Play that Song Again

Contreras v. Superior Court, No. B307025 (D2d5 Mar. 1, 2021) 

This case raises the same issue as last year’s Court of Appeal decision in Olabi, and its previous decisions in Perez, and Williams. And it comes out the same way.

Plaintiff brings a PAGA claim based, in part, on her misclassification as an independent contractor. Her contract contains an arbitration clause that delegates arbitrability to an arbitrator. Of course, PAGA claims aren’t arbitrable. But there’s a threshold question as to whether PAGA even applies, because if Plaintiff was properly designated as a contractor, she’s not an “aggrieved employee.” So the trial court sent the case to arbitration for the arbitrator to at least make that finding. 

But as Olabi, Perez, and Williams all explain, a court can’t split up a PAGA claim into different issues and farm some of them out to an arbitrator, even if those issues are gating to the application of the statute itself. So it was error for the trial court to order the issue to arbitration.

Writ granted.