*1 Filed 8/18/25 Neubecker v. Evans Hotels, LLC CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA EDWARD NEUBECKER, D084176
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2023- 00051797-CU-OE-CTL) EVANS HOTELS, LLC, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Marcella O. McLaughlin, Judge. Affirmed.
Barnes & Thornburg, Mark W. Wallin and Michael P. Witczak, for Defendants and Appellants.
Sullivan & Yaeckel Law Group, Eric K. Yaeckel, Ryan T. Kuhn, and Cody D. Archer for Plaintiff and Respondent.
Edward Neubecker—in a representative capacity only—sued Evans Hotels, LLC and The Lodge at Torrey Pines Partnership, L.P. (collectively, Hotel) under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.). Hotel contends the trial court erred in not compelling Neubecker to *2 arbitrate his individual PAGA claims. But because Neubecker asserts no individual PAGA claims in this case, we affirm.
I.
Hotel hired Neubecker as a server. Neubecker signed an arbitration agreement with Hotel.
Later, Neubecker sued Hotel under PAGA for Labor Code violations. He did so “in a Representative capacity only.” In response, Hotel moved to compel arbitration of Neubecker’s “individual claims.”
Neubecker raised several arguments in opposition, including that Hotel improperly sought to compel to arbitration “individual claims that are not before the court” given he asserted only “PAGA claims in his representative capacity.”
In reply, Hotel disagreed “that PAGA claims cannot be compelled to arbitration unless a PAGA complaint explicitly asserts an individual PAGA claim.” Hotel did not, however, directly contest Neubecker’s assertion his complaint lacked individual claims.
The trial court denied the motion on a different ground, finding a “poison pill” provision invalidated the entire arbitration agreement.
II.
A. Neubecker contends Hotel’s appeal is “procedurally, and fatally, defective” for failure to identify the standard of review. Yet Neubecker cites no authority imposing the “procedural default” he seeks. “Arguments should be tailored according to the applicable standard of appellate review.” ( Sebago, Inc. v. City of Alameda Cal.App.3d 1372, 1388.) Though it would have been a better practice for Hotel to explicitly identify the applicable standard of review in its opening brief, Neubecker does not accuse *3 Hotel of not tailoring its arguments accordingly. As a result, Neubecker has not established a basis for us to reject Hotel’s appeal on this ground.
When, as here, the interpretation of a writing does not turn on the
credibility of extrinsic evidence, we review it de novo. (
Parsons v. Bristol
Development Co.
(1965)
B.
We asked the parties to submit supplemental briefing about the effect on this appeal, if any, of Rodriguez v. Packers Sanitation Services LTD., LLC Cal.App.5th 69, 80, review granted May 14, 2025, S290182, which issued after the opening and responding briefs were filed in this case.
Hotel argues Rodriguez is “not applicable” and “irrelevant to this appeal,” and in any event it presents an issue of arbitrability reserved for the arbitrator under the parties’ delegation clause. Neubecker contends “fully supports” arguments he made to the trial court and is an independent basis on which to affirm. We agree with Neubecker.
What claims a court may send to arbitration depends on both the scope of the parties’ arbitration agreement and the plaintiff’s complaint. “If the plaintiff’s complaint asserts no individual PAGA claim, there is no existing dispute over his or her right to obtain an individual PAGA remedy, and he or she cannot properly be ordered to arbitrate such a claim.” ( , 80.) Thus, “if on a motion to compel arbitration the court examines the complaint and determines it does not allege an individual PAGA claim, the court should decline to compel any such claim to arbitration.” ( Ibid. )
“An individual PAGA claim is the component of a PAGA claim that
seeks civil penalties based on Labor Code violations sustained by the
plaