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Zakaryan v. The Men's Wearhouse, Inc.

Court of Appeal of California, Second Appellate District, Division Two

March 28, 2019, Opinion Filed



 [**334]  HOFFSTADT, J.—The Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) deputizes individual employees to step [*665]  into the shoes of our state's labor enforcement agency and sue their employers for underpaid wages and  [**335]  additional, statutorily prescribed amounts on behalf of themselves and their aggrieved coworkers. (Lab. Code, § 2698 et seq.)1 In Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382–392 [173 Cal. Rptr. 3d 289, 327 P.3d 129] (Iskanian), our Supreme Court held that individual employees cannot contractually agree to arbitrate their potential PAGA claims, but may still contractually agree to arbitrate their “individual damages claims.” If an employee brings a solitary PAGA claim, may a trial court split that claim—that is, may the court send the [***2]  employee to arbitration (when he has agreed to it) to recover his underpaid wages but retain jurisdiction to award the additional, statutorily prescribed amounts? Our sister courts are divided on the issue: Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 [221 Cal. Rptr. 3d 594] (Esparza) has sanctioned such an order, while Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705 [227 Cal. Rptr. 3d 613] (Lawson) has not. Although this issue is pending before our Supreme Court in Lawson (Lawson, review granted Mar. 21, 2018, S246711), we analyze the issue differently than Esparza or Lawson but ultimately conclude that courts may not split a solitary PAGA claim and send it to two different fora. Accordingly, we affirm the trial court's order denying the motion to compel arbitration in this case.


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33 Cal. App. 5th 659 *; 245 Cal. Rptr. 3d 333 **; 2019 Cal. App. LEXIS 272 ***; 2019 WL 1397034

ARTHUR ZAKARYAN, Plaintiff and Respondent, v. THE MEN'S WEARHOUSE, INC., et al., Defendants and Appellants.

Notice: THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) July 10, 2019, S255610.

Subsequent History: Time for Granting or Denying Review Extended Zakaryan v. The Men's Wearhouse, Inc., 2019 Cal. LEXIS 4920 (Cal., July 1, 2019)

Review granted by, Review pending at Zakaryan v. The Men's Wearhouse, Inc., 249 Cal. Rptr. 3d 281, 444 P.3d 85, 2019 Cal. LEXIS 5019 (Cal., July 10, 2019)

Review dismissed by ZAKARYAN v. MEN'S WEARHOUSE, INC., 2019 Cal. LEXIS 8394 (Cal., Nov. 13, 2019)

Prior History:  [***1] APPEAL from an order of the Superior Court of Los Angeles County, No. BC647541, Richard E. Rico, Judge.

Disposition: Affirmed.


arbitration, wages, underpaid, civil penalty, split, aggrieved employee, employees, percent, labor law, meal, violations, overtime, per-pay-period, recovered, primary right, rest period, damages, individual employee, solitary, arbitration law, injunctive, aggrieved, amounts, allocate, remedies, parties, premium, terms

Civil Procedure, Appeals, Standards of Review, De Novo Review, Labor & Employment Law, Wage & Hour Laws, Remedies, Questions of Fact & Law, Business & Corporate Compliance, Scope & Definitions, Overtime & Work Periods, Labor & Employment Law, Wage Payments, Pleading & Practice, Pleadings, Judgments, Preclusion of Judgments, Res Judicata, Governments, Legislation, Interpretation, Arbitration, Federal Arbitration Act, Arbitration Agreements, Remedies, Private Suits