Filed 8/13/26 Trivers v. Sherwood Management Co. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MAUREEN TRIVERS, B344138
Plaintiff and Respondent, (Los Angeles County Super.
Ct. No. 24STCV01643)
v.
SHERWOOD MANAGEMENT
COMPANY, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.
O’Melveny & Myers, Kelly S. Wood, Jason Zarrow, Lauren
Averill and Kelsey G. Fraser for Defendant and Appellant.
Haig B. Kazandjian Lawyers, Haig B. Kazandjian, Cathy
Gonzalez, and Joseph C. Rocha for Plaintiff and Respondent.
_________________________________
INTRODUCTION
When Sherwood Management Company, Inc. hired
Maureen Trivers, Sherwood required Trivers to sign a series of
documents that included an agreement to arbitrate disputes
arising out of the employment relationship. After Trivers’s
employment ended she filed this action, asserting a single cause
of action under the Labor Code Private Attorneys General Act of
2004 (PAGA; Lab. Code, § 2698 et seq.)1 and alleging Sherwood
committed a variety of wage-and-hour violations against her and
other employees. Sherwood filed a motion to compel arbitration
of Trivers’s individual PAGA claim (meaning the portion of the
cause of action based on the Labor Code violations against her).
The trial court ruled that, because Trivers sought penalties only
for the wage-and-hour violations suffered by other aggrieved
employees, her operative, first amended complaint did not
include an individual PAGA claim. The trial court denied the
motion to compel arbitration.
Sherwood appeals from the trial court’s order denying its
motion to compel arbitration, arguing the court erred in ruling
Trivers’s complaint did not include an individual PAGA claim.
Sherwood alternatively argues that, if Trivers’s complaint did not
include an individual PAGA claim, we should decide an issue
currently pending before the Supreme Court: whether a plaintiff
may assert a cause of action under PAGA without seeking
penalties for the Labor Code violations the plaintiff suffered.
(See Leeper v. Shipt, Inc. (2024) 107 Cal.App.5th 1001, review
granted Apr. 16, 2025, S289305.)
1 Undesignated statutory references are to the Labor Code.
2
We conclude the trial court did not err in ruling the
operative complaint did not include an individual PAGA claim.
When Trivers amended her complaint she removed her request to
recover penalties for Labor Code violations she suffered, which
left only claims for penalties for Labor Code violations suffered by
other current and former Sherwood employees. Regarding
Sherwood’s second argument, this appeal does not present the
question whether a plaintiff asserting a cause of action under
PAGA must always seek to recover penalties for the Labor Code
violations the plaintiff suffered. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sherwood employed Trivers for a little over two years.
When she started, Sherwood required her to sign a series of
documents that included an arbitration agreement. In the
arbitration agreement Sherwood and Trivers agreed to arbitrate,
as relevant here, “past, present, and future claims of employment
discrimination, harassment, retaliation, defamation (including
post-employment defamation or retaliation), breach of a contract
or covenant, fraud, negligence, violation of public policy,
emotional distress, breach of fiduciary duty, trade secrets, unfair
competition, wages, bonuses, commissions or other compensation
or monies claimed to be owed, vacation or sick pay, meal and rest
periods, wrongful termination, tort claims, equitable claims, and
all statutory and common law claims under state, local or federal
law . . . .” The arbitration agreement included a class action
waiver: “EXCEPT AS OTHERWISE REQUIRED BY
APPLICABLE LAW, CLAIMS MUST BE BROUGHT IN AN
INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR
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CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING, AND EACH THEREFORE,
EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW,
WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS OR
REPRESENTATIVE ACTION INVOLVING CLAIMS SUBJECT
TO ARBITRATION.”
After her employment ended Trivers sued Sherwood,
alleging a single cause of action under PAGA. Trivers alleged
Sherwood violated the Labor Code by failing to provide
employment records (§§ 226, 432, 1198.5), failing to pay overtime
wages (§ 510), failing to provide rest and meal periods (§ 226.7,
512, subd. (a)), failing to pay minimum wages (§§ 1182.2, 1194,
1197, 1197.1), failing to keep accurate payroll records and provide
itemized wage statements (§§ 226, subd. (a), 1174, subd. (d),
1198), failing to timely pay all wages earned (§§ 201-204), and
failing to reimburse necessary business-related expenses
(§§ 2800, 2802). In her original complaint Trivers, individually
and on behalf of other aggrieved employees, sought statutory
penalties under PAGA, as well as attorneys’ fees and costs.
