ZB, N.A. v. Superior Court ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
ZB, N.A., and ZIONS BANCORPORATION,
Petitioners,
v.
SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
KALETHIA LAWSON,
Real Party in Interest.
S246711
Fourth Appellate District, Division One
D071279 and D071376
San Diego County Superior Court
37-2016-00005578-CU-OE-CTL
September 12, 2019
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Kruger, and Groban concurred.
ZB, N.A. v. SUPERIOR COURT
S246711
Opinion of the Court by Cuéllar, J.
Under the Private Attorneys General Act of 2004 (PAGA)
(Lab. Code, § 2698 et seq.),1 an employee may seek civil penalties
for Labor Code violations committed against her and other
aggrieved employees by bringing –– on behalf of the state –– a
representative action against her employer. (§ 2699, subd. (a).)
In Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59
Cal.4th 348 (Iskanian), we held that a court may not enforce an
employee’s alleged predispute waiver of the right to bring a
PAGA claim in any forum. We also found that where such a
waiver appears in an employee’s arbitration agreement, the
Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) does not
preempt this state law rule.
This case concerns a PAGA action seeking civil penalties
under Labor Code section 558. Brought by real party in interest
Kalethia Lawson, the action named as defendants Lawson’s
employer, ZB, N.A. — with whom she agreed to arbitrate all
employment claims and forego class arbitration — and its
parent company, Zions Bancorporation (collectively, ZB). Before
the enactment of the PAGA, section 558 gave the Labor
Commissioner authority to issue overtime violation citations for
“a civil penalty as follows: [¶] (1) For any initial violation, fifty
dollars ($50) for each underpaid employee for each pay period
1
All subsequent statutory references are to the Labor Code,
unless otherwise noted.
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Opinion of the Court by Cuéllar, J.
for which the employee was underpaid in addition to an amount
sufficient to recover underpaid wages. [¶] (2) For each
subsequent violation, one hundred dollars ($100) for each
underpaid employee for each pay period for which the employee
was underpaid in addition to an amount sufficient to recover
underpaid wages.” (Id., subd. (a), italics added.) We granted
review to decide whether Iskanian controls, and the FAA has no
preemptive force, where an aggrieved employee seeks the
“amount sufficient to recover underpaid wages” in a PAGA
action.
But to resolve this case we must answer a more
fundamental question: whether a plaintiff may seek that
amount in a PAGA action at all. The Court of Appeal thought
so. It concluded section 558’s civil penalty encompassed the
amount for unpaid wages, and Lawson’s claim for unpaid wages
could not be compelled to arbitration under Iskanian. It
accordingly ordered the trial court below to deny ZB’s motion to
arbitrate that portion of her claim.
What we conclude is that the civil penalties a plaintiff may
seek under section 558 through the PAGA do not include the
“amount sufficient to recover underpaid wages.” Although
section 558 authorizes the Labor Commissioner to recover such
an amount, this amount –– understood in context –– is not a
civil penalty that a private citizen has authority to collect
through the PAGA. ZB’s motion concerned solely that
impermissible request for relief. Because the amount for unpaid
wages is not recoverable under the PAGA, and section 558 does
not otherwise permit a private right of action, the trial court
should have denied the motion. We affirm the Court of Appeal’s
decision on that ground. On remand, the trial court may
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Opinion of the Court by Cuéllar, J.
consider striking the unpaid wages allegations from Lawson’s
complaint, permitting her to amend the complaint, and other
measures.
I.
According to her complaint, Lawson began working for
California Bank & Trust (CB&T) in 2013 as an hourly employee.
CB&T is now a division of petitioner ZB, N.A. ZB’s motion to
compel arbitration explained that the employee handbook in
effect at the time of Lawson’s hiring included a section entitled
“Mandatory Binding Arbitration Policy and Agreement.” A
“statement of compliance” distributed with the employee
handbook required the employee, by signing, to affirm that she
had read that section of the handbook. The statement read: “I
understand that by accepting or continuing employment with
the Company I agree to use binding arbitration to resolve
certain legal claims or controversies with the Company, Zions or
Zions Entities, including federal Title VII and state civil rights
claims, pursuant to the mandatory binding arbitration policy.”
Lawson electronically acknowledged receipt of the
employee handbook and statement of compliance, as well as an
updated employee handbook and statement of compliance a year
later. Lawson does not contest here that she is bound to
arbitration pursuant to the terms of the relevant employee
handbook section. The section mandated binding arbitration to
resolve “[a]ny legal controversy or claim arising out of
[Lawson’s] employment.” It also contained a “class action”
waiver that said: “[C]laims by different claimants against the
Company, Zions and Zions Entities or by the Company against
different employees, former employees or applicants, may not be
combined in a single arbitration. Unless specific state law states
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otherwise, no arbitration can be brought as a class action (in
which a claimant seeks to represent the legal interests of or
obtain relief for a larger group) . . . .”
In February 2016, Lawson sued ZB, N.A., named as CB&T
in the complaint, and its parent company, petitioner Zions
Bancorporation, for alleged Labor Code violations harming her
and other employees. Lawson’s complaint contains a single
cause of action brought under the PAGA. She alleges ZB failed
to provide overtime and minimum wages, meal and rest periods,
timely wage payments, complete and accurate wage statements,
complete and accurate payroll records, and reimbursement of
business-related expenses. As relevant here, Lawson’s
complaint seeks “civil penalties against [ZB], including unpaid
wages and premium wages per California Labor Code section
558.”2 (See §§ 558, 2699, subd. (a).)
In August 2016, ZB moved the trial court to compel
Lawson to individually arbitrate “her claim for victim-specific
relief under Labor Code § 558” and stay the civil action. ZB
maintained that Lawson’s employment agreement required her
2
Section 558, subdivision (a) provides: “Any employer or
other person acting on behalf of an employer who violates, or
causes to be violated, a section of this chapter or any provision
regulating hours and days of work in any order of the Industrial
Welfare Commission shall be subject to a civil penalty as follows:
[¶] (1) For any initial violation, fifty dollars ($50) for each
underpaid employee for each pay period for which the employee
was underpaid in addition to an amount sufficient to recover
underpaid wages. [¶] (2) For each subsequent violation, one
hundred dollars ($100) for each underpaid employee for each
pay period for which the employee was underpaid in addition to
an amount sufficient to recover underpaid wages. [¶] (3) Wages
recovered pursuant to this section shall be paid to the affected
employee.”
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to arbitrate all employment claims on an individual basis.
While recognizing the unenforceability of that agreement with
respect to “traditional PAGA penalties” under Iskanian, ZB
contended the “unpaid wages” Lawson sought, which section
558, subdivision (a)(3) requires be paid to “the affected
employee[s],” were something different: “victim-specific relief”
that ZB could require Lawson to arbitrate individually under
the FAA and AT&T Mobility LLC v. Concepcion (2011) 563 U.S.
333. In effect, ZB’s contention was that the “victim-specific
relief” that Lawson sought under section 558 was not part of “a
standard PAGA action” but remained a “claim . . . subject to
individual arbitration,” although the civil penalties available
under section 558 were not arbitrable. The trial court generally
agreed, bifurcating Lawson’s action and granting ZB’s motion to
compel arbitration of the “unpaid wages” issue.
But ZB got more than it bargained for in the process. In
the trial court’s view, the “unpaid wages” relief sought in
Lawson’s PAGA claim nevertheless required “representative”
adjudication since the “PAGA, by its very nature, is a
representative statute.” It therefore ordered the issue to
arbitration “as a representative action” for the unpaid wages of
all aggrieved ZB employees. ZB responded by filing both an
appeal and petition for writ of mandate with the Court of
Appeal. After consolidating the two, the appellate court
dismissed the appeal, holding that Code of Civil Procedure
section 1294 only gave it appellate jurisdiction over an order
dismissing, not granting, a motion to compel arbitration. ZB
does not request our review of that matter.
On the other hand, ZB persuaded the Court of Appeal to
issue the writ of mandate, but the court did so on a different
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Opinion of the Court by Cuéllar, J.
ground from the one ZB asserted. The appellate court concluded
that Lawson’s request for unpaid wages under section 558 in
fact could not be arbitrated at all. Relying on Thurman v.
Bayshore Transit Management (2012) 203 Cal.App.4th 1112(Thurman), the Court of Appeal interpreted section 558 to
expressly include “underpaid wages” within the scope of its “civil
penalty” provision. In the appellate court’s view, an employee
could pursue the entire, indivisible civil penalty through the
PAGA, and under Iskanian, her employer could not compel that
representative PAGA claim to arbitration. Our opinion in
Iskanian, it surmised, “made it clear that the distinction
between civil penalties and victim specific statutory damages
hinges in large measure on whether, prior to enactment of the
PAGA, they could only be recovered by way of regulatory
enforcement or whether they supported a private right of
action.” (Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, 724.)
Disagreeing with Esparza v. KS Industries, L.P. (2017) 13
Cal.App.5th 1228 (Esparza), the Court of Appeal concluded
section 558 previously lacked a private right of action. So, a
PAGA claim for the unpaid wages included in section 558’s civil
penalty came within Iskanian’s prohibition on predispute
waivers of such claims. The court then issued a writ of mandate
commanding the trial court to vacate its previous order and
enter a new order denying ZB’s motion to arbitrate.
We granted ZB’s petition for review to resolve the split of
authority over whether an employer may compel arbitration of
an employee’s PAGA claim requesting unpaid wages under
section 558.
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Opinion of the Court by Cuéllar, J.
II.
When it ordered the trial court to deny arbitration, the
Court of Appeal started from Thurman’s conclusion that section
558’s amount for unpaid wages is a civil penalty that employees
like Lawson can recover under the PAGA. To determine if this
interpretation is correct, we begin with a nuanced examination
of the PAGA, Labor Code civil penalties, and section 558.
The Legislature enacted the PAGA in 2003 after deciding
that lagging labor law enforcement resources made additional
private enforcement necessary “ ‘to achieve maximum
compliance with state labor laws.’ ” (Iskanian, supra, 59 Cal.4th
at p. 379, quoting Arias v. Superior Court (2009) 46 Cal.4th 969,
980 (Arias).) The PAGA therefore empowers employees to sue
on behalf of themselves and other aggrieved employees to
recover civil penalties previously recoverable only by the Labor
Commissioner — including those in section 558. (See § 2699,
subd. (a); Iskanian, at p. 381.) The PAGA also creates new civil
penalties, equally enforceable by aggrieved employees, for most
other Labor Code violations that previously did not carry such
penalties. (§ 2699, subds. (f), (g)(1); Iskanian, at pp. 379-380.)
All PAGA claims are “representative” actions in the sense
that they are brought on the state’s behalf. The employee acts
as “the proxy or agent of the state’s labor law enforcement
agencies” and “represents the same legal right and interest as”
those agencies — “namely, recovery of civil penalties that
otherwise would have been assessed and collected by the Labor
Workforce Development Agency.” (Iskanian, supra, 59 Cal.4th
at p. 380, quoting Arias, supra, 46 Cal.4th at p. 986.) The
employee may therefore seek any civil penalties the state can,
including penalties for violations involving employees other
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than the PAGA litigant herself. In Iskanian, we declared
unenforceable as a matter of state law an employee’s predispute
agreement waiving the right to bring these representative
PAGA claims. Requiring employees to forgo PAGA claims in
this way contravenes public policy by “serv[ing] to disable,”
through private agreement, one of the state’s “primary
mechanisms” for enforcing the Labor Code. (Iskanian, at p.
383.) We then concluded the FAA did not preempt this rule or
otherwise require enforcement of such a waiver in an arbitration
agreement. (See id. at pp. 384-389.)
But not all statutory remedies for Labor Code violations
are “civil penalties” recoverable in an employee’s PAGA action.
Civil penalties were “ ‘previously enforceable only by the state’s
labor law enforcement agencies’ ” before the PAGA. (Iskanian,
supra, 59 Cal.4th at p. 381.) That was because an action for civil
penalties “ ‘is fundamentally a law enforcement action designed
to protect the public and not to benefit private parties.’ ” (Arias,
supra, 46 Cal.4th at p. 986.) Other remedies, such as restitution
of unpaid wages, “ ‘were recoverable directly by employees well
before’ ” the PAGA.3 (Iskanian, at p. 381.) In addition, civil
penalties are “ ‘ “additional to actual losses incurred . . . .” ’ ”
(Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th
3
Employees could also directly recover statutory penalties,
as distinct from civil penalties, before the PAGA. (Iskanian,
supra, 59 Cal.4th at p. 381.) For example, under section 203, an
employer who willfully fails to pay wages owed to a discharged
employee must pay the employee a penalty equal to her daily
wages for up to 30 days. (Iskanian, at p. 381; § 203, subd. (a).)
Because neither party argues the “underpaid wages” in section
558 are a statutory penalty, we may confine our discussion to
distinguishing civil penalties from compensatory damages, such
as restitution of wages.
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1094, 1104 (Murphy).) They are intended “to punish the
employer” for wrongdoing, often “ ‘without reference to the
actual damage sustained . . . . ’ ” (Ibid.) Statutory damages, on
the other hand, primarily seek to compensate employees for
actual losses incurred, though like penalties they might also
“seek to shape employer conduct” as a secondary objective. (Id.
at p. 1112.)
Consider, for example, the remedies available when an
employer willfully pays a discharged employee less than the
minimum wage in her final paycheck. The employer violates —
among other provisions –– section 1182.12 for failing to pay her
the minimum wage, and section 201 for failing to pay her that
wage promptly upon discharge. (See §§ 1182.12, 201; see also
Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859,
867.) The Labor Code entitles the discharged employee to
compensatory relief in the form of unpaid wages.4 (See, e.g.,
§ 1194.) In addition, section 1197.1 subjects the employer to a
civil penalty of $100 for that pay period (or $250, if the employer
has previously failed to pay her the minimum wage). (Id., subd.
(a).)
Now consider the enforcement mechanisms available to
obtain these remedies. The employee may recover her unpaid
wages directly through a private civil action. (§ 1194, subd. (a).)
Alternatively, she may file a wage complaint with the Labor
Commissioner, seeking administrative relief. (See § 98; Post v.
4
The employee may also recover section 203’s statutory
penalty. (Id., subd. (b) [permitting employee to recover the
statutory penalty in a civil action]; Iskanian, supra, 59 Cal.4th
at p. 381.) That penalty is on top of the actual wages owed prior
to discharge.
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Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946
(Palo/Haklar).) Should the Labor Commissioner decide to act
on that complaint, the commissioner may “either accept the
matter and conduct an administrative hearing” to which the
employee is a party, or the commissioner may “prosecute a civil
action.” (Palo/Haklar, at p. 946; see also §§ 98, 98.3, 1193.6.)
Separate from processing an employee’s individual wage claim,
the Labor Commissioner may also enforce Labor Code
requirements by investigating and issuing a citation to the
employer through the Division of Labor Standards
Enforcement’s (DLSE) Bureau of Field Enforcement. (See
§§ 90.5, 1194.2, 1197.1.) So, the commissioner may pursue a
civil action or issue a citation to recover the unpaid wages
payable to the employee — just as the employee could recover
the wages through her private civil action or a section 98
administrative hearing (Berman hearing). (See §§ 98, 98.3,
1193.6, 1197.1.) The PAGA neither added to nor subtracted
from these procedures for securing employees’ unpaid wages.
With respect to civil penalties, however, the landscape was
quite different prior to enactment of the PAGA. Before the
PAGA was enacted, only the Labor Commissioner could also
seek civil penalties against the employer. (See § 1197.1;
Iskanian, supra, 59 Cal.4th at p. 378.) Now, the PAGA makes
civil penalties equally recoverable through a civil action brought
by an aggrieved employee. (§ 2699, subds. (a), (g)(1); see, e.g.,
Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th
542, 551.) Pursuing civil penalties does not prevent an employee
from separately or concurrently pursuing unpaid wages and
other remedies already available to her. (Id., subd. (g)(1).)
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Opinion of the Court by Cuéllar, J.
So how do we map this distinction between civil penalties
and statutory damages onto our understanding of the relief
available under section 558? The Legislature enacted section
558 as part of the Eight-Hour-Day Restoration and Workplace
Flexibility Act of 1999. (Stats. 1999, ch. 134, § 14; see, e.g.,
Bearden v. U.S. Borax, Inc. (2006) 138 Cal.App.4th 429, 434.)
The act sought to restore and protect the eight-hour workday
(see § 510) and overtime pay requirements. (See, e.g., Assem.
Com. on Appropriations, Analysis of Assem. Bill No. 60 (1999-
2000 Reg. Sess.) as amended Mar. 22, 1999, pp. 1-4; Bearden, at
p. 434.) Through section 558, the Legislature authorized the
Labor Commissioner to issue citations, including an assessment
of civil penalties, for overtime and other workday violations.
(See Legis. Counsel’s Dig., Assem. Bill No. 60 (1999-2000 Reg.
Sess.) 5 Stats. 1999, Summary Dig., p. 62.) Under section 558,
subdivision (a), any employer who violates these provisions
“shall be subject to a civil penalty as follows: [¶] (1) For any
initial violation, fifty dollars ($50) for each underpaid employee
for each pay period for which the employee was underpaid in
addition to an amount sufficient to recover underpaid wages. [¶]
(2) For each subsequent violation, one hundred dollars ($100) for
each underpaid employee for each pay period for which the
employee was underpaid in addition to an amount sufficient to
recover underpaid wages.” (Italics added.) The next paragraph
directs that “[w]ages recovered pursuant to this section shall be
paid to the affected employee.” (§ 558, subd. (a)(3).) For clarity,
we will refer to section 558’s fixed dollar amount ($50 or $100)
as its “fixed amount” and the “amount sufficient to recover
underpaid wages” as the “amount for unpaid wages” or “unpaid
wages.”
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Opinion of the Court by Cuéllar, J.
The amount of unpaid wages recovered through section
558 will vary by employee. The crux of the parties’ dispute
concerns whether this employee-specific amount is the kind of
“civil penalty” the PAGA and Iskanian contemplated the
employee pursuing on the state’s behalf — and whose recovery
Iskanian thus immunized from predispute waivers in
arbitration agreements.
III.
