Filed 4/30/20 Torres v. Sonic Automotive, Inc. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ISMAEL TORRES,

Plaintiff and Respondent,

v.

SONIC AUTOMOTIVE, INC.,

Defendant and Appellant.

B288272

(Los Angeles County

Super. Ct. No. BC664669)

APPEAL from an order of the Superior Court of Los Angeles County, Gregory Keosian, Judge. Affirmed and remanded with directions.

Fine, Boggs & Perkins, John P. Boggs, David J. Reese, and Kevin Holloway for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * * * * *

Sonic Automotive, Inc. (Sonic) has appealed the trial court’s denial of its motion to compel arbitration. While this appeal was pending, our Supreme Court decided ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175 (ZB). ZB resolves this appeal but necessitates a remand to allow the trial court to consider granting Ismael Torres (plaintiff) the opportunity to amend his operative complaint.

FACTS AND PROCEDURAL BACKGROUND

After plaintiff stopped working as an “hourly service technician[] and mechanic[]” for one of Sonic’s car dealerships, he sued Sonic. In the operative first amended complaint, plaintiff brought a solitary claim for “civil penalties” under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).

The PAGA empowers “aggrieved employee[s]” to bring a representative claim against their employer for “civil penalties” previously only available in enforcement actions by state labor law agencies. (§ 2699, subd. (a); Arias v. Superior Court (2009) 46 Cal.4th 969, 980, 986.) Plaintiff’s PAGA claim in this case sought to recover civil penalties on behalf of all similarly situated employees for Sonic’s alleged failure to pay minimum wage for all hours worked, to pay overtime compensation, to give rest and meal breaks, and to issue accurate wage statements. For the overtime compensation violations, plaintiff specifically sought to “recover up to three years of underpaid wages under Labor Code section 558.”

Because plaintiff had signed a number of agreements to arbitrate “any claim, dispute, and/or controversy . . . arising from, related to, or having any relationship or connection whatsoever with [his] . . . employment,” Sonic filed a petition to compel arbitration. In light of our Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 378-392 (Iskanian) that “representative claims under the PAGA” are not subject to arbitration, Sonic sought (1) to compel arbitration of plaintiff’s “individual claim” for underpaid wages under section 558, and (2) to stay the remainder of his PAGA claim pending that arbitration. Plaintiff opposed the petition.

The trial court denied the motion to compel on the ground that an employee’s entitlement to underpaid wages under section 558 constituted a “civil penalty” within the meaning of the PAGA and thus fell under Iskanian’s rule against arbitration of such claims.

Sonic timely appealed.

DISCUSSION

While Sonic’s appeal was pending, our Supreme Court decided ZB, supra, 8 Cal.5th 175. ZB holds that “un[der]paid wages are not recoverable as civil penalties under the PAGA in the first place.” (Id. at p. 193.) As a consequence, plaintiff cannot seek to recover those wages as part of his PAGA claim.

This ruling has two consequences for this appeal. First, it means that the trial court was right to deny the petition to compel arbitration of the underpaid wages claim because, under ZB, there is no such claim to arbitrate. (ZB, supra, 8 Cal.5th at p. 198.) Thus, Sonic’s contention that we must reverse the trial court’s order is wrong. Second, it means that on remand the trial court may consider striking the underpaid wages claim from plaintiff’s operative complaint or giving plaintiff the opportunity to decide whether to amend his operative complaint to allege recovery of these underpaid wages on a non-PAGA basis. (Id. at pp. 182, 198 [so noting].)

DISPOSITION

We affirm the order denying the petition to compel arbitration, but remand with directions to have the trial court either strike the underpaid wages claim or give plaintiff the opportunity to amend his operative complaint. Plaintiff is entitled to his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P.J.

LUI

_________________________, J.

CHAVEZ