Trivers filed a first amended complaint that removed her request
for penalties relating to the Labor Code violations she suffered
and that alleged she was acting as a plaintiff “on behalf of all
other Aggrieved Employees only.”
Sherwood filed a motion to compel arbitration of Trivers’s
individual PAGA claim. Sherwood argued that, because the
Federal Arbitration Act (FAA) governed the agreement to
arbitrate, the court should compel arbitration of Trivers’s
individual PAGA claim and stay her non-individual PAGA claim
pending the arbitration. Sherwood also argued the arbitration
agreement delegated to the arbitrator all issues regarding the
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validity and scope of the arbitration agreement. In opposition to
the motion to compel arbitration Trivers argued her complaint
did not include an individual PAGA claim. Trivers also argued
that, because Sherwood could not produce a signed copy of the
alleged arbitration agreement, Sherwood did not prove there was
a valid arbitration agreement. And Trivers argued the court
could not enforce the arbitration agreement because it was
procedurally and substantively unconscionable. In reply
Sherwood argued that the first amended complaint included an
individual PAGA claim and that, in any event, Trivers could not
assert a valid PAGA cause of action without seeking penalties on
her own behalf.
At the hearing on the motion to compel arbitration the trial
court asked counsel for Trivers to clarify whether her first
amended complaint included an individual PAGA claim. Counsel
for Trivers stated it did not: “The first amended complaint
dismissed all of plaintiff’s individual claims, including her
individual PAGA claims. Therefore, the only remaining claims
are representative claims.”
The trial court denied the motion to compel arbitration,
ruling Trivers “dismissed her individual claims when she filed
the First Amended Complaint.” Sherwood timely appealed.
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DISCUSSION
A. PAGA
“The Legislature enacted PAGA two decades ago in
response to widespread violations of the Labor Code and
significant underenforcement of those laws.” (Adolph v. Uber
Technologies, Inc. (2023) 14 Cal.5th 1104, 1116; see Betanco v.
Living Spaces Furniture, LLC (2026) 121 Cal.App.5th 411, 426.)
PAGA created “new civil penalties for various Labor Code
violations and ‘“[allowed] aggrieved employees, acting as private
attorneys general, to recover [those] penalties.”’” (Adolph, at
p. 1116, first brackets added; see Betanco, at p. 426.) “An
employee who brings a PAGA action to recover civil penalties acts
‘“as the proxy or agent”’ of the state.” (Adolph, at p. 1116; see
Betanco, at p. 426.)
Though an employer may require an employee as a
condition of employment to agree to arbitrate employment-
related disputes and to waive the right to bring a class action or
other representative lawsuit, an employer may not require an
employee to waive the right to bring an action under PAGA. (See
Iskanian v. CLS Transportation Los Angeles, LLC (2014)
59 Cal.4th 348, 362, 383 [an “employee’s right to bring PAGA
action is unwaivable”], overruled in part by Viking River Cruises,
Inc. v. Moriana (2022) 596 U.S. 639, 648-649, 659-662 (Viking
River) [FAA preempts only Iskanian’s prohibition on splitting
PAGA actions into individual and non-individual claims for
purposes of arbitration]; see also Adolph v. Uber Technologies,
Inc., supra, 14 Cal.5th at p. 1117 [“a predispute categorical
waiver of the right to bring a PAGA action is unenforceable
[citation]—a rule that Viking River left undisturbed”].) Where
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the FAA applies, however, an employer may require an employee
to agree to arbitrate his or her individual PAGA claim.2 (See
Viking River, at p. 662 [“the FAA preempts the rule of Iskanian
insofar as it precludes division of PAGA actions into individual
and non-individual claims through an agreement to arbitrate”];
Adolph, at p. 1119 [“Viking River requires enforcement of
agreements to arbitrate a PAGA plaintiff’s individual claims if
the agreement is covered by the FAA”].) In that event, the trial
court may exercise its discretion under Code of Civil Procedure
section 1281.4 to stay the non-individual PAGA claims pending
the arbitration. (Adolph, at pp. 1123-1124.)
“To have standing to bring a PAGA action, a plaintiff must
be an ‘aggrieved employee,’ which the statute defines as ‘any
person who was employed by the alleged violator and against
whom one or more of the alleged violations was committed.’”