Initially, ZB argues that not all civil penalties are created
equal. ZB posits that the PAGA may well permit employees to
recover two distinct types of civil penalties: (1) “traditional” civil
penalties like section 558’s fixed amount; and (2)
“nontraditional” civil penalties, like unpaid wages under section
558, that are “victim specific” and were paid directly to the
employee before the PAGA. From ZB’s perspective, Iskanian
forbids predispute waivers of claims for the former; but
employers may require such waivers for the latter. (See
Esparza, supra, 13 Cal.App.5th at p. 1243 [“[a] determination
that an award of unpaid wages under Labor Code section 558 is
a civil penalty does not control how we interpret the term civil
penalty as it is used in the Iskanian rule”].) Alternatively, ZB
asserts that unpaid wages recovered through section 558 fail to
qualify as a civil penalty of either kind and are better
understood as compensatory damages. That would mean
Lawson cannot seek those unpaid wages in her PAGA action
since, as even Lawson concedes, the PAGA only creates a cause
of action for civil penalties. (See § 2699, subd. (a).) Lawson, in
contrast, urges us to read section 558’s reference to unpaid
wages as part of an integrated civil penalty recoverable under
the PAGA. Because section 558 has no private right of action
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and she can only seek its unpaid wages remedy through the
PAGA, Iskanian provides no basis for distinguishing it from any
other civil penalty “ ‘previously enforceable only by the state’s
labor law enforcement agencies.’ ” (Iskanian, supra, 59 Cal.4th
at p. 381.) That section 558 requires this amount to be paid to
the affected employee makes no difference, she says, since only
the Labor Commissioner could secure such payment for
employees prior to the PAGA.
We agree in part with Lawson: section 558 lacks a private
right of action. An aggrieved employee can make use of section
558’s remedy only when she acts as the state’s proxy — and
that’s a role she can play only through a PAGA action.
Nevertheless, a close, contextual analysis of the statutory
scheme reveals that the amount for unpaid wages referenced in
section 558 is not part of that section’s civil penalty and is not
recoverable through a PAGA action. Instead, as ZB says, this
part of a section 558 citation represents compensatory damages.
Section 558, in other words, authorizes only the Labor
Commissioner to issue a citation that includes both a civil
penalty and the same unpaid wages Lawson can alternatively
recover under section 1194 through a civil action or an
administrative hearing. But section 2699, subdivision (a) does
not authorize employees to collect section 558’s unpaid wages
through a PAGA action. This reading best harmonizes section
558 with the procedural provisions in section 1197.1, with
analogous remedies elsewhere in the Labor Code, and with the
broader enforcement scheme for unpaid wages. It also fits with
the understanding of the agency in charge of issuing these
citations, and with the relevant legislative history.
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Opinion of the Court by Cuéllar, J.
A.
We review the Court of Appeal’s interpretation of sections
2699, subdivision (a) and 558 de novo. (United Riggers &
Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th 1082,
1089 (United Riggers).) Statutory interpretation requires us “to
ascertain and effectuate the intended legislative purpose.”
(Ibid.) We consider the provisions’ language in its “broader
statutory context” and, where possible, harmonize that
language with related provisions by interpreting them in a
consistent fashion. (Ibid.) If an ambiguity remains after this
preliminary textual analysis, we may consider extrinsic sources
such as legislative history and contemporaneous administrative
construction. (See id. at p. 1093; Murphy, supra, 40 Cal.4th at
p. 1103.) Because statutes governing employment conditions
tend to have remedial purposes, we “liberally construe” them “to
favor the protection of employees.” (Augustus v. ABM Security
Services, Inc. (2016) 2 Cal.5th 257, 262 (Augustus); accord,
Murphy, supra, 40 Cal.4th at p. 1103; see also Sav-On Drug
Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 340.)
Lawson offers what appears to be, at first glance, a
plausible reading of the statute. Subdivision (a) of section 558
uses a familiar structure: identifying a class (“civil penalty”)
then using a colon to introduce the members of that class; or,
alternatively, identifying a term then using a colon to introduce
that term’s definition. Under this reading, “civil penalty” is the
class of remedy, while the fixed amount and unpaid wages are
members of that class: the employer “shall be subject to a civil
penalty as follows: [¶] . . . fifty dollars ($50) . . . in addition to an
amount sufficient to recover underpaid wages.” (§ 558, subd.
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(a)(1).) The lack of a comma between the fixed amount and the
amount for unpaid wages tends to support this reading.
But other language in the statute gives us reason to doubt
Lawson’s construction. Section 558, subdivisions (a)(1) and (2)
state that the “civil penalty” is “in addition to an amount
sufficient to recover underpaid wages.” (Italics added.) What
“in addition to” appears to indicate is that these provisions
subject the employer to a civil penalty on top of, not including,
an amount meant to compensate for unpaid wages. Moreover,
the “[w]ages recovered” through that amount “shall be paid to
the affected employee.” (§ 558, subd. (a)(3).) It is not unheard
of for the state to direct payment of civil penalties to private
citizens — this is precisely what the PAGA authorizes by
awarding aggrieved employees 25 percent of civil penalties
recovered. Yet this directive could suggest the unpaid wages
address the injury to the employee, compensating her for what
she’s lost, whereas civil penalties address the conduct of the
employer and so typically redound primarily to the state. In
Murphy, we suggested that where an ambiguous Labor Code
provision can plausibly be categorized as either employee-
focused or employer-focused, the former understanding better
reflects the principle of interpreting such provisions broadly in
favor of protecting employees. (See Murphy, supra, 40 Cal.4th
at p. 1104.) Just as Lawson’s reading finds support in the
language of section 558, so too, then, does ZB’s alternative
assertion that the better reading treats those monies collected
“to recover underpaid wages” as compensatory damages.
Indeed, a closely related statute deploys precisely the
same construction –– “in addition to an amount sufficient to
recover underpaid wages” — to introduce compensatory
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damages for unpaid wages, not civil penalties. Section 1197.1
sets out the procedures for issuing, contesting, and enforcing
judgments for citations issued under section 558. (See §§ 558,
subd. (b), 1197.1.) That section also provides its own civil
penalties, analogous to section 558’s, for minimum wage
violations. According to section 1197.1’s terms, an employer
who fails to pay minimum wage “shall be subject to a civil
penalty, restitution of wages, liquidated damages payable to the
employee, and any applicable penalties imposed pursuant to
Section 203 as follows: [¶] (1) For any initial violation that is
intentionally committed, one hundred dollars ($100) for each
underpaid employee for each pay period for which the employee
is underpaid. This amount shall be in addition to an amount
sufficient to recover underpaid wages, liquidated damages
pursuant to Section 1194.2, and any applicable penalties
imposed pursuant to Section 203.” (§ 1197.1, subd. (a)(1), italics
added.)
