MARIO BARRERA, ET AL vs. APPLE AMERICAN GROUP, LLC, ET AL

The Petition to Confirm Arbitration Award is granted. The request for dismissal of plaintiff Francisco Varguez’s non-individual PAGA claims is denied.

Background

Plaintiffs Mario Barrera and Francisco Varguez commenced this action under the Private Attorneys General Act of 2006 (“PAGA”) to recover civil penalties for alleged violations of the Labor Code. On January 25, 2025, the parties filed a Stipulation and Order to compel Plaintiffs’ individual PAGA claims to arbitration and to stay Plaintiffs’ non-individual PAGA claims pending arbitration.

In the arbitration proceeding, Defendants filed a motion for judgment on the pleadings as to Varguez’s claims, arguing among other things that Varguez’s PAGA claim was barred by res judicata based on a final settlement in Maningas-Ng v. Apple American Group LLC, a Los Angeles Superior Court case, and that Varguez’s individual, non-PAGA claims were barred by the statute of limitations. In his Opposition, Varguez conceded the PAGA claims were barred except for the suitable seating claim. Varguez also argued that the statute of limitations had not lapsed because his claims related back to his December 31, 2020 Complaint in this case.

On September 23, 2024, the arbitrator issued an order granting the motion. The arbitrator concluded that Varguez’s suitable seating claim was precluded by the Maningas-Ng settlement. She also concluded that Varguez’s non-PAGA claims were time-barred because they were not brought to arbitration within three years following his termination as required under the parties’ arbitration agreement.

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Defendants requested that the Varguez Arbitration Order be applied equally to the arbitration involving Barrera. The arbitrator granted Defendants’ request in an order dated December 6, 2024, and dismissed Barrera’s claims.

Barrera moved for an order vacating the Barrera Arbitration Order. The Court granted the motion by order entered May 6, 2025. The Court concluded that “the arbitrator committed clear legal error with respect to her ruling that Barrera’s PAGA claim was barred by res judicata.” Although the Court found no “clear legal error” with respect to the statute of limitations portion of the Order, the Court was required to vacate the entire Order. It ordered a rehearing of Barrera’s claims before a new arbitrator.

Defendants have now moved for an order confirming the arbitration award against Varguez. In opposition, Varguez argues that “the Court should deny the petition, vacate the Varguez Arbitration Order in its entirely, and remand for rehearing before a new arbitrator—the same relief this Court already granted to Plaintiff Barrera.”

Confirmation of Arbitration Award

As explained in Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 945-946: ... A party seeking to confirm the arbitral award may file a petition within four years of the service of the final award. (Code Civ. Proc., § 1288.) A party seeking to vacate the arbitral award, however, has much less time. A request to vacate may be made either in a petition to vacate (id., § 1285) or in a response to the petition to confirm (id., § 1285.2). Regardless of the method, the [California Arbitration] Act imposes the same deadline: “A petition to vacate an award...shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner” (id., § 1288), and identically, “a response requesting that an award be vacated...shall be served and filed not later than 100 days after the date of service of a signed copy of the award” on the respondent (id., § 1288.2).

(Brackets omitted.) The arbitrator issued the Varguez Arbitration Order on September 23, 2024. According to the Petition, a signed copy of the Order was served on that same date. (Petition ¶9b.) Varguez did not seek to vacate the Varguez Arbitration Order within 100 days. He relies upon the Supreme Court’s holding in Law Finance Group that “section 1288.2’s deadline for seeking vacatur of an arbitral award is a nonjurisdictional statute of limitations that is subject to equitable tolling and equitable estoppel.” (Id. at 959-960.)

