Leeper v. Shipt, Inc., et al.

Filed 12/30/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CHRISTINA LEEPER,
Plaintiff and Respondent,
v.
SHIPT, INC., et al.,
Defendants and Appellants.
B339670
(Los Angeles County
Super. Ct. No. 24STCV06485)
APPEAL from an order of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Reversed with
directions.
Seyfarth Shaw, Camille A. Olson, Candace Bertoldi,
Richard B. Lapp and Christopher A. Crosman for Defendants and
Appellants.
Lieff Cabraser Heimann & Bernstein, Daniel M.
Hutchinson, Michelle A. Lamy and Faith E. A. Lewis for Plaintiff
and Respondent.

-- 1 of 16 --

2
Shipt, Inc. (Shipt) and its parent company Target
Corporation (Target) (collectively, appellants) appeal from an
order denying their motion to compel arbitration in an action
brought against them by respondent Christina Leeper under the
Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)
(PAGA).1 The court denied the motion on the basis that Leeper’s
PAGA action did not allege any individual claims subject to
arbitration under the parties’ arbitration agreement.
Based on the unambiguous, ordinary meaning of the
relevant statutory language and the legislative history of
that language, however, we conclude that every PAGA action
necessarily includes an individual PAGA claim.2 Accordingly,
we reverse and direct the court to enter a new order
(1) compelling the parties to arbitrate Leeper’s individual
PAGA claim and (2) staying the representative PAGA claim
portion of the lawsuit.
FACTS AND PROCEEDINGS BELOW
A. The Arbitration Agreement Between Leeper
and Appellants
Shipt is an online ordering platform whose members
arrange for Shipt “[s]hoppers” to purchase and provide delivery
of goods from local merchants. On March 19, 2019, Leeper
entered into an independent contractor agreement with Shipt to
provide services as a Shipt shopper. The independent contractor
1 Unless otherwise indicated, all further statutory
references are to the Labor Code.
2 See pages 6–7, post, regarding our use of the terminology
“individual PAGA claim” and “representative PAGA claim.”

-- 2 of 16 --

3
agreement references and incorporates a separate arbitration
agreement Leeper and Shipt also executed.
The arbitration agreement obligates Leeper and
appellants3 to “resolve[ ] through mandatory, binding
arbitration” “any and all disputes, claims, or controversies
of any kind and nature between [them].” The arbitration
agreement also delegates to the arbitrator several threshold
issues, including “disputes about whether any claims,
controversies, or disputes between us are subject to arbitration”
and “claims . . . regarding the scope, interpretation, validity,
and enforceability of any Independent Contractor Arbitration
Agreement or this Arbitration Agreement.” Appellants refer
to these provisions as the “delegation clause.”
The agreement “is made pursuant to a transaction
involving interstate commerce and shall be governed by
the Federal Arbitration Act [(FAA)].”
B. Leeper’s Lawsuit Against Appellants
On March 14, 2024, Leeper filed a complaint against
appellants styled as a “representative complaint for injunctive
and declaratory relief, civil penalties, and other relief under
[PAGA].” (Capitalization omitted.) The complaint alleges Shipt
“misclassified [Leeper] and other similarly situated [w]orkers as
independent contractors and, in so doing, has violated multiple
provisions of the . . . Labor Code.” Leeper is alleged to qualify
as “an ‘aggrieved employee’ ” under PAGA, because she was
“employed by Shipt during the applicable statutory period and
suffered the Labor Code violations alleged [in the complaint].”
3 The arbitration agreement states that it applies to Shipt
and, inter alia, any of Shipt’s “affiliates or parents.”

-- 3 of 16 --

4
On these bases, Leeper alleged a single count for “[PAGA]
non-individual penalties.” (Capitalization omitted.) Leeper
alleged that she “[brought] this PAGA action on a representative,
non-individual basis” and “in [her] representative capacity as
an aggrieved employee on behalf of the [s]tate and all similarly
aggrieved individuals subjected to the [alleged] violations.”
Leeper alleged her “claim is typical of the claims of the others
whom [she] seeks to represent” and that “[her] claims are
representative of and co-extensive with the claims of the
other aggrieved individuals.” She sought “non-individual
civil penalties” and “non-individual injunctive and declaratory
relief.” In the complaint, Leeper also addressed the arbitration
agreement as follows: “Because [Leeper] alleges only non-
individual PAGA claims on a representative basis, Shipt cannot
compel them to arbitrat[ion].”
On May 14, 2024, appellants filed a motion to compel
arbitration of the individual portion of Leeper’s PAGA action
and, under the delegation clause, any disputes regarding the
enforceability of the arbitration agreement.4 In her opposition,
Leeper argued she had not alleged any individual claims, and
thus there was nothing to compel to arbitration. She did not
respond to appellants’ argument that the agreement delegated
4 Before appellants filed this motion, the parties’ counsel
exchanged emails regarding their differing views about the
applicability of the arbitration agreement to Leeper’s lawsuit.
Leeper contends in the factual background section of her brief
to this court that this correspondence did not satisfy, and that
appellants in no other way satisfied, the requirement that they
meet and confer regarding their motion to compel. Leeper does
not present any legal argument that this is a basis for affirming
the court’s order on appeal.

