Last month, the Supreme Court granted review on its own motion in Leeper v. Shipt, Inc. (See here.) The same day, however, the superior court dismissed the case at the plaintiff’s request. That might cause the Supreme Court to in turn dismiss the review nobody asked for.
But there’s another case — this one with a pending petition for review — raising the same issues as in Leeper. That case — Rodriguez v. Packers Sanitation Services Ltd., LLC. — was on track to be a grant-and-hold for Leeper, but now could turn out to be a straight grant. Mooted cases have caused juggling of the Supreme Court’s docket in the past.
When the court granted review in Leeper, it limited the issues to: “1.) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? 2.) Can a plaintiff choose to bring only a non-individual PAGA action?” PAGA allows employees to sue as agents of the State, for themselves and others, to recover civil penalties for Labor Code violations. The issues are important because employers can force arbitration of individual, but not non-individual, PAGA claims, and, if an individual claim is arbitrated, the non-individual claims are stayed during the arbitration.
In Leeper, the Second District, Division One, Court of Appeal published opinion held that “every PAGA action necessarily includes an individual PAGA claim” and that a plaintiff cannot avoid arbitration of the individual claim, even if an individual claim is not pleaded, which in turn requires a stay of court proceedings on the non-individual claim.
The Fourth District, Division One, published opinion in Rodriguez, on the other hand, disagreed with Leeper. It concluded that every PAGA complaint doesn’t necessarily include an individual claim, that the complaint before it did not include such a claim, and that a motion to compel arbitration was thus properly denied. Division One didn’t decide, however, whether “it is permissible for a plaintiff to file a complaint that asserts only non-individual PAGA claims”; it left for later a decision whether the complaint was subject to a challenge as not having been properly pleaded.
With the dismissal of the Leeper lawsuit, it’s a decent bet that the Supreme Court will dismiss review in that case and also grant review in Rodriguez.
Although no one sought review in Leeper, there is a pending depublication request in the case. If the court dismisses review in Leeper and grants review in Rodriguez, my guess is the court will deny depublication to let superior courts choose between the Leeper and Rodriguez opinions while Rodriguez is pending on review. (See here.)
