violation of public policy, count 12; wrongful termination in violation of Government
Code section 12900, count 13; PAGA claim for penalties (§ 2698 et seq.), count 14;
unfair business practices (Bus. & Prof. Code, § 17200), count 15.
Because Gavriiloglou had signed an arbitration agreement as a condition of her
employment, Prime Health filed a motion to compel arbitration of all Gavriiloglou’s non-
PAGA claims and to stay the litigation of Gavriiloglou’s PAGA claim (in both her
individual and representative capacities), which was granted. At the conclusion of the
arbitration hearing, the arbitrator issued a final award in the favor of Prime Health, in
which the arbitrator found that the alleged Labor Code violations did not occur.
Gavriiloglou filed a motion to vacate the arbitration award, which was denied.
“Prime [Health] then filed a motion for judgment on the pleadings on the PAGA claim. It
argued that the arbitrator’s ruling against Gavriiloglou on her Labor Code claims
established, as a matter of issue preclusion, that she was not an ‘aggrieved employee’
([§ 2699, subd. (a)]) and therefore she lacked standing to bring a PAGA claim. The trial
court granted judgment on the pleadings, without leave to amend. Accordingly, it entered
judgment against Gavriiloglou and in favor of Prime.” (Gavriiloglou, supra, 83
Cal.App.5th at p. 600.)
Gavriiloglou appealed that judgment; we affirmed the order confirming the
arbitrator’s award but reversed the order granting the judgment on the pleadings as to the
PAGA claims. (Gavriiloglou, supra, 83 Cal.App.5th at pp. 599, 607.) On January 11,
4
2023, the California Supreme Court denied Prime Health’s petition for review.
(Gavriiloglou v. Prime Healthcare Management, Inc. (Jan. 11, 2023, S277080)
___Cal.5th___ [2023 Cal. LEXIS 112].)
On April 9, 2024, Prime Health filed a renewed motion for judgment on the
pleadings, arguing that it was entitled to judgment in its favor on the ground of issue
preclusion, due to the issuance of two appellate court decisions from the Second District
Court of Appeal which disagreed with Gavriiloglou, supra, 83 Cal.App.5th 595 and the
intervening opinion of the Supreme Court in Adolph, supra, 14 Cal.5th 1104, which, it
argued, confirmed that our prior opinion misapplied the existing principles of law and
was wrongly decided. The trial court denied the motion based on the doctrine of law of
the case, concluding that the subsequent opinions in Rocha, supra, 88 Cal.App.5th 65 and
Rodriguez, supra, 106 Cal.App.5th 645 reflected a split of opinion and they were not
controlling authority, and that Adolph did not disapprove of Gavriiloglou.
On December 17, 2024, Prime Health filed the instant petition for writ of mandate,
seeking to overturn the trial court’s order denying its renewed motion for judgment on the
pleadings as erroneous. On March 30, 2025, we issued an order to show cause.
Gavriiloglou filed a response in lieu of a return and no traverse has been filed. We
granted Setareh Law Group leave to file an amicus brief on behalf of real party in
interest.2
2 Gavriiloglou incorrectly refers to herself a respondent in this proceeding, but the respondent is the Superior Court. Amicus Curiae states its brief was filed on behalf of respondent, but the points raised therein support the real party in interest, Gavriiloglou,
5
DISCUSSION
1. Gavriiloglou’s PAGA Claims
a. General Principles Relating to PAGA Claims
In 2003, the Legislature enacted PAGA to remedy “systemic underenforcement” of
the Labor Code. (Williams v. Superior Court (2017) 3 Cal.5th 531, 545.) At that time,
the Legislature declared that adequate financing of labor law enforcement was necessary
to achieve maximum compliance with state labor laws, that staffing levels for labor law
enforcement agencies had declined and were unlikely to keep pace with the future growth
of the labor market, and that it was therefore in the public interest to allow aggrieved
employees, acting as private attorneys general, to recover civil penalties for Labor Code
violations, with the understanding that labor law enforcement agencies were to retain
primacy over private enforcement efforts. (Stats. 2003, ch. 906, § 1; Arias v. Superior
Court (2009) 46 Cal.4th 969, 980–981 (Arias).)
To address enforcement problems of worker protections pre-PAGA, the
Legislature adopted a schedule of civil penalties “‘“significant enough to deter
violations”’” for those provisions that lacked existing noncriminal sanctions, and
deputized employees harmed by labor violations to sue on behalf of the state and collect
penalties, to be shared with the state and other affected employees. (Osuna v. Spectrum
Security Services, Inc. (2025) 111 Cal.App.5th 516, 524, citing Williams v. Superior
the plaintiff in the underlying action, given that the amicus curiae indicates it is a law firm that regularly represents plaintiffs, and its argument agrees with the position espoused by the real party in interest, Gavriiloglou, requesting that we affirm the holding of Gavriiloglou, supra, 83 Cal.App.5th 595.
6
Court (2017) 3 Cal.5th 531, 545.) Those deputized are referred to as “aggrieved
employee[s].” (See § 2699, former subd. (a).)
“A PAGA claim for civil penalties ‘“‘is fundamentally a law enforcement
action.’”’ [Citation.] ‘The ‘‘government entity on whose behalf the plaintiff files suit is
… the real party in interest.’” [Citation.] PAGA’s default civil penalties are thus
calculated ‘“to punish the employer” for wrongdoing’ [citation] and “‘to deter
violations”’ [citation] rather than “compensate employees for actual losses incurred.”
(Adolph, supra, 14 Cal.5th at p. 1117.) “Because an aggrieved employee’s action under
[PAGA] functions as a substitute for an action brought by the government itself, a
judgment in that action binds all those, including nonparty aggrieved employees, who
would be bound by a judgment in an action brought by the government.” (Arias, supra,
46 Cal.4th at p. 986.)
The action must be prosecuted by an aggrieved employee, which the statute
defines as follows: “For purposes of this part, “aggrieved employee” means any person
who was employed by the alleged violator and personally suffered each of the violations
alleged during the period prescribed under Section 340 of the Code of Civil Procedure,
except that for purposes of actions brought pursuant to paragraph (2), “aggrieved
employee” means any person who was employed by the alleged violator against whom
one or more of the alleged violations was committed within the period prescribed under
Section 340 of the Code of Civil Procedure.” (§ 2699, subd. (c)(1); Contreras v. Superior
1291, citing Di Genova v. State Board of Education (1962) 57 Cal.2d 167, 179–180.)
The law of the case doctrine also applies “where the point of law involved was
necessary to the prior decision and was “‘actually presented and determined by the
court.’”” (People v. Gray (2005) 37 Cal.4th 168, 197.) The “doctrine will not be adhered
to where its application will result in an unjust decision, e.g., where there has been a
‘manifest misapplication of existing principles resulting in substantial injustice’ [citation],
or the controlling rules of law have been altered or clarified by a decision intervening
between the first and second appellate determinations [citation]. The unjust decision
exception does not apply when there is a mere disagreement with the prior appellate
determination.” (People v. Stanley (1995) 10 Cal.4th 764, 787 (Stanley).)
In other words, more must be shown than that a court on a subsequent appeal
disagrees with a prior appellate determination. (Stanley, supra, 10 Cal.4th at p. 787,
citing People v. Shuey (1975) 13 Cal.3d 835, 846.)
Here, Prime Health argues that there has been an intervening change in the law to
avoid the application of the law of the case doctrine. It also argues that our prior holding
in Gavriiloglou, supra, 83 Cal.App.5th 595 is a misapplication of the law and that the
trial court erred in ruling that it was bound by the decision. We disagree.
The intervening change in the law exception does not apply here. First, the
decisions in Rocha, supra, 88 Cal.App.5th 65 and Rodriguez, supra, 106 Cal.app.5th 645
are not controlling authorities on the issue presented here under stare decisis. (Auto
19
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 (Auto Equity).) “Under
the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to
follow decisions of courts exercising superior jurisdiction.” (Id., at p. 455.) But the
decisions in Rocha and Rodriguez were issued by intermediate appellate courts, not by a
court exercising jurisdiction superior to our own; they are lateral or horizontal authorities
that simply disagree with Gavriiloglou, reflecting a potential split of authority.
“[B]ecause there is no ‘horizontal stare decisis’ within the Court of Appeal,
intermediate appellate court precedent that might otherwise be binding on a trial court
(see Auto Equity, supra, 57 Cal.2d at p. 455) is not absolutely binding on a different panel
of the appellate court. (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409.)
The absence of horizontal stare decisis means that the decisions of Rocha and
Rodriguez from the Second District Court of Appeal, represent at most a split of opinion,
do not justify a determination that the law of the case should not apply due to an
intervening change in the law. (Morohoshi, supra, 34 Cal.4th at pp. 491–492.) However,
in our view the two holdings are distinguishable from this case in a manner that precludes
application of the holdings of those cases to the facts before us.