Equitable Tolling

Varguez has not established any basis for finding that equitable tolling extends the 100- day period to challenge the Varguez Arbitration Order. The delay (the “procedural detour”) in the arbitration going forward has nothing to do with Varguez’s failure to challenge the Order within 100 days. With respect to Varguez’s argument that the 100-day period was equitably tolled by virtue of Barrera’s filing of his petition to vacate the award against him, the 100-day period had already expired before Barrera filed his petition. Therefore his petition provides no basis for tolling the 100-day period for Varguez. Equitable Estoppel

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Varguez has not established any basis for finding that Defendants are equitably estopped from asserting the 100-day period. With respect to Defendants’ concession that the California Arbitration Act and not the Federal Arbitration Act governs this proceeding, Varguez offers no explanation for why the position previously taken by Defendants caused him not to challenge the Varguez Arbitration Order within 100 days. With respect to Defendants’ alleged “delay” in seeking to confirm the Varguez Arbitration Order, they are expressly allowed by statute up to four years to seek confirmation.

Non-Individual PAGA Claims

Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 does not support Defendants’ argument that the non-individual PAGA claims must be dismissed since Varguez’s individual PAGA claims are time-barred. Defendants point to the Court’s discussion at pages 1123-1124, which showed that if the arbitrator determined Adolph was not an aggrieved employee and the court confirmed that determination and reduced it to a final judgment, then Adolph could no longer prosecute his non-individual claims due to lack of standing. As will be discussed, it has not been determined that Varguez was not an aggrieved employee when he filed this action.

In Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 929, the Court of Appeal held that “an employee, whose individual claim is time-barred, may still pursue a representative claim under PAGA.” The Court explained:

...Johnson is an “aggrieved employee” with standing to pursue her PAGA claim. Johnson alleged she is employed by Maxim and that she personally suffered at least one Labor Code violation on which the PAGA claim is based. The fact that Johnson’s individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip Johnson of her standing to pursue PAGA remedies. ...

(Id. at 930, citation omitted.) At the time Adolph and Johnson were decided, “’aggrieved employee’ meant anyone who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (California Practice Guide: Employment Litigation (TRG 2026) § 17:776, citation omitted.) However, “[f]or claims filed on or after June 19, 2024, the term now means ‘any person who was employed by the alleged violator and personally suffered each of the violations alleged during the period prescribed under CCP § 340. ...” (Ibid., citation omitted.) The authors of California Practice Guide: Employment Litigation explain:

Effect of time-barred claims: Under the prior version of the PAGA, the fact that individual claims were time-barred did not strip plaintiff of standing to pursue PAGA remedies on behalf of others (see Johnson[, supra] 66 CA5th 924, 930...). The PAGA amendments apparently are designed to legislatively overrule the holding in Johnson. Now, the employee must have ‘personally suffered each of the violations alleged during the period prescribed under Section 340 of the Code of Civil Procedure.’” ...

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(Ibid.) While Varguez would not be an aggrieved party had he filed his action after June 19, 2024, it has not been shown that he was not an aggrieved party when he filed this action and proceeded to arbitration. Therefore he has standing to pursue the non-individual PAGA claims.

In reply, Defendants cite Williams v. Alacrity Solutions Group, LLC (2025) 110 Cal.App.5th 932. The Court of Appeal in that case disagreed with Johnson and held that “[t]o be a PAGA plaintiff (under the statute in effect prior to July 1, 2024), a private individual must, among other things, seek to recover civil penalties on his own behalf for that violation, and must establish that this so-called ‘individual claim’ is timely as to at least one Labor Code violation. ...” (Id. at 937.) The Supreme Court has granted review. “Pending review and filing of the Supreme Court’s opinion, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter has no binding or precedential effect, and may be cited for persuasive value only. ...” (Cal.

Rule of Court 8.1115(e)(1).) The Supreme Court has not ordered that the relevant portion of the Williams opinion has a binding or precedential effect. Therefore, while the opinion could have been persuasive in the absence of binding or precedential authority, here the Johnson case is such authority.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for September, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1615487764?pwd=Ob4B5J7LLKcpnkxzJjjEOSHNzEGafG.1

Meeting ID: 161 548 7764 Passcode: 502070

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov