Filed 12/15/25 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PRIME HEALTHCARE MANAGEMENT, INC., et al., E085200 Petitioner, (Super.Ct.No. CIVDS1709515) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,
Respondent;
ELENI GAVRIILOGLOU,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Donald R. Alvarez,
Judge. Petition denied.
Morgan, Lewis & Bockius, Jennifer B. Zargarof, Samson C. Huang, Joseph Bias
and Thomas M. Peterson for Petitioner.
No appearance for Respondent.
The Law Offices of Gavril T. Gabriel, Gavril T. Gabriel, Athina Kotsia, Nikolaos
Kefallonitis and Sherri Davoodifard for Real Party in Interest.
1 Setareh Law Group, Shaun Setareh and Thomas Segal as Amicus Curiae on behalf
of Real Party in Interest.
Eleni Gavriiloglou brought this action against her former employer, Prime
Healthcare Management, Inc. (Prime Health) and its alleged alter egos, asserting, among
other things, (1) individual claims based on Labor Code violations and (2) individual and
representative claims for civil penalties for Labor Code violations under the Labor Code
Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.).1 Pursuant to
an arbitration agreement, all non-PAGA Labor Code claims were arbitrated, and the
PAGA claim (both the individual and representative claims) were stayed. The arbitrator
found in favor of Prime Health on all the alleged Labor Code violations and the trial court
confirmed the award and granted judgment on the pleadings against Gavriiloglou on her
PAGA claim, ruling that the arbitrator’s findings established that she was not an
“aggrieved employee” within the meaning of PAGA and therefore she lacked standing to
bring a PAGA claim.
Gavriiloglou appealed, and in that proceeding, we affirmed the denial of her
petition to vacate the arbitration award but reversed the ruling that the arbitration award
barred her PAGA claim. (Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83
Cal.App.5th 595, 599, 607 review denied Jan. 11, 2023, S277080 (Gavriiloglou).)
Subsequently, Prime Health filed a renewed motion for judgment on the pleadings
arguing that since the date of our opinion, two other courts of appeal have disagreed with
1 All further statutory references are to the Labor Code unless otherwise specified.
2 our holding (see Rocha v. U-Haul Co. of California (2023) 88 Cal.App.5th 65, 79–82
(Rocha), and Rodriguez v. Lawrence Equipment, Inc. (2024) 106 Cal.App.5th 645, 657–
658 (Rodriguez)), and that the Supreme Court had established that Gavriiloglou was
wrongly decided in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1124
(Adolph), although the Adolph decision, which was filed well after Gavriiloglou, did not
mention it.
The trial court denied the renewed motion for judgment on the pleadings on the
ground that our prior opinion in Gavriiloglou, supra, 83 Cal.App.5th 595 was law of the
case, and Prime Health filed this petition for extraordinary relief. In its petition, Prime
Health argues the law of the case doctrine was erroneously applied because Adolph,
supra, 14 Cal.5th 1104 constitutes intervening controlling law and that the trial court
erred in failing to follow the “controlling” decisions of courts having superior
jurisdiction. We deny the petition.
BACKGROUND
On May 22, 2017, Gavriiloglou filed a complaint, asserting causes of action
against Prime Health Hospital Business Services, Inc., and Dr. Prem Reddy (collectively
Prime Health) for: failure to provide meal and rest periods (§ 226.7), count 1; failure to
pay overtime (§ 510), count 2; failure to provide all wages due at termination (§ 201),
count 3; waiting time penalties (§ 203), count 4; failure to produce an employee file
(§ 1198.5), count 5; misclassification as exempt (§ 515), count 6; discrimination,
harassment, and retaliation, count 7; failure to prevent discrimination, harassment, and
retaliation, count 8; failure to provide reasonable accommodation, count 9; failure to
3 engage in the good faith interactive process to determine effective reasonable
accommodation, count 10; retaliation (§ 1102.5), count 11; wrongful termination in
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
Court (2021) 61 Cal.App.5th 461, 469 (Contreras).)
7 In Contreras, the petitioners filed suit under PAGA, alleging the employer
misclassified them and others as independent contractors, thereby violating multiple
provisions of the Labor Code. The employer “moved to compel arbitration based on
agreements petitioners had signed at the beginning of their employment. The trial court
granted the motion, ordering into arbitration ‘the issue of arbitrability’ of petitioners’
suit—whether they are ‘aggrieved employees’ entitled to raise PAGA claims.”
(Contreras, supra, 61 Cal.App.5th at pp. 465–467.)
The employees in Contreras filed a petition for writ of mandate, and the Second
District Court of Appeal, Division Five, granted the writ, holding that, “Under that case
law and in light of the very nature of a PAGA claim, a court—not an arbitrator—must
decide all aspects of the claim. The only exception is when the state, as real party in
interest, has consented to arbitration. The state did not consent here.” (Contreras, supra,
61 Cal.App.5th at p. 468.) The court reasoned that the arbitrability of a portion of a
PAGA claim presented a legal question that lies at the intersection of California labor and
arbitration law, and rests on a legal determination whether a plaintiff in a PAGA action is
an independent contractor or an aggrieved employee. (Ibid., citing Provost v.
YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 995, review den. Jan. 20, 2020, D076569
[“Here, we apply a de novo standard of review because the denial of arbitration of the
‘individual’ claim—whether Provost is an independent contractor or an ‘aggrieved
employee,’ with standing under section 2699, subdivisions (a) and (c)—rests on a
determination of the law”].)
8 The Contreras court, thus concluded that a PAGA plaintiff may not be compelled
to arbitrate whether he or she is an aggrieved employee. (Contreras, supra, 61
Cal.App.5th at p. 477.) Although Contreras was decided before the decisions in Viking
River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking), which we discuss more fully
below, and Adolph were issued, and although it relied on Iskanian v. CLS Transportation
Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which was disapproved in part in
Viking, it retains validity in cases such as this where the employment agreement does not
compel arbitration of the PAGA claims—individual or nonindividual. More to the point,
the Contreras decision it was not mentioned, much less disapproved, by Adolph.
As in Contreras, supra, 61 Cal.App.5th 461 the findings made by the arbitrator
against Gavriiloglou on most of the Labor Code violations were grounded on the
arbitrator’s determination that Gavriiloglou was an exempt employee. There was no
finding on the question of whether Gavriiloglou qualifies as an aggrieved employee.
Like the plaintiffs in Contreras, Gavriiloglou was entitled to have all the PAGA claims
resolved judicially, including the “gateway” issue of whether Gavriiloglou qualifies as an
aggrieved employee under the PAGA statute.
The rationale for this approach still holds for any case in which the employee has
not agreed to arbitrate any aspect of his or her potential PAGA claims. “Every PAGA
claim is a ‘“dispute between an employer and the state.”’ [Citation.] ‘A PAGA claim is
legally and conceptually different from an employee’s own suit for damages and statutory
penalties. An employee suing under PAGA “does so as the proxy or agent of the state’s
labor law enforcement agencies.”’” (Contreras, supra, 61 Cal.App.5th at p. 469.)
9 The United States Supreme Court explained the two different ways in which
PAGA actions are ‘“representative,”’ indicating that in one sense, PAGA actions are
‘representative’ because “they are brought by employees acting as representatives—that
is, as agents or proxies—of the State.” (Viking, supra, 596 U.S. at p. 648.) The court
stated that in this sense, every PAGA action is representative “because every PAGA claim
is asserted in a representative capacity.” (Ibid.)
In the second sense, the word “representative” is used to distinguish so-called
“individual” PAGA claims, which are based on Labor Code violations sustained by the
plaintiff, from “representative” PAGA claims, which are based on Labor Code violations
involving employees other than the plaintiff. (Viking, supra, 596 U.S. at p. 648.) The
United States Supreme Court thereafter used the term ‘“individual PAGA claim’ to refer
to claims based on code violations suffered by the plaintiff.” (Id. at pp. 648–649;
Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 647.) Both the individual
and nonindividual PAGA claims are brought in a representative capacity, in which the
employee acts as “a proxy or agent’” for the Labor and Workforce Development Agency
(LWDA). (Adolph, supra, 14 Cal.5th at pp. 1113, 1116.)
In Viking, the United States Supreme Court held that the FAA preempted the rule
of Iskanian, supra, 59 Cal.4th at page 387, insofar as it precluded division of PAGA
actions into individual and nonindividual claims through an agreement to arbitrate, such
that Viking was entitled to compel the employee’s individual PAGA claim to arbitration.
(Viking, supra, 596 U.S. at p. 662.) It further concluded that “PAGA provides no
mechanism to enable a court to adjudicate nonindividual PAGA claims once an individual
10 claim has been committed to a separate proceeding. Under PAGA’s standing
requirement, a plaintiff can maintain non-individual PAGA claims in an action only by
virtue of also maintaining an individual claim in that action.” (Id., at p. 663, citing
§ 2699, subds. (a), (c).)
For this reason, the court in Viking upheld the validity of that portion of the rule of
Iskanian regarding the continued validity of the nonindividual claims, ruling that they
may not be dismissed simply because they are “representative.” (Viking, supra, 596 U.S.
at p. 663.) If the nonindividual claims could be dismissed in that manner, the result
would be a prohibition of representative (i.e., nonindividual) claims altogether, which
would frustrate the objectives of PAGA and run contrary to public policy and
unenforceable as a matter of state law. (Adolph, supra, 14 Cal.5th at p. 1118, citing
Iskanian, supra, 59 Cal.4th at p. 384 [noting “Viking River also left this rule intact”].)
While the individual PAGA claim may be arbitrated, the issue of whether it is
subject to arbitration must be determined by the trial court, which must review the
complaint to determine if arbitrable individual claims are alleged. (Rodriguez v. Packers
Sanitation Services LTD, LLC (2025) 109 Cal.App.5th 69, 80, review granted May 14,
2025, S290182.) In other words, the determination of whether individual claims are
subject to arbitration requires a judicial determination, and is not subject to a
determination by the arbitrator.
b. Analysis
Here, not even the individual PAGA claims were subject to arbitration under the
arbitration agreement, and the arbitrator’s award does not address any issue, including
11 any gateway issue, relating to the PAGA claims. Because the preliminary or “gateway”
issue of the employee’s standing as an “aggrieved employee” is an integral part of the
representative PAGA claim and because a gateway issue subject to judicial determination,
any determination by the arbitrator that employee is not aggrieved would have no binding
effect on the court in adjudicating the PAGA claim. It follows that where the arbitrator
was not tasked with deciding whether the employee was aggrieved or not, and made no
express finding on that issue, the arbitrator’s findings are not binding on the judicial
determination of the PAGA claims. This is because the employee in the PAGA claims,
both individual and nonindividual, was acting in a representative capacity on behalf of
the state agency, as we explained in Gavriiloglou, supra, 83 Cal.App.5th 595.
“The ‘government entity on whose behalf the plaintiff files suit is always the real
party in interest.’” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.)
To permit the arbitration of elements or components of the nonindividual PAGA claim,
would result in the loss of one of its weapons in the enforcement of California’s labor
laws. Other cases are in accord. ‘“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.”’ (Contreras, supra,
61 Cal.App.5th at p. 474, quoting Correia v. NB Baker Electric, Inc. (2019) 32
Cal.App.5th 602, 622 (Correia).)
For these reasons, we conclude that individual PAGA claims may be subject to
arbitration, but that, under the holding of Adolph, the arbitration of those claims does not
12 strip a plaintiff of standing as an aggrieved employee to litigate nonindividual claims on
behalf of other employees under PAGA. (Adolph, supra, 14 Cal.5th at p. 1114.)
Additionally, insofar as Prime Health appears to assert that the adverse findings on the
Labor Code violations are tantamount to a gateway finding on the viability of the PAGA
claims, that is, whether Gavriiloglou was an aggrieved employee for purposes of the
pursuing the nonindividual claims, such a premise would render PAGA toothless, and it
finds no support in the provisions of PAGA or the existing body of case law requiring a
judicial determination on that point.
We now turn to Prime Health’s argument that the trial court erred in concluding
that our holding in Gavriiloglou, supra, 83 Cal.App.5th 595 was law of the case as to
Gavriiloglou’s standing to pursue the PAGA claims following the adverse arbitration
award on the alleged Labor Code violations.
2. Did the Trial Court Commit Error When It Concluded that the Holding of
Gavriiloglou, Was Law of the Case?
Prime Health argues that extraordinary relief is warranted because the trial court
erroneously concluded that our prior holding in Gavriiloglou, supra, 83 Cal.App.5th 595
was law of the case in denying Prime Health’s renewed motion for judgment on the
pleadings. Specifically, Prime Health relies on two intermediate appellate decisions from
the Second District Court of Appeal, which disagreed with Gavriiloglou (Rocha, supra, 8
Cal.App.5th 65 & Rodriguez, supra, 106 Cal.App.5th 645), and the subsequent opinion in
Adolph, supra, 14 Cal.5th 1104, which does not mention Gavriiloglou, to argue that
Gavriiloglou has been disapproved, and that the arbitrator’s findings on the non-PAGA
13 claims have preclusive effect on Gavriiloglou’s ability to pursue the PAGA claims. We
disagree.
““‘The doctrine of ‘law of the case’ deals with the effect of the first appellate
decision on the subsequent retrial or appeal: 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.’”” (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127, quoting Morohoshi v.
Pacific Home (2004) 34 Cal.4th 482, 491 (Morohoshi).)
“The doctrine applies only to a decision of an appellate court in the same case.
Final decisions or rulings of a trial court in a separate case, or in various independent
stages of a proceeding, are governed by the distinct principle of res judicata.” (9 Witkin,
Cal. Procedure (6th ed. 2023) Appeal, § 481.) The doctrine also applies to the Supreme
Court even when the previous appeal was before a Court of Appeal. (Morohoshi, supra,
34 Cal.4th at p. 491; Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434.)
Like res judicata, the doctrine of the law of the case promotes finality of litigation
by preventing a party from relitigating questions previously decided by a reviewing court.
(George Arakelian Farms v. Agric. Labor Rels. Bd. (1989) 49 Cal.3d 1279, 1291.)
a. Res Judicata, Claim Preclusion, and Issue Preclusion
Prime Health argues that Gavriiloglou’s standing to pursue any PAGA claim is
precluded by the adverse findings by the arbitrator on her individual state law claims. We
disagree, first because the principles of claim preclusion are inapplicable, and second,
14 because PAGA requires a judicial determination of the elements of the nonindividual, or
representative, claim.
‘“[R]es judicata”’ is an umbrella term encompassing both claim preclusion and
issue preclusion, which has been described as two separate ‘“aspects”’ of an overarching
doctrine. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–824 (DKN
Holdings); Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 604
(Teitelbaum Furs).) Res judicata precludes parties or their privies from relitigating a
cause of action that has been finally resolved in a prior proceeding. (Teitelbaum Furs,
supra, at p. 604, quoting Bernhard v. Bank of America Nat’l Trust & Sav. Asso. (1942)
19 Cal.2d 807, 810 (Bernhard).)
The doctrine of res judicata also includes the principle of collateral estoppel, under
which an issue ‘“necessarily decided in [prior] litigation [may be] conclusively
determined as [against] the parties [thereto] or their privies . . . in a subsequent lawsuit on
a different cause of action.”’ (Teitelbaum Furs, supra, 58 Cal.2d at p. 604, italics added.)
“Claim preclusion ‘prevents relitigation of the same cause of action in a second
suit between the same parties or parties in privity with them.’ [Citation.] Claim
preclusion arises if a second suit involves (1) the same cause of action (2) between the
same parties (3) after a final judgment on the merits in the first suit. [Citations.] If claim
preclusion is established, it operates to bar relitigation of the claim altogether.” (DKN
Holdings, supra, 61 Cal.4th at p. 824.)
“Issue preclusion prohibits the relitigation of issues argued and decided in a
previous case, even if the second suit raises different causes of action. [Citation.] Under
15 issue preclusion, the prior judgment conclusively resolves an issue actually litigated and
determined in the first action. [Citation.] There is a limit to the reach of issue preclusion,
however. In accordance with due process, it can be asserted only against a party to the
first lawsuit, or one in privity with a party.” (DKN Holdings, supra, 61 Cal.4th at p. 824,
italics added, citing Bernhard, supra, 19 Cal.2d at p. 812.)
Moreover, “[f]or purposes of both issue preclusion and claim preclusion,
‘“[i]dentity of parties means not only that they must be identical in person, but that the
capacity in which they appear must be the same. A judgment for or against a party in one
right or capacity cannot affect him when acting in another right or capacity.”’”
(Gavriiloglou, supra, 83 Cal.App.5th at p. 603.)
Prime Health’s entire argument rests on the notion that the arbitrator’s findings on
Gavriiloglou’s individual Labor Code claims precludes her from bringing a PAGA claim.
Yet, the PAGA claim was not submitted for arbitration, which means the “gateway”
finding of whether Gavriiloglou is an aggrieved employee, as well as the merits of the
claim, have not been judicially resolved as required under PAGA rules. In addition, the
state and LWDA did not consent to arbitration, so they were not in privity with
Gavriiloglou respecting her individual Labor Code claims, and no part of the
nonindividual PAGA claims can be deemed in privity with Gavriiloglou respecting the
individual Labor Code violations. Because the specific issue of whether she was an
“aggrieved employee” was not submitted for determination by the arbitrator, even if there
were privity, there was no ruling to bind the various interests on that point. Under these
16 circumstances, we conclude the findings made by the arbitrator on the individual Labor
Code violations are not binding.
These matters were litigated in Gavriiloglou, and we held “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. It follows that the arbitrator's findings
cannot have preclusive effect.” (Gavriiloglou, supra, 83 Cal.App.5th at p. 603.)
Our holding in Gavriiloglou was grounded on our reasoning that the PAGA claims
(both individual and nonindividual) were not brought by Gavriiloglou in a personal
capacity for her own compensation or vindication. As we explained in Gavriiloglou,
“According to the Restatement Second of Judgments, section 36(2), ‘[a] party appearing
in an action in one capacity, individual or representative, is not thereby bound by or
entitled to the benefits of the rules of res judicata in a subsequent action in which he
appears in another capacity.’ This rule applies to both claim preclusion and issue
preclusion. [Citation.] ‘With respect to issue preclusion, a party appearing in successive
actions … is not precluded where the capacities in which he participated are different.’”
(Gavriiloglou, supra, 83 Cal.App.5th at p. 602.)
In the present matter, Prime Health argues anew that even if the “same capacity”
requirement is imposed, the “same right” exception would apply. But this issue was
also addressed in Gavriiloglou, as we have already discussed above. There we held the
“same right” exception did not apply because “‘[individual] employees do not own a
personal claim for PAGA civil penalties [citation], and whatever personal claims
17 [individual] employees might have for relief are not at stake.”’ (Gavriiloglou, supra, 83
Cal.App.5th at p. 603.) Our previous holding is therefore binding unless and until it is
determined that there exists an exception to the law of the case doctrine.
b. Exceptions to Law of the Case; Intervening Change in the Law
Prime Health argues that the trial court erred in applying the law of the case
doctrine because the case falls within an exception to the doctrine. The “law of the case”
rule will be disregarded when necessary to avoid an “unjust decision.” (Searle, supra, 38
Cal.3d at p. 435.) Thus, “a court is not absolutely precluded by the law of the case from
reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is
involved. Where there are exceptional circumstances, a court which is looking to a just
determination of the rights of the parties to the litigation and not merely to rules of
practice, may and should decide the case without regard to what has gone before.”
(England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795.)
For this reason, courts “have declined to adhere to [the law of the case doctrine]
where its application would result in an unjust decision, e.g., where there has been a
manifest misapplication of existing principles resulting in substantial injustice, or where
the controlling rules of law have been altered or clarified by a decision intervening
between the first and second appellate determinations. The unjust decision exception
does not apply when there is a mere disagreement with the prior appellate determination.”
(Morohoshi, supra, 34 Cal.4th at pp. 491–492.)
Therefore, exceptions to the doctrine may apply “when (1) there has been an
intervening change in the law, or (2) the disputed issue was not presented or considered in
18 the proceedings below, or (3) application of the doctrine would result in a manifest
injustice.” (George Arakelian Farms v. Agric. Labor Rels. Bd. (1989) 49 Cal.3d 1279,
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.