-- 4 of 16 --

5
to the arbitrator any questions regarding the arbitrability
of disputes or the enforcement of the agreement. Appellants’
motion further sought a stay of the litigation pending arbitration,
which Leeper also opposed.
The trial court denied the motion on the basis that “[the]
action [was] solely a representative PAGA suit without any
individual causes of action” and “[a]s such, the [c]ourt [had]
no individual cause of action it may compel to arbitration.”
This appeal followed.
DISCUSSION
A. General Legal Framework Under PAGA
“Informed by findings of pervasive underenforcement
of many Labor Code provisions and ‘a shortage of government
resources to pursue enforcement,’ the Legislature enacted PAGA
to create new civil penalties for Labor Code violations and ‘ “to
allow aggrieved employees, acting as private attorneys general,
to recover [those] penalties.” ’ [Citation.] Specifically, PAGA
authorizes ‘an aggrieved employee,’ acting as a proxy or agent
of the state Labor and Workforce Development Agency (LWDA),
to bring a civil action against an employer ‘on behalf of himself
or herself and other current or former employees’ to recover
civil penalties for Labor Code violations they have sustained.”
(Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1113
(Adolph), quoting § 2699, subd. (a).) This definition of a PAGA
action is contained in section 2699, subdivision (a). Section 2699,
subdivision (c)(1) addresses what a plaintiff must establish in
order to be an “aggrieved employee” with standing to bring a

-- 5 of 16 --

6
PAGA action.5 (See §§ 2699, subds. (a) & (c); see Adolph, supra,
14 Cal.5th at p. 1121.) Here, we are concerned with what a
PAGA action entails as defined by section 2699, subdivision (a),
and not standing.
All PAGA actions are inherently representative in that
a PAGA plaintiff is always acting as a proxy for the LWDA and
collecting civil penalties on the LWDA’s behalf. (See Viking River
Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 648–649 (Viking
River); Adolph, supra, 14 Cal.5th at p. 1114.) Such civil penalties
are otherwise recoverable only by the LWDA, and a PAGA
plaintiff must remit the majority collected in a PAGA action
to the LWDA. (§ 2699, subd. (m) [“civil penalties recovered by
aggrieved employees shall be distributed as follows: 65 percent
to the [LWDA] . . . and 35 percent to the aggrieved employees”].)
By contrast, a plaintiff cannot recover civil penalties via a
non-PAGA Labor Code claim; instead, such a claim may seek
“statutory penalties” the LWDA is not entitled to collect. (Kim,
supra, 9 Cal.5th at p. 81.)
A PAGA plaintiff is acting in a representative capacity
in another way as well: By asserting a PAGA claim based on
violations that employees other than the plaintiff have suffered.
(Viking River, supra, 596 U.S. at pp. 648–649.) In Viking River,
the United States Supreme Court used the term “ ‘representative’
PAGA claim[ ]” to refer to this aspect of a PAGA action, and the
5 Section 2699, subdivision (c)(1) defines such an aggrieved
employee as “any person who was employed by the alleged
violator and personally suffered each of the violations alleged.”
(§ 2699, subd. (c)(1); see Adolph, supra, 14 Cal.5th at p. 1121 [to
have standing a plaintiff must show “that Labor Code violations
were committed against [the plaintiff] while [the plaintiff] was
employed by [the defendant]”].)

-- 6 of 16 --

7
term “ ‘individual PAGA claim’ ” to refer to a portion of a PAGA
action that is “based on code violations suffered by the plaintiff.”
(Id. at p. 649.) The parties here employ similar terminology in
their briefing, as did the California Supreme Court in a recent
decision. (See Adolph, supra, 14 Cal.5th at p. 1114.) We do
so for the purposes of this decision as well.
B. Leeper’s PAGA Action Alleges an Individual
PAGA Claim
Appellants argue that Leeper’s PAGA action includes an
individual PAGA claim on Leeper’s behalf,6 and thus is not, as
Leeper contends and the trial court concluded, a PAGA action
brought in a purely representative capacity on behalf of other
employees.7 We agree with appellants.
1. Statutory Language Unambiguously
Provides That Any PAGA Action Includes
an Individual PAGA Claim
Appellants argue that a necessary component of every
PAGA action is an individual PAGA claim, and thus that Leeper,
6 Leeper characterizes appellants’ argument as
asserting that she “should have brought individual claims
in order to establish standing to sue.” We disagree with this
characterization of appellants’ argument.
7 As noted, for the purposes of this appeal, in referring to
aspects of a PAGA action as “individual” or “representative,” we
are setting aside—as have recent decisions of the United States
and California Supreme Courts in their use of these terms—
that all aspects of a PAGA action are inherently representative
because the plaintiff acts on behalf of the LWDA. We thus
recognize that even what we refer to as “individual PAGA claims”
are, in this sense, representative.

-- 7 of 16 --

8
having alleged a cause of action under PAGA has, as a matter of
law, alleged both an individual claim and a representative claim.
Because this presents a question of statutory interpretation,
our review is de novo.8 (Adolph, supra, 14 Cal.5th at p. 1120.)
“In construing a statute, our task is to ascertain the
intent of the Legislature so as to effectuate the purpose of the
enactment.” (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th
478, 487.) The first step in this endeavor is always looking
to “the words of the statute, which are the most reliable
indications of the Legislature’s intent.” (Ibid.) In pertinent
part, section 2699, subdivision (a) describes a PAGA claim
as “a civil action brought by an aggrieved employee on behalf
of the employee and other current or former employees.”9
The unambiguous and ordinary meaning of the word “and”
8 Because we find this argument dispositive, we do not
reach appellants’ alternative argument that, even if every PAGA
action does not necessarily include an individual claim, Leeper’s
complaint alleges such an individual PAGA claim. We also
do not reach the issue, about which the parties disagree, of the
appropriate standard of review for assessing this alternative
argument.
9 The full description of a PAGA action in section 2699,
subdivision (a) is as follows: “Notwithstanding any other
provision of law, any provision of this code that provides for a
civil penalty to be assessed and collected by the [LWDA] or any
of its departments, divisions, commissions, boards, agencies,
or employees, for a violation of this code, may, as an alternative,
be recovered through a civil action brought by an aggrieved
employee on behalf of the employee and other current or former
employees against whom a violation of the same provision was
committed pursuant to the [notice and fee] procedures specified
in Section 2699.3.”

-- 8 of 16 --

9
is conjunctive, not disjunctive. Thus, the clause “on behalf of
the employee and other current or former employees” (§ 2699,
subd. (a), italics added) means that the action described
has both an individual claim component (plaintiff ’s action on
behalf of the plaintiff himself or herself) and a representative
component (plaintiff ’s action on behalf of other aggrieved
employees).
Leeper argues that another part of the statute trumps
the plain meaning of this conjunctive language and allows the
individual employee the option of bringing only a representative
claim. Namely, she points to language in section 2699 stating
that civil penalties “to be assessed and collected by the
[LWDA] . . . for a violation of this code, may, as an alternative,
be recovered through a civil action brought by an aggrieved
employee on behalf of the employee and other current or former
employees against whom a violation of the same provision was
committed.” (§ 2699, subd. (a), italics added.) But this language
is referring to PAGA actions seeking civil penalties otherwise
only recoverable by the LWDA as an alternative to the LWDA
itself collecting those penalties. (See Kim, supra, 9 Cal.5th at
pp. 80–81.)
Leeper also cites language in section 2699,
subdivision (k)(1) providing: “Nothing in [PAGA] shall
operate to limit an employee’s right to pursue or recover other
remedies available under state or federal law, either separately
or concurrently with an action taken under [PAGA].” By its
own terms, this refers to non-PAGA claims—i.e., “other remedies”
besides those set forth in PAGA. (§ 2699, subd. (k)(1).) It thus
speaks to the right of a PAGA plaintiff to bring a non-PAGA
individual claim or a class action claim seeking statutory

-- 9 of 16 --

10
penalties to compensate the plaintiff or class of plaintiffs—
not civil penalties largely payable to the LWDA—in addition
to a PAGA claim. (See Kim, supra, 9 Cal.5th at p. 88.)
Accordingly, based on the unambiguous language in
section 2699, subdivision (a), any PAGA action necessarily
includes both an individual PAGA claim and a representative
PAGA claim. Leeper’s interpretation would have us either excise
the language “on behalf of the employee” or interpret the word
“and” to mean “and/ or.” (§ 2699, subd. (a).) Doing either would
be contrary to fundamental tenets of statutory construction that
we assign the “statute’s words . . . their usual and ordinary
meanings, and constru[e] them in context” (Wells v. One2One
Learning Foundation (2006) 39 Cal.4th 1164, 1190 (Wells)), and
that we not “render statutory language meaningless” (Plantier v.
Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 386).
We recognize that the existence of an individual PAGA
claim in every PAGA action means this claim often may be
separately compelled to arbitration where the FAA applies
(see Viking River, supra, 596 U.S. at p. 642), which may trigger
a stay of the litigation of the representative PAGA claim (see
Code Civ. Proc., § 1281.4) and even potentially affect the outcome
of that litigation via issue preclusion (see Rocha v. U-Haul Co.
of California (2023) 88 Cal.App.5th 65, 69). But Leeper’s
contention that this result contravenes public policy is not a
ground for ignoring the unambiguous language of the PAGA
statute. (Wells, supra, 39 Cal.4th at p. 1190 [when statutory
“words themselves are not ambiguous, we presume the
Legislature meant what it said, and the statute’s plain meaning
governs”]; see ibid. [only “[i]n cases of uncertain meaning . . . we

-- 10 of 16 --

11
may also consider the consequences of a particular interpretation,
including its impact on public policy”].)
In any case, statutory history supports our interpretation
of what the Legislature intended. Namely, legislative history
reflects that the Legislature deliberately chose the word “and”
and rejected the word “or” in the statutory description of a PAGA
action as “a civil action . . . on behalf of [the plaintiff] and other
current or former employees.” (§ 2699, subd. (a), italics added.)
Namely, the version of section 2699 in the originally proposed
Senate bill used the phrase “a civil action . . . on behalf of himself
or herself or other current or former employees.” (Assem. Com.
on Judiciary, Analysis of Sen. Bill No. 796 (2003–2004 Reg. Sess.)
as amended May 12, 2003, p. 8, italics added.) In an “author’s
technical amendment” to the initially proposed bill, “in order
to clarify the intent of the bill and correct drafting errors,”
the author replaced the word “or” with the word “and.” (Ibid.,
capitalization omitted.) The Legislature accepted this change
without opposition, and it is reflected in the final version of
the statute.
2. PAGA Standing Decisions Leeper Cites
Do Not Support a Different Result
Leeper argues that two decisions of the California Supreme
Court, Kim, supra, 9 Cal.5th 73 and Adolph, supra, 14 Cal.5th
1104, support her interpretation of the statute. Leeper
similarly relies on a recent decision of Division Six of this court,
Balderas v. Fresh Start Harvesting, Inc. (2024) 101 Cal.App.5th
533 (Balderas). But none of the cases she cites even speaks to the
issue presented here—that is, the definition of a PAGA claim—
nor does any interpret the statutory language at issue here.

-- 11 of 16 --

12
a. The California Supreme Court’s Decision
in Kim
To support her proposed interpretation of PAGA, Leeper
cites to language in Kim stating that the statute “expressly
authorizes PAGA suits brought ‘separately’ from individual
claims for relief ” (Kim, supra, 9 Cal.5th at p. 88), and that the
Legislature did not “intend[ ] to make PAGA standing dependent
on . . . the maintenance of a separate, unresolved claim” (id. at
pp. 90–91). But this language refers to individual non-PAGA
claims—not individual PAGA claims as we define and discuss
them in this opinion, and as the California Supreme Court
defined and discussed them in Adolph. (See Adolph, supra,
14 Cal.5th at p. 1114.) Indeed, it was only after Viking River—
which postdates Kim—that courts began discussing the
possibility of splitting PAGA claims into individual and
representative components that might be adjudicated in separate
fora. The plaintiff in Kim had settled “his own Labor Code
claims against” the defendant seeking statutory penalties not
recoverable under PAGA, and the question presented to the
high court was whether that settlement of individual non-PAGA
claims deprived him of standing to bring a PAGA action seeking
civil penalties. (Kim, supra, 9 Cal.5th at p. 82.) The court
concluded it did not. Thus, the language in Kim that PAGA
“expressly authorizes PAGA suits brought ‘separately’ from
individual claims for relief . . . (§ 2699, subd. (g)(1) . . . )” (Kim,
supra, at p. 88), and that the Legislature did not “intend[ ] to
make PAGA standing dependent on . . . the maintenance of a
separate, unresolved claim” (id. at pp. 90–91), is referring to
individual non-PAGA claims. It does not address individual
PAGA claims and therefore does not guide our analysis.

-- 12 of 16 --

13
Kim thus addressed only the question of standing, not the
definition of a PAGA claim. (See Kim, supra, 9 Cal.5th at p. 80,
fn. omitted [“[t]his case presents an issue of first impression:
Do employees lose standing to pursue a claim under [PAGA] if
they settle and dismiss their individual claims for Labor Code
violations”] & id. at p. 82.) Because the question of standing
depends solely on whether a plaintiff is an aggrieved employee
as defined by section 2699, subdivision (c)(1) (see Kim, supra,
at pp. 83–84; accord, Adolph, supra, 14 Cal.5th at pp. 1116 &
1120), Kim neither had occasion to interpret, nor did it interpret,
section 2699, subdivision (a) defining what a PAGA action
necessarily includes.
b. The California Supreme Court’s Decision
in Adolph
Adolph, supra, 14 Cal.5th 1104, unlike Kim, does discuss
individual PAGA claims. The plaintiff had brought a PAGA
action expressly including an individual PAGA claim component
and a representative PAGA claim component. The Supreme
Court concluded the plaintiff ’s individual PAGA claim component
could be adjudicated via arbitration without the plaintiff losing
standing to pursue the remaining representative PAGA claim
portion in court. The Adolph court did not, therefore, have
occasion to consider whether the plaintiff could have, from the
beginning of his lawsuit, alleged only a representative PAGA
claim. Rather, like Kim, Adolph speaks only to the requirements
for PAGA standing based on section 2699, subdivision (c)(1)—not
the conceptually and legally distinct issue of what claims a PAGA
action necessarily involves.

-- 13 of 16 --

14
c. The Court of Appeal’s Decision in
Balderas
Finally, Leeper argues that Balderas, supra, 101
Cal.App.5th 533, supports his position that a plaintiff may
properly allege only a representative PAGA claim. Balderas
is another standing case, the holding of which addresses only
PAGA standing issues and thus relies only on section 2699,
subdivision (c)(1)’s definition of “aggrieved employee.” Balderas
did not have occasion to discuss, did not discuss, and its holding
does not address, whether a plaintiff may carve out an individual
PAGA claim from a PAGA action. In arguing to the contrary,
Leeper relies entirely on dicta in Balderas that may suggest
the Court of Appeal accepted the plaintiff ’s and trial court’s
characterization of PAGA claims as capable of being asserted
on behalf of aggrieved employees other than the named plaintiff.
(Balderas, supra, at p. 538.)
In sum, neither Kim, Adolph, nor Balderas suggests
we should—let alone requires that we must—reach the
interpretation of section 2699, subdivision (a) proposed by
Leeper.
C. The Court Erred in Not Compelling Leeper’s
Individual PAGA Claim to Arbitration and
Staying the Litigation
The only basis Leeper argues for affirming the order,
and the only basis Leeper raised below in opposing the motion,
was that her complaint did not allege any individual claim.10
10 Leeper does not contend that Leeper’s individual PAGA
claim falls outside the scope of the arbitration agreement. Nor
does she deny the enforceability of the arbitration agreement.

-- 14 of 16 --

15
Because we disagree, the court on remand must order plaintiff ’s
individual PAGA claim to arbitration.
Appellants further argue that the court should have stayed
the portion of the litigation remaining in court. We agree that
the Code of Civil Procedure requires such a stay. (See Code
Civ. Proc., § 1281.4 [“if a court of competent jurisdiction, . . . has
ordered arbitration of a controversy which is an issue involved
in an action or proceeding pending before a court of this state,
the court in which such action or proceeding is pending shall,
upon motion of a party to such action or proceeding, stay the
action or proceeding,” capitalization omitted & italics added].)
The duration of the stay, however, remains within the court’s
discretion. (See ibid. [requiring such a stay “until an arbitration
is had in accordance with the order to arbitrate or until such
earlier time as the court specifies”].)
Accordingly, there is no need to address appellants’ arguments
that the delegation clause requires the arbitrator to decide
disputes regarding these issues.

-- 15 of 16 --

16
DISPOSITION
We reverse the court’s order. We direct the court to issue a
new order compelling the parties to arbitrate Leeper’s individual
PAGA claim and staying litigation of the representative PAGA
claim for an amount of time to be determined by the court.
Appellants are awarded their costs on appeal.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
WEINGART, J.
KLATCHKO, J.*
* Judge of the Riverside Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

-- 16 of 16 --