Section 1197.1 is remarkably similar in structure to
section 558. Like section 558, section 1197.1 authorizes the
Labor Commissioner to issue a citation that includes a fixed
component and an underpaid wages component (and also adds
liquidated damages and statutory penalty components). Section
1197.1 follows section 558 in providing for a graduated civil
penalty system for initial and subsequent violations.5 As in
5
“For each subsequent violation for the same specific
offense, two hundred fifty dollars ($250) for each underpaid
employee for each pay period for which the employee is
underpaid regardless of whether the initial violation is
intentionally committed. This amount shall be in addition to an
amount sufficient to recover underpaid wages, liquidated
damages pursuant to Section 1194.2, and any applicable
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section 558, section 1197.1 requires that amounts beyond its
fixed component “be paid to the affected employee.” (Id., subd.
(a)(3).) And citations under sections 558 and 1197.1 share the
same procedures for issuance, contest, and enforcement. (See
§ 558, subd. (b); compare ibid. with § 1197.1, subd. (b).)
Unlike section 558, section 1197.1’s punctuation and
parallelism make clear that the underpaid wages component of
its citation functions as relief in addition to civil penalties. Yet
the provisions’ overall similarities in structure and language
tend to support a conclusion that the Legislature’s broad
purpose was essentially the same in section 558. (See Winn v.
Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 161 (Winn)
[“We generally presume that when the Legislature uses a word
or phrase ‘in a particular sense in one part of a statute,’ the word
or phrase should be understood to carry the same meaning when
it arises elsewhere in that statutory scheme”].)
Admittedly, in some respects the analysis of section 1197.1
could conceivably cut the other way. Although distinguishing
the unpaid wages section 558 references from its civil penalty is
consistent with the statute’s language, why would the
Legislature communicate somewhat more obliquely in that
statute a delineation made clear in section 1197.1? But Lawson
gives us no reason to consider overtime violations “unique”
relative to minimum wage violations, so we have no basis to
conclude that the Legislature treated unpaid wages as a civil
penalty in one context but not the other. (See United Riggers,
supra, 4 Cal.5th at p. 1091.) In these circumstances, we think
certain quirks reflected in the statutes’ distinct legislative
penalties imposed pursuant to Section 203.” (§ 1197.1, subd.
(a)(2).)
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Opinion of the Court by Cuéllar, J.
histories, rather than any difference in underlying purpose,
explains the discrepancy. When the Legislature added section
558 to the Labor Code in 1999, it included both the fixed amount
and the amount for unpaid wages. Meanwhile, section 1197.1
as originally enacted, before it was amended in 2011, included
only a fixed component in its citation.6 A legislature
incrementally accomplishing what it has previously instituted
all at once might well express the same concept with more
clarity. (See United Riggers, supra, 4 Cal.5th at p. 1093
[“Different bills, drafted by different authors, passed at different
times, might well use different language to convey the same
basic rule, so the absence of an express limit in section 8814
need not imply a departure in meaning from other like
statutes”].) And, of course, the Legislature amended section
1197.1 to add unpaid wages and distinguish them from civil
penalties years after the PAGA’s passage, when the importance
of differentiating between the two was evident. In contrast,
section 558’s enacting Legislature likely did not foresee the
6
Prior to amendment in 2011, former section 1197.1,
subdivision (a), read: “Any employer or other person acting
either individually or as an officer, agent, or employee of another
person, who pays or causes to be paid to any employee a wage
less than the minimum fixed by an order of the commission shall
be subject to a civil penalty as follows: [¶] (1) For any initial
violation that is intentionally committed, one hundred dollars
($100) for each underpaid employee for each pay period for
which the employee is underpaid. [¶] (2) For each subsequent
violation for the same specific offense, two hundred fifty dollars
($250) for each underpaid employee for each pay period for
which the employee is underpaid regardless of whether the
initial violation is intentionally committed.” (Stats. 2003, ch.
329, § 8, p. 2677.)
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Opinion of the Court by Cuéllar, J.
ramifications of failing to emphasize the dual nature of section
558’s remedy.
Another reason cuts even more decisively in favor of
treating the amount for unpaid wages as something other than
civil penalties: its relationship with section 1197.1’s procedural
provisions. We must harmonize related statutes with each other
“so that all parts of the statutory scheme are given effect.”
(Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1090-1091;
accord, Winn, supra, 63 Cal.4th at p. 161.) Section 1197.1,
subdivision (c)(3) establishes a bond requirement for employers
petitioning for a writ of mandate to contest citations governed
by section 1197.1’s procedures. Legislators approved this bond
requirement in 2016 (Stats. 2016, ch. 622, § 1) to ensure that
unscrupulous employers cannot avoid paying withheld wages by
filing frivolous petitions. (See Assem. Com. on Labor and
Employment et al., Assem. Floor Analysis, 3d reading analysis
of Assem. Bill No. 2899 (2015-2016 Reg. Sess.) as amended May
4, 2016, pp. 1-2.) To have a petition heard, the employer must
post a bond with the Labor Commissioner “equal to the total
amount of any minimum wages, liquidated damages, and
overtime compensation that are due and owing as determined
pursuant to subdivision (b) of Section 558.”7 (§ 1197.1, subd.
(c)(3), italics added.) In turn, subdivision (b) of section 558
7
The use of the plural verb “are” in the relative defining
clause creates some ambiguity as to whether the adjectival
phrase “due and owing . . .” modifies only “overtime
compensation” or also “minimum wages” and “liquidated
damages.” (§ 1197.1, subd. (c)(3).) But whether we use the
series-qualifier principle or last antecedent rule (see, e.g., White
v. County of Sacramento (1982) 31 Cal.3d 676, 680-681), “due
and owing . . .” at least refers to overtime compensation.
