general, or to
the amendment of section 2699(c)(1) in particular. Our own review of legislative history reveals
very little with respect to section 2699(c)(1). The California Chamber of Commerce was
initially against the July amendments and complained that PAGA, as then structured, improperly
permitted and incentivized attorneys to bring numerous claims without regard to merit. (See
Assem. Com. on Judiciary Rep. on Assem. Bill No. 2288 (2023–2024 Reg. Sess.) as amended
February 28, 2024, p. 7.) After negotiations, the Chamber of Commerce ultimately issued a
statement in support of the July amendments, including amendments relating to “standing.” As
to standing, the Chamber of Commerce noted that the amendments superseded Huff v. Securitas
Security Services USA, Inc. (2018) 23 Cal.App.5th 745. (See Sen. Com. on Judiciary Rep. on
Assem. Bill No. 2288 (2023–2024 Reg. Sess.) as amended June 21, 2024, pp. 12, 14-15.) In
relevant part, Huff held that a PAGA plaintiff only needed to have experienced one alleged Labor
Code violation to have standing and that, among other things, concerns regarding unmeritorious
claims and “fishing expedition[s]” to discover or pursue unexperienced Labor Code violations
were not sufficient to override the express language of section 2699(c). (Huff, at pp. 754, 761.)
The July amendments clearly abrogate this aspect of Huff. (Cf. id. at p. 761 [explaining that
concerns over “fishing expedition[s]” were best directed to the Legislature].) We believe the
Legislature’s abrogation of this aspect of Huff speaks to the qualifications of an aggrieved
employee to pursue a PAGA claim, it does not speak to the types of claims (individual,
nonindividual, or both) that an aggrieved employee may or must pursue.
27.
II. DENIAL OF BELKORP’S MOTION TO COMPEL ARBITRATION
A. Parties’ Arguments
Belkorp argues that the trial court erred by not considering the merits of its motion
to compel arbitration and by failing to grant the motion. Belkorp contends that by
permitting nonindividual PAGA claims to proceed outside of arbitration, the court
violated state and federal policy favoring arbitration by carving out an entire category of
representative actions from an otherwise valid arbitration agreement.
Castillo contends in part that the trial court did not err by denying arbitration.
Castillo argues the complaint contains only nonindividual PAGA claims and that such
claims are not subject to arbitration.
B. Legal Standard
Arbitration is a favored procedure under both federal and California law. (Marmet
Health Care Center, Inc. v. Brown (2012) 565 U.S. 530, 533; OTO, L.L.C. v. Kho (2019)
8 Cal.5th 111, 125.) However, arbitration is a matter of consent, not coercion, and parties
can only be compelled to arbitrate when they have agreed to do so. (Pinnacle Museum
Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236;
Kostandian v. American Honda Motor Co., Inc. (2026) 120 Cal.App.5th 872, 878.)
Therefore, before a court may order the parties to arbitration, the court must determine
the threshold questions of whether a valid arbitration agreement exists and, if so, whether
the parties’ dispute falls within the scope of that agreement. (Maxwell v. Atria
Management Co., LLC (2024) 105 Cal.App.5th 230, 241; see Fli-Lo Falcon, LLC v.
Amazon.com, Inc. (9th Cir. 2024) 97 F.4th 1190, 1194.) The party seeking to compel
arbitration bears the burden of establishing a valid agreement to arbitrate by a
preponderance of the evidence. (See Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 972; Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th 1178,
1195.) If an arbitration agreement is established, the party opposing arbitration bears the
burden of showing that the claims in the complaint are not within the scope of the
arbitration agreement. (Maxwell, at pp. 241–242; Howard v. Goldbloom (2018) 30
28.
Cal.App.5th 659, 663.) Appellate courts ordinarily “review a denial of a petition to
compel arbitration for substantial evidence or an abuse of discretion, but where the trial
court’s denial of a petition to arbitrate presents a pure question of law, including a
question of statutory interpretation,” the order is reviewed de novo. (Doe v. Second
Street Corp. (2024) 105 Cal.App.5th 552, 564; see also Watson v. Professional Business
Management Corp. (2026) 120 Cal.App.5th 860, 867–868.)
C. Analysis
The trial court did not err by denying Belkorp’s motion to compel arbitration. As
explained above, Castillo was permitted to bring only nonindividual PAGA claims.
(Galarsa, supra, 115 Cal.App.5th at p. 4, review granted; CRST, supra, 112 Cal.App.5th
at pp. 883, 917, review granted; Balderas, supra, 101 Cal.App.5th at p. 536.) These
claims are made as the proxy of the LWDA and on behalf of other current and former
workers. (§ 2699(a); Adolph, supra, 14 Cal.5th at p. 1116.) Contractual provisions,
including arbitration agreements, that attempt to effectuate a waiver of PAGA
nonindividual claims are unenforceable. (Adolph, at pp. 1117–1118; Santana, supra, 120
Cal.App.5th at p. 16; Rodriguez, supra, 109 Cal.App.5th at pp. 75–76, review granted.)
Because Castillo is pursuing a PAGA action that consists of only nonindividual PAGA
claims, Belkorp’s arbitration agreement and class or collective action waiver provision
cannot be enforced against him. (See Adolph, at pp. 1117–1118; Santana, at p. 16;
Rodriguez, at pp. 73, 75–76, 80–81.)
Belkorp’s argument, that an entire class of claims will now escape the grasp of
valid arbitration agreements in contravention of the FAA and public policy, is not
persuasive. Viking River and Adolph did not hold that nonindividual PAGA claims are
subject to arbitration through FAA preemption. To the contrary, Viking River and
Adolph, when read together, show that even though the FAA requires that individual and
nonindividual PAGA claims are to be split and resolved in separate forums, the
nonindividual PAGA claims remain in court and are not resolved in arbitration. (Viking
River, supra, 596 U.S. at pp. 662–663; Adolph, supra, 14 Cal.5th at pp. 1123–1124;
29.
Santana, supra, 120 Cal.App.5th at pp. 15–16.) In other words, the FAA does not
operate so as to require the arbitration of nonindividual PAGA claims, notwithstanding
policies that favor arbitration. (See Adolph, at pp. 1117–1118; Rodriguez, supra, 109
Cal.App.5th at pp. 73, 75–76, 80–81, review granted.) Because nonindividual PAGA
claims are not subject to arbitration, there can be no violation of the FAA or public policy
if an aggrieved employee pursues only nonindividual PAGA claims. (See Rodriguez, at
pp. 73, 75–76, 80–81; cf. Viking River, at pp. 662–663; Adolph, at pp. 1117–1118.)
DISPOSITION
The trial court’s denial of Belkorp’s motion to compel arbitration is affirmed.
Castillo is awarded his costs on appeal.
HARRELL, J.
WE CONCUR:
MEEHAN, Acting P. J.
GUERRA, J.
30.