Kaplan v. The Oakland Raiders etc. CA1/1

Filed 2/1/21 Kaplan v. The Oakland Raiders etc. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

BRADLEY KAPLAN, Plaintiff and Respondent, A160773 v. THE OAKLAND RAIDERS AND (Alameda County RAIDERS FOOTBALL CLUB, Super. Ct. No. RG19043119) LLC, Defendants and Appellants.

The Oakland Raiders and Raiders Football Club, LLC (collectively, the Raiders) appeal from a trial court order denying their petition to compel Bradley Kaplan to arbitrate his representative Private Attorney General Act of 2004 (PAGA) claims. (Lab. Code, § 2699 et seq.; Civ. Proc. Code, § 1294, subd. (a).)1 They contend the trial court erred in finding that an agreement by Kaplan to arbitrate his PAGA claims was unenforceable, because it was made without the state’s consent. We find no error and affirm. I. BACKGROUND The Raiders operate a professional football team, and Kaplan was hired as a talent scout. Kaplan’s employment contract contained an arbitration

All statutory references are to the Labor code unless otherwise 1

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clause requiring him to arbitrate “all matters in dispute” between him and the Raiders. Under the clause, Kaplan waived his right to commence or participate in a representative or class action. This waiver, however, included an exception that stated, “[Kaplan] and [the Raiders] may bring a representative action under any statute wherein their rights to bring such representative action are deemed unwaivable (such as the Private Attorneys General Act of 2004), but [Kaplan] and [the Raiders] must bring such claims in arbitration.” Thus, the contract allowed Kaplan to bring a PAGA claim, but only in an arbitration proceeding. Kaplan’s employment ended in June 2019. A few months later, Kaplan submitted a claim to the Labor Workforce Development Agency alleging that the Raiders had violated the Labor Code. Our record does not indicate whether the agency notified Kaplan that it would investigate the claim. In November 2019, Kaplan sued the Raiders. The suit included various individual claims alleging wrongful termination. It also included claims alleging that the Raiders wrongfully failed to pay wages and required employees to sign overbroad confidentiality and non-disparagement agreements intended to prevent employees from whistleblowing about work conditions. Kaplan claimed he was an aggrieved employee, entitled to seek civil penalties in a representative capacity under PAGA (§ 2698 et seq.). The Raiders petitioned the trial court to compel Kaplan to arbitrate his claims. The trial court granted the petition as to all of the claims except those brought under PAGA. It concluded that “[a]ctions under PAGA are in nature of a qui tam proceeding in that plaintiffs seek civil penalties that would otherwise be recoverable by the [state] . . . . An employee cannot agree to arbitrate PAGA claims because, before notice to the state and an opportunity for the state to investigate, the employee has no actual or 2