(Adolph v. Uber Technologies, supra, 14 Cal.5th at p. 1116; see
§ 2699, subd. (c)(1); Betanco v. Living Spaces Furniture, LLC,
supra, 121 Cal.App.5th at p. 426.) After the United States
Supreme Court decided Viking River the California Supreme
Court held that, “where a plaintiff has filed a PAGA action
comprised of individual and non-individual claims, an order
compelling arbitration of individual claims does not strip the
2 “An individual PAGA claim is the component of a PAGA
[cause of action] that seeks civil penalties based on Labor Code
violations sustained by the plaintiff. [Citations.] A
nonindividual PAGA claim is the component of a PAGA [cause of
action] that seeks civil penalties based on Labor Code violations
sustained by current and former employees other than the
plaintiff.” (Rodriguez v. Packers Sanitation Services LTD., LLC
(2025) 109 Cal.App.5th 69, 75, review granted May 14, 2025,
S290182.)
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plaintiff of standing to litigate non-individual claims in court.”
(Adolph, at p. 1123; accord, Rodriguez v. Packers Sanitation
Services LTD (2025) 109 Cal.App.5th 69, 76 (Rodriguez), review
granted May 14, 2025, S290182.) The Courts of Appeal are
divided on the related question the California Supreme Court will
soon address: whether a plaintiff asserting a PAGA cause of
action may avoid arbitration by not asserting an individual
PAGA claim (i.e., by alleging the plaintiff has suffered Labor
Code violations for standing purposes without seeking penalties
for those violations). (See Rodriguez, at pp. 78-81; Galarsa v.
Dolgen California, LLC (2025) 115 Cal.App.5th 1, review granted
Dec. 17, 2025, S293545; Leeper v. Shipt, Inc., supra,
107 Cal.App.5th 1001, review granted.)
B. Because Trivers Did Not Allege an Individual PAGA
Claim, the Trial Court Did Not Err in Denying
Sherwood’s Motion To Compel Arbitration
In reviewing an order denying a motion to compel
arbitration,3 the threshold question is usually whether the
parties entered into a valid arbitration agreement. (See Code
Civ. Proc., § 1281.2 [court must order arbitration of a controversy
“if it determines that an agreement to arbitrate the controversy
exists”]; Santana v. Studebaker Health Care Center, LLC (2026)
120 Cal.App.5th 1, 11 [“Because arbitration is a contractual right,
the threshold question in every motion or petition to compel
arbitration is whether an agreement to arbitrate exists.”].) We do
not reach that threshold question, however, because the issue
3 Where “we review issues of law de novo and the trial court’s
factual findings under the substantial evidence standard” (Wright
v. WellQuest Elk Grove, LLC (2026) 119 Cal.App.5th 267, 275).
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here is whether the operative, first amended complaint alleged
an individual PAGA claim. (See Rodriguez, supra,
109 Cal.App.5th at p. 80 [“if on a motion to compel arbitration the
court examines the complaint and determines it does not allege
an individual PAGA claim, the court should decline to compel any
such claim to arbitration”], review granted.)
The trial court did not err in ruling Trivers did not allege
an individual PAGA claim in her operative, first amended
complaint. First, the amendments Trivers made to her original
complaint removed the essential components of her individual
PAGA claim. The caption page of the original complaint stated
Trivers was acting as a plaintiff “individually and on behalf of all
other Aggrieved Employees.” Trivers also sought penalties under
section 2699 “individually, and on behalf of all aggrieved
employees.” In her amended complaint, however, the caption
page stated she was acting as a plaintiff “on behalf of all other
Aggrieved Employees only.” And in her request for civil
penalties, Trivers deleted “individually” and instead requested
penalties only on behalf of aggrieved employees. (See Rodriguez,
supra, 109 Cal.App.5th at p. 77 [trial court did not err in ruling
the plaintiff no longer asserted an individual PAGA claim, where
the plaintiff removed “individual” and “individually” from the
caption page, as well as the request for penalties for individual
Labor Code violations], review granted.)
Second, Trivers represented to the trial court and has
represented to this court that she is no longer asserting an
individual PAGA claim. In the trial court, as discussed, counsel
for Trivers stated Trivers dismissed her individual PAGA claim
and was alleging only non-individual PAGA claims. Trivers
states in her respondent’s brief that “[o]n April 11, 2024, Plaintiff
9
filed a First Amended Complaint, which removed individual
claims from Plaintiff’s Complaint.”