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Opinion of the Court by Cuéllar, J.
explains that the commissioner may issue a citation when she
or he “determines that a person had paid or caused to be paid a
wage for overtime work in violation” of the law. (Italics added.)
The Legislature frequently uses “compensation” and “wage” as
synonyms for one another. (Murphy, supra, 40 Cal.4th at p.
1104, fn. 6.)
Reading the two statutes together supports a
straightforward conclusion: the citations issued under section
558 include some amount intended to compensate for a withheld
“wage for overtime work” — relief of the same class as
“minimum wages” and “liquidated damages” in section 1197.1,
subdivision (c)(3). And because we presume the Legislature
used the terms “wage” and “wages” consistently throughout
section 558, we may further conclude that the “amount
sufficient to recover underpaid wages” in subdivision (a) is the
same compensatory component of the citation that subdivision
(b) references. Moreover, section 1197.1, subdivision (c)(3)
instructs that the bond amount — which includes “overtime
compensation . . . due and owing as determined pursuant to
subdivision (b) of Section 558” — “shall not include amounts for
penalties.” (Italics added.) What follows from this language is
that “overtime compensation,” meaning the unpaid wages
assessed under section 558, does not “include [an] amount[] for
penalties.” (§ 1197.1, subd. (c)(3).) Nonetheless deeming the
unpaid wages in section 558 a civil penalty would render
subdivision (c)(3) of section 1197.1 internally inconsistent.
Construing the unpaid wages as compensatory relief that
an employee may not recover in a PAGA claim also avoids
another potential inconsistency between the PAGA and section
558. The PAGA requires 25 percent of civil penalties recovered
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Opinion of the Court by Cuéllar, J.
to go to aggrieved employees (§ 2699, subd. (i)), whereas section
558, subdivision (a)(3) requires 100 percent of any recovered
wages to be paid to the affected employee. Several courts of
appeal have come to different conclusions about which provision
controls the allocation of unpaid wages under section 558 when
recovered as civil penalties in a PAGA claim. (Compare
Zakaryan v. The Men’s Wearhouse, Inc. (2019) 33 Cal.App.5th
659, 673-674, review granted July 10, 2019, with Thurman,
supra, 203 Cal.App.4th at p. 1145.) If it were in the ambit of the
Legislature’s purpose for PAGA plaintiffs to recover unpaid
wages as civil penalties, it presumably would have addressed
this apparent conflict directly. But our holding today makes
clear the conflict is illusory, because unpaid wages are not
recoverable as civil penalties under the PAGA in the first place.
One final aspect of the Labor Code’s remedial scheme also
cuts against treating unpaid wages in section 558 as a civil
penalty. The “vast majority” of civil penalties in the Labor Code
are “fixed, arbitrary amount[s].” (Murphy, supra, 40 Cal.4th at
p. 1107; see, e.g., §§ 225.5, subd. (a), 226.3, 226.8, subd. (b),
1174.5, 1197.1, subd. (a).) The PAGA itself creates a similar
default civil penalty scheme: $100 for each aggrieved employee
per pay period for an initial violation and $200 for each
aggrieved employee per pay period for subsequent violations.
(§ 2699, subd. (f).) This suggests the Legislature understood
civil penalties to consist primarily of dollar-denominated fines.
In some cases, the Legislature does calculate a “civil penalty”
based partially on an employee’s unpaid wages. (E.g., §§ 210,
subd. (a)(2) [“two hundred dollars ($200) for each failure to pay
each employee, plus 25 percent of the amount unlawfully
withheld”], 225.5, subd. (b) [same], 230.8, subd. (d) [“a civil
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Opinion of the Court by Cuéllar, J.
penalty in an amount equal to three times the amount of the
employee’s lost wages and work benefits”].) What makes it
difficult to equate section 558 with those provisions is that none
of them describe a fixed amount “in addition to an amount
sufficient to recover underpaid wages” as sections 558 and
1197.1 do. Lawson makes no argument for analogizing section
558’s amount for unpaid wages to the relief in these statutes
rather than the “restitution of wages” in section 1197.1. Section
1197.1 has a closer relationship and parallel scheme, and shares
with section 558 a language construction appearing nowhere
else in the Labor Code.
Accordingly, what we conclude is that section 558
authorizes the Labor Commissioner to issue citations for a fixed
civil penalty amount “in addition to” a compensatory amount
“sufficient to recover underpaid wages.” Treating the amount
for unpaid wages in this way best harmonizes section 558’s
provisions with each other and with the broader statutory
scheme.
To the extent the statutory text is ambiguous, legislative
history likewise supports this interpretation. As we have
explained, the purpose of the PAGA was to authorize aggrieved
employees to seek civil penalties, which are distinctly an
interest of the state and were previously unrecoverable by
private parties. (Iskanian, supra, 59 Cal.4th at p. 381.)
Although the Legislature created section 558 five years before
the PAGA, it is notable that the enacting Legislature
characterized only the fixed amount as the new civil penalty it
was creating for the Labor Commissioner’s sole enforcement.
Legislative analyses of Assembly Bill No. 60 (1999-2000 Reg.
Sess.) consistently described the new section 558’s “civil
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Opinion of the Court by Cuéllar, J.
penalties” as “$50 per employee for each pay period for a first
violation of the overtime pay requirements of the bill, and $100
per employee for each pay period for subsequent violations.”
(Assem. Com. on Appropriations, Analysis of Assem. Bill No. 60
(1999-2000 Reg. Sess.) as amended Mar. 22, 1999, pp. 3-4;
Assem. Com. on Labor and Employment, Analysis of Assem. Bill
No. 60 (1999-2000 Reg. Sess.) as amended Mar. 15, 1999, p. 4;
Assem. Com. on Labor and Employment, Republican Analysis of
Assem. Bill No. 60 (1999-2000 Reg. Sess.) as amended Mar. 15,
1999, p. 15.) Analysis of a bill later amending section 558 did
the same — years after the significance of designating or failing
to designate something as a civil penalty would have been
apparent because of the PAGA. (Sen. Rules Com., Off. Of Sen.
Floor Analyses, 3d reading analysis of Assem. Bill No. 970
(2015-2016 Reg. Sess.) as amended Aug. 24, 2015, p. 2
[describing existing law].)
A contemporaneous internal DLSE memorandum on the
new law further supports our interpretation. The Labor
Commissioner’s memorandum characterized the unpaid wages
as the same compensatory relief already available to employees
through other means. A premise of its analysis was that section
558 established “a civil penalty citation system” as a “new
method for enforcing overtime obligations.” (Chief Counsel
Miles E. Locker and Labor Commissioner Marcy V. Saunders,
mem. to DLSE Professional Staff, Dec. 23, 1999.) A “citation”
could include: “1) a civil penalty that is payable to the State (set
for an initial violation, which we interpret as a first citation, at
$50 per employee per pay period for which the employee was
underpaid; and for a subsequent violation, at $100 per employee
per pay period in which the employee was underpaid), and 2) an
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Opinion of the Court by Cuéllar, J.
additional amount representing the unpaid overtime wages
owed to the employees, with any such wages that are recovered
to be paid by DLSE to the affected employees.” (Ibid., original
italics.) The commissioner praised that second part of the
citation as both “a significant enforcement mechanism” and “a
means of expeditiously pursuing the collection of unpaid
overtime wages.” (Ibid.) Expeditious, she meant, relative to
existing means of “enforcing a worker’s right to overtime
compensation”: DLSE could “still prosecute overtime violations”
through a civil action pursuant to section 1193.6 or a Berman
hearing. (Ibid.) But the citation power was important because
DLSE could issue citations without an advance hearing. (See
§ 558, subd. (b).) The commissioner, then, saw the amount
corresponding to unpaid wages as a faster means of collecting
the compensatory damages DLSE could already recover through
a civil action and that employees could pursue directly by
requesting a Berman hearing or filing a section 1194 claim.
Deeming the unpaid wages amount to be a civil penalty
despite the existing enforcement mechanisms for those wages
cannot be squared with the understanding of that term under
the PAGA. Civil penalties are an interest of the state.
Employees could not recover them until the PAGA authorized
aggrieved employees to do so as agents of the state. In contrast,
section 558’s amount for unpaid wages merely supplemented
pre-existing procedures available to employees for recovering
their individual unpaid wages. Contrary to Lawson’s
contentions, these features make the unpaid wages the Labor
Commissioner recovers under section 558 fundamentally
different from the civil penalties an employee recovers under the
PAGA. (See Iskanian, supra, 59 Cal.4th at p. 381.)
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Opinion of the Court by Cuéllar, J.
B.
Lawson takes a different view of section 558 and the
Legislature’s purpose in this context. As several courts of appeal
have reasoned or assumed, she urges us to conclude that a
straightforward reading of section 558 renders the amount for
unpaid wages a civil penalty. (See Thurman, supra, 203
Cal.App.4th at p. 1145; Bradstreet v. Wong (2008) 161
Cal.App.4th 1440, 1451, abrogated on other grounds by
Martinez v. Combs (2010) 49 Cal.4th 35; Jones v. Gregory (2006)
137 Cal.App.4th 798, 809, fn. 11, abrogated on other grounds by
Martinez, supra, 49 Cal.4th 35; Caliber Bodyworks, Inc. v.
Superior Court (2005) 134 Cal.App.4th 365, 378-379, 381.) She
also relies on dictum in Reynolds v. Bement (2005) 36 Cal.4th
1075 (Reynolds), abrogated on other grounds by Martinez,
stating the same. (Id. at p. 1089.)
Yet reading the relevant provisions in context, it becomes
clear that unpaid wages the Labor Commissioner recovers
through section 558 are separate from and additional to, rather
than thoroughly included within, the civil penalty a private
plaintiff may recover in a PAGA action. (See United Riggers,
supra, 4 Cal.5th at p. 1089 [“Our role in interpreting statutes is
to ascertain and effectuate the intended legislative purpose . . .
[and] constru[e] words in their broader statutory context”].)
Indeed, most of the cases Lawson cites did not have the benefit
of considering section 1197.1’s amended 2011 language, and
even the Thurman court had no opportunity to consider the 2016
amendment’s reference to “overtime compensation” under
section 558. (§ 1197.1, subd. (c)(3).) Moreover, we did not
squarely confront this issue in Reynolds, which concerned
whether employees could seek recovery from individual
25
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Opinion of the Court by Cuéllar, J.
corporate agents, not the nature of that recovery under section
558.8 (See Reynolds, supra, 36 Cal.4th at p. 1089.)
Lawson also stresses the Legislature’s presumed goals of
increasing the government’s authority to enforce existing and
newly enhanced overtime protections and deterring employer
violations of those protections. According to her, we must read
the amount for unpaid wages as a civil penalty in light of these
purposes. (See Home Depot, U.S.A., Inc. v. Superior Court
(2010) 191 Cal.App.4th 210, 225 [“ ‘Civil penalties are
inherently regulatory, not remedial,’ and are intended to secure
obedience ‘to statutes and regulations validly adopted under the
police power’ ”].) Yet even compensatory relief intended “first
and foremost to compensate employees for their injuries”
(Murphy, supra, 40 Cal.4th at p. 1111) may have an “incidental
behavior-shaping purpose” (id. at p. 1110). That the Legislature
or Labor Commissioner believed the amount for unpaid wages
would serve a compliance function does not necessarily make it
a civil penalty.
Nor do we find the conclusion we have reached — that
unpaid wages under section 558 must be distinguished from the
civil penalty aggrieved employees may recover under the PAGA
8
To the extent Thurman v. Bayshore Transit Management,
supra, 203 Cal.App.4th 1112, Bradstreet v. Wong, supra, 161
Cal.App.4th 1440, Jones v. Gregory, supra, 137 Cal.App.4th 798,
and Caliber Bodyworks, Inc. v. Superior Court, supra, 134
Cal.App.4th 365 are inconsistent with our holding that unpaid
wages under section 558 may not be recovered through a PAGA
action, we disapprove them. We also disapprove Zakaryan v.
The Men’s Wearhouse, Inc., supra, 33 Cal.App.5th 659, and
Mejia v. Merchants Building Maintenance, LLC (2019) 38
Cal.App.5th 723, to the extent they are inconsistent with this
holding.
26
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Opinion of the Court by Cuéllar, J.
— inconsistent with the Labor Code’s broader remedial purpose
or “the protection of employees” (Augustus, supra, 2 Cal.5th at
p. 262). The citation procedure meaningfully enhanced
enforcement of the Labor Code by establishing new civil
penalties for wage and hour violations while also accelerating
recovery of employees’ unpaid wages. The Legislature could
reasonably choose to make the former but not the latter
available under the PAGA, as other remedies were already
provided to resolve employees’ unpaid wage claims. (See ante,
at pp. 9-10.) This interpretation still lets employees pursue
those remedies alongside PAGA claims to obtain full recovery.
(See § 2699, subd. (g)(1).) As we explained in Arias, nonparty
employees may even use the proof of a Labor Code violation in a
successful PAGA action against an employer in a subsequent
action for “lost wages” and other “remedies in addition to civil
penalties.” (Arias, supra, 46 Cal.4th at p. 987.) Nonparty
employees are bound by the judgment in an action under the
PAGA, but only with respect to recovery of civil penalties. (Id.
at p. 986.) This is because the PAGA “authorizes a
representative action only for the purpose of seeking [civil]
penalties for Labor Code violations [citation], and an action to
recover civil penalties ‘is fundamentally a law enforcement
action,’ ” not one for the benefit of private parties. (Ibid.)
Yet there is no question that nonparty employees may
“invoke[e] collateral estoppel” in the future, “us[ing] the
judgment against the employer to obtain remedies other than
civil penalties for the same Labor Code violations.” (Id. at p.
987.) This limited, non-mutual issue preclusion is permissible
because the purpose of the underlying PAGA action itself is “to
protect the public, and the potential impact on remedies other
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Opinion of the Court by Cuéllar, J.
than civil penalties is ancillary to the action’s primary
objective.” (Ibid.) And our holding today tracks this distinction
in Arias between civil penalties and additional remedies
available under the Labor Code.
Finally, Lawson contends that unpaid wages recovered
under section 558 meet the definition of “civil penalty” because
prior to the PAGA, only the state could bring an action under
section 558. (See Iskanian, supra, 59 Cal.4th at p. 381.) Yet
while section 558 gave the state exclusive power to collect
unpaid wages through its citation procedure, we have already
explained that section 558 achieves the same result with respect
to unpaid wages as the private right of action under section
1194. So only the fixed amount qualifies as a “civil penalty.”
IV.
We now address the consequences of our holding for ZB’s
motion to compel arbitration. Iskanian established an
important principle: employers cannot compel employees to
waive their right to enforce the state’s interests when the PAGA
has empowered employees to do so. But for Iskanian to apply,
the state must in fact have delegated enforcement of its interests
to private citizens. The Legislature used the PAGA to delegate
enforcement of civil penalties. In contrast, we now hold that the
“amount sufficient to recover underpaid wages” authorized in
section 558, subdivision (a) constitutes compensatory relief –– a
type of recovery separate from its civil penalties. This reading
properly reflects both the PAGA’s purpose and section 558’s
purpose to enhance and streamline enforcement of the Labor
Code’s overtime and workday requirements.
When the Court of Appeal determined that the motion to
compel arbitration should have been denied, it was operating on
28
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Opinion of the Court by Cuéllar, J.
the faulty premise that section 558’s civil penalty includes
unpaid wages. Yet the court’s ultimate conclusion about ZB’s
motion was justified. We agree with the Court of Appeal that
section 558 has no private right of action. Nor can employees
recover the unpaid wages described in section 558 in a PAGA
claim — even though section 558 permits the Labor
Commissioner to include that amount in a citation. Simply put,
Lawson’s complaint alleges entitlement to relief she cannot seek
because she lacks a cause of action: an amount for unpaid wages
under section 558. ZB’s motion sought to compel arbitration of
only that impermissible request for relief rather than any valid
claim the court could compel to arbitration. Accordingly, while
we disagree with its reasoning, we conclude that the Court of
Appeal correctly granted ZB’s writ petition and ordered the trial
court to deny ZB’s motion to compel arbitration.
Given this conclusion, ZB has suggested the trial court
strike from the complaint Lawson’s allegation requesting
unpaid wages. (See Code Civ. Proc., § 436.) Lawson, for her
part, has indicated she would like to amend her complaint to
request unpaid wages under an appropriate cause of action.
(See id., § 472.) The trial court may consider these issues on
remand.
V.
An employee’s predispute agreement to individually
arbitrate her claims is unenforceable where it blocks an
employee’s PAGA claim from proceeding. But a PAGA claim
does not include unpaid wages under section 558. Because ZB’s
motion to compel arbitration concerned relief that was not
cognizable under the sole cause of action in Lawson’s complaint,
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Opinion of the Court by Cuéllar, J.
we affirm the judgment of the Court of Appeal and remand for
proceedings consistent with this opinion.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
30
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion ZB, N.A., and Zions Bancorporation v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 18 Cal.App.5th 705Rehearing Granted
__________________________________________________________________________________
Opinion No. S246711
Date Filed: September 12, 2019
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Joel M. Pressman
__________________________________________________________________________________
Counsel:
Rutan & Tucker, James L. Morris, Brian C. Sinclair and Gerard M. Mooney for Petitioners.
Greines, Martin, Stein & Richland, Robert A. Olson and Cynthia E. Tobisman for California New Car
Dealers Association as Amicus Curiae on behalf of Petitioners.
O’Melveny & Myers, Apalla U. Chopra, Andrew Lichtenstein, Adam J. Karr, Ryan W. Rutledge and Kelly
Wood for the Employers Group and California Employment Law Council as Amici Curiae on behalf of
Petitioners.
No appearance for Respondent Superior Court.
Altshuler Berzon, Michael Rubin, Kristin M. García; Lawyers for Justice, Edwin Aiwazian, Arby Aiwazian
and Joanna Ghosh for Real Party in Interest.
Bryan Schwartz Law, Bryan J. Schwartz, Logan T. Talbot, Eduard R. Meleshinsky, DeCarol A. Davis for
California Employment Lawyers Association as Amicus Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Brian C. Sinclair
Rutan & Tucker
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626-1931
(714) 641-5100
Michael Rubin
Altshuler Berzon
177 Post Street, Suite 300
San Francisco, CA 94108
(415) 421-7151