In Rocha, the plaintiff brothers’ complaint did not include any PAGA cause of
action. The plaintiffs moved to amend their complaint to add a PAGA claim while the
employers’ motion to compel arbitration was pending, but that motion was denied
because the plaintiffs had not alleged facts giving them standing to seek PAGA relief, as
they were not suing on behalf of other former or current employees. (Rocha, supra, 88
Cal.App.5th at pp. 73–74.) The matter was thereafter ordered to arbitration, where the
20
arbitrator found in favor the employers on all counts. (Id., at p. 74.) The plaintiffs then
filed a motion to vacate the arbitrator’s award, but that motion was denied and, instead,
the court granted the employers’ motions for sanctions and to confirm the award, leading
to the plaintiffs’ appeal. (Id., at p. 75.)
On appeal, the issues presented for decision were limited to the denial of their
motion to file the proposed amended complaint (to add the PAGA claim), and the order
granting the employers’ motions to compel arbitration. (Rocha, supra, 85 Cal.App.5th at
p. 75.) There, disagreeing with our decision, Division One of the Second District Court
of Appeal held that the plaintiffs could not establish PAGA standing to bring a claim
based on Labor Code violations by U-Haul already alleged in the operative complaint,
“because the arbitrator’s finding that the brothers did not suffer a section 1102.5 violation
as alleged in the operative complaint precluded them from qualifying as ‘aggrieved
employees’ based on that same alleged violation. (Rocha, at p. 76.) It went on to state,
“Once the Labor Code violations based on which a plaintiff seeks to qualify for PAGA
standing have been finally adjudicated, the extent to which that adjudication prevents a
plaintiff from qualifying for standing will depend on general principles of issue
preclusion.” (Id., at pp. 77–78.) Because there was no pending PAGA claim, Rocha does
not support Prime Health’s claim that our prior decision is not law of the case.
In Rodriguez, where the employee’s non-PAGA claims were submitted for
arbitration while the PAGA claims were stayed, the reviewing court concluded that the
arbitrator’s findings on the individual non-PAGA claims precluded the employee from
litigating the PAGA claims. The reviewing court held the employee could no longer
21
establish standing as an “aggrieved employee,” adopting the approach taken by the Rocha
court, which had disagreed with our holding in Gavriiloglou. (Rodriguez, supra,106
Cal.App.5th at pp. 654, 656–657.) It did not address any authorities on the subject of
whether an arbitrator has authority to determine if an employee is an aggrieved employee,
or whether PAGA’s definition of aggrieved employee properly includes all employees
whose Labor Code claims are resolved unfavorably.
However, in Rodriguez, the employee had agreed to arbitrate the individual PAGA
claim, which did not occur here. Prime Health’s analyses ignore the fact that the
arbitrator found against Gavriiloglou on her individual Labor Code violations because it
agreed she was an exempt employee. But that determination is not tantamount to a
finding that the plaintiff is not an aggrieved employee within the meaning of the PAGA
statute. Nor could it be, where, as we have discussed, that gateway issue is a
nondelegable issue for the court to decide. (Contreras, supra, 61 Cal.App.5th at p. 477.)
“‘When the words are susceptible to more than one reasonable interpretation, we
consider a variety of extrinsic aids, including the statutory context and the circumstances
of the statute’s enactment, in determining legislative intent.’ [Citation.] We read the
statute as a whole in order to harmonize and give effect to all parts.” (Zalkind v.
Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1035.) We assume the Legislature is aware
of the various types of employees covered by the Labor Code, and, if it had intended to
limit PAGA to a specific type of employee, it knows how to do so. (See Zalkind, supra,
at p. 1035 [“When the Legislature intends the word ‘complaint’ to include ‘cross-
complaint,’ it says so”].)
22
“The term ‘employee’ is often statute-specific” (Brown v. City of Inglewood (2025)
18 Cal.5th 33, 42), and section 2699 includes its own definition of “aggrieved employee”
(§ 2699, subd. (c)), which does not require a “non-exempt employee” to raise the claim.
If the Legislature had intended to incorporate by reference the definitions of “employee”
found in other parts of the Labor Code, or if it intended to limit standing to non-exempt
employees, or to employees who are successful in arbitration of their individual Labor
Code violations, it could have said so. It did not.
Thus, while the arbitrator may have found Gavriiloglou to be an exempt employee
within the meaning of section 515, for purposes of rejecting her individual Labor Code
claims in arbitration, it is not a foregone conclusion that such a finding is preclusive
respecting the PAGA claims. This is particularly true considering the representative
nature of all PAGA claims, and the policy of permitting representative claims to proceed
judicially even in cases where the employee’s individual claims are subject to arbitration.
The inclusion in section 2699 of its own definition of “aggrieved employee,” which does
not incorporate by reference any other statutes governing exempt or nonexempt
employees under other portions of the Labor Code, undermines the authorities holding
that adverse findings in arbitration are entitled to preclusive effect.
The disagreement with our decision expressed by the courts in Rocha and
Rodriguez are inapposite. Further, if we were to follow those decisions, PAGA standing
can be undermined by an arbitrator even when no PAGA claim has been submitted for
arbitration, and nonindividual PAGA claims could elude judicial determination, contrary
to public policy in any case where individual claims—PAGA or otherwise—are referred
23
for arbitration. (Contreras, supra, 61 Cal.App.5th at p. 474.) “By virtue of an arbitration
to which it did not consent, the state will have lost one of its weapons in the enforcement
of California’s labor laws.” (Ibid.) ‘“Without the state’s consent, a predispute agreement
between an employee and an employer cannot be the basis for compelling arbitration of a
representative PAGA claim because the state is the owner of the claim and the real party
in interest, and the state was not a party to the arbitration agreement.” (Correia, supra,
32 Cal.App.5th at p. 622.)
There is nothing in the PAGA statutes that permits an arbitrator of alleged Labor
Code violations to decide the gateway determination of standing to pursue a PAGA claim
that was not submitted for arbitration. Its analysis does not recognize that insofar as
standing is a gateway issue to be decided by the court to preserve judicial determination
of the nonindividual claims litigation in a plaintiff’s representative capacity.
In any event, because one district court of appeal is not inferior to another, we are
not bound by the two decisions.
Finally, Prime Health argues that because the Supreme Court cited Rocha, supra,
88 Cal.App.5th 65 with approval in Adolph, supra, 14 Cal.5th 1104 the validity of our
holding in Gavriiloglou, supra, 83 Cal.App.5th 595 has been disapproved or overruled; it
also asserts that our decision conflicts with Adolph. It is mistaken.
First, because our prior opinion in Gavriiloglou, was not even mentioned in
Adolph, it is a misstatement to say that the decision in Adolph abrogated or disapproved
or nullified in any way our opinion. The Supreme Court was aware of our decision and
24
denied review, so it was aware of the case when it decided Adolph, and it did not take the
opportunity to express any disagreement with our opinion.
Moreover, the Adolph case addressed a situation that arose in the context of an
arbitration agreement in which the parties agreed that individual PAGA claims could be
submitted for arbitration, and it did so after the United States Supreme Court had ruled
that the holding of Iskanian, supra, 59 Cal.4th 348 was preempted as it pertained to
compelling arbitration of individual PAGA claims. (Adolph, supra, 14 Cal.5th at
pp. 1117–1118.) While the issue percolated its way to the California Supreme Court, the
United States Supreme Court issued its holding in Viking, requiring enforcement of
arbitration agreements to determine individual PAGA claims, while leaving intact that
portion of the Iskanian holding that representative or nonindividual PAGA claims could
not be dismissed just because they were representative. (Viking, supra, 596 U.S. at
pp. 662–663.)
Prime Health’s argument ignores a major distinguishing feature that undermines
its claim that the Supreme Court holding in Adolph is an intervening change in the law
affecting the validity of Gavriiloglou: the case before the Supreme Court involved an
arbitration agreement that included a complete waiver of PAGA claims, which the
Supreme Court held was enforceable only with respect to the individual PAGA claims,
leaving the nonindividual or representative PAGA claims untouched. If it had intended to
allow arbitration of the individual PAGA claims to have preclusive effect on the surviving
representative claims, we doubt it would have endorsed such a procedure, which renders
litigation of the representative claims superfluous.
25
In the present case there was no arbitration agreement to submit any PAGA claims
for arbitration (individual or nonindividual). Nothing in the Adolph, supra, 14 Cal.5th
1104, decision abrogates or calls into question, or even mentions our holding in
Gavriiloglou, supra, 83 Cal.App.5th 595, so it is a misstatement to say that our opinion
was affected by Adolph. Given the absence of authority for an “implied reversal” or
“implied disapproval,” we decline the invitation to hold that Adolph constitutes an
intervening change in the law as an exception to the law of the case doctrine, where the
holding was based on significant factual and procedural differences.
The arbitrator’s findings here were not preclusive as to the PAGA cause of action
because neither the individual nor the nonindividual PAGA claims were submitted to
arbitration. The arbitrator’s findings were not preclusive on whether Gavriiloglou has
standing as an aggrieved employee because the arbitration award contains no such
findings. Therefore, the arbitrator’s determination on the individual Labor Code
violations does not have preclusive effect on this case, and our decision in Gavriiloglou,
supra, 83 Cal.App.5th 595 stands, binding the trial court.
The law of the case doctrine was correctly applied by the trial court because it was
not invalidated by an intervening change in the law.
3. Whether Petitioner has Established Irreparable Harm
Gavriiloglou argues in her response to the petition for writ of mandate that Prime
Health has failed to demonstrate irreparable harm. We agree. We also find that the
petition does not demonstrate that there is no adequate remedy at law.
26
A writ of mandate or mandamus must be issued in all cases where there is not a
plain, speedy, and adequate remedy, in the ordinary course of law. (Code Civ. Proc.,
§ 1086.) “Although the statute does not expressly forbid the issuance of the writ if
another adequate remedy exists, it has long been established as a general rule that the writ
will not be issued if another such remedy was available to the petitioner.” (Flores v.
Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.) “A writ
of mandate must not be issued where the petitioner’s rights are otherwise adequately
protected.” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College
Dist. (2010) 189 Cal.App.4th 330, 336.)
In the present case, an action at law is currently pending in the superior court
involving the same issue: that is, whether Gavriiloglou is an aggrieved employee under
the PAGA law. As we have noted herein above that very issue is one which must be
decided as a gateway issue by means of a judicial finding. Therefore, there is an
adequate remedy at law.
Gavriiloglou also argues that Prime Health has not demonstrated irreparable harm.
Courts rarely grant extraordinary relief at the pleading stage of a lawsuit, but “mandamus
will lie when it appears that the trial court has deprived a party of an opportunity to plead
his cause of action or defense, and when extraordinary relief may prevent a needless and
expensive trial and reversal.” (Taylor v. Superior Court of Los Angeles County (1979)
24 Cal.3d 890, 894.)
Here, however, Prime Health’s petition does not include an allegation that it will
suffer irreparable harm or injury if denied extraordinary relief, although it does allege that
27
it ‘“would be compelled to go through a trial and appeal from a final judgment’ unless the
writ issues.” Nevertheless, “[a] trial does not generally meet the definition of ‘irreparable
injury,’ being at most an irreparable inconvenience.” (Ordway v. Superior Court (1988)
198 Cal.App.3d 98, 101, fn. 1.) Given that Prime Health’s main objection is that
Gavriiloglou lacks standing as an “aggrieved employee,” and given that her standing is a
gateway determination that must be made by the trial court, Prime Health has not
established a basis for extraordinary relief in mandate.
DISPOSITION
The petition for writ of mandate is denied. The order to show cause and the stay is
discharged with the finality of this opinion. Gavriiloglou shall recover her costs in this
writ proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
CERTIFIED FOR PUBLICATION
RAMIREZ P. J.
We concur:
MILLER J. FIELDS J.
28
AI Brief
AI-generated · verify before citing
Holding. The court held that its prior decision in Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595 constitutes the law of the case, and that an arbitrator's findings on an employee's individual Labor Code claims do not have preclusive effect on the employee's PAGA claims because the employee acts in a different capacity when representing the state.
Issues
Whether the trial court correctly applied the law of the case doctrine to deny a renewed motion for judgment on the pleadings.
Whether an arbitrator's findings on individual Labor Code claims preclude a plaintiff from pursuing PAGA claims as an 'aggrieved employee.'
Whether the Supreme Court's decision in Adolph v. Uber Technologies, Inc. constitutes intervening controlling law that overrides the prior appellate holding.
Disposition. denied
Quotations verified verbatim against the opinion
“The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”
“A judgment for or against a party in one right or capacity cannot affect him when acting in another right or capacity.”
“In the arbitration, Gavriiloglou was litigating her own individual right to damages for Labor Code violations, whereas in the present PAGA action, she is litigating the state’s right to statutory penalties for Labor Code violations.”