True, Trivers repeatedly alleged in her first amended
complaint Sherwood violated the Labor Code as to her, and she
included herself in the complaint’s definition of “aggrieved
employees.” And she included the ambiguous allegation that the
“representative plaintiff and the individuals she seeks to
represent request relief as described below,” which included
“[s]tatutory penalties under PAGA.” Citing those allegations,
Sherwood argues Trivers’s complaint still includes an individual
PAGA claim that the court should have compelled to arbitration.
But Trivers had to allege she was an aggrieved employee in order
to have standing to bring a cause of action under PAGA. (Adolph
v. Uber Technologies, supra, 14 Cal.5th at p. 1123; see Rodriguez,
supra, 109 Cal.App.5th at pp. 76-77 [PAGA plaintiff’s allegation
he was an aggrieved employee did not convert non-individual
claims to individual claims because “under Adolph he is required
to allege that he is an aggrieved employee in order to meet the
standing requirements for PAGA nonindividual claims”], review
granted.) And though the first amended complaint is not a model
of clarity, Trivers’s representations to the trial court and to this
court have removed any ambiguity about the nature of her PAGA
claims. (See Rodriguez, at p. 77 [where PAGA plaintiff stated he
no longer sought individual PAGA relief, judicial estoppel would
preclude him from changing his position following remand].)
Sherwood also argues that, because the parties’ agreement
delegates questions of “arbitrability” to an arbitrator, the trial
court “exceeded its jurisdiction” by ruling on whether Trivers’s
complaint included a claim that could be compelled to arbitration.
“Under both federal and state law, ‘courts presume that the
10
parties intend courts, not arbitrators, to decide . . . disputes about
“arbitrability,”’ including “‘whether an arbitration clause in a
concededly binding contract applies to a particular type of
controversy.’” [Citations.] ‘The parties may agree to delegate
authority to the arbitrator to decide arbitrability, but given the
contrary presumption, evidence that the parties intended such a
delegation must be “‘clear and unmistakable’” before a court will
enforce a delegation provision.”’” (Mondragon v. Sunrun Inc.
(2024) 101 Cal.App.5th 592, 603; accord, Wright v. WellQuest Elk
Grove, LLC (2026) 119 Cal.App.5th 267, 274-275.) The parties’
arbitration agreement includes a delegation clause stating that
“claims, disputes, and/or controversies relating to the scope,
validity, or enforceability of this Agreement” are covered by the
arbitration agreement.
The delegation clause does not apply. In denying
Sherwood’s motion to compel arbitration, the court did not
address the scope, validity, enforceability, or even the existence of
the arbitration agreement. The trial court did not rule, for
example, that the parties did not agree to arbitrate an individual
PAGA claim, that the claims asserted in the operative complaint
were not subject to arbitration, or that the class action waiver
was invalid. The court simply looked at Sherwood’s motion,
which sought to compel arbitration of Trivers’s individual PAGA
claim, and reviewed the complaint to see if it included an
individual PAGA claim. In ruling Trivers did not allege an
individual PAGA claim the court had no occasion to (and did not)
consider the arbitrability of the claims Trivers alleged in the
operative complaint.
Sherwood also argues that, if the complaint does not
include an individual PAGA claim, we should decide whether a
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plaintiff may bring a valid PAGA cause of action without alleging
an individual PAGA claim. As explained, that question is
currently pending before the Supreme Court. Sherwood urges us
to either stay this appeal until the Supreme Court decides the
issue or follow the court’s decision in Leeper v. Shipt, Inc., supra,
107 Cal.App.5th 1001, review granted.
Given the procedural posture of this case, the question
whether a plaintiff may bring a cause of action under PAGA
without seeking damages for the Labor Code violations the
plaintiff suffered is not before us. As the court observed in
Rodriguez, supra, 109 Cal.App.5th 69, review granted, when an
appeal arises from an order resolving a motion to compel
arbitration (as opposed to a demurrer or other pleading
challenge), “[t]he only question . . . is whether the complaint
includes claims that are arbitrable. . . . Whether it is permissible
for a plaintiff to file a complaint that asserts only nonindividual
PAGA claims is a different question . . . .” (Id. at p. 78.) To the
extent Sherwood believes Trivers’s complaint fails to state a
cause of action under PAGA because it does not include an
individual PAGA claim, Sherwood may raise that issue in an
appropriate motion before the trial court.
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DISPOSITION
The order denying Sherwood’s motion to compel arbitration
is affirmed. Trivers is to recover her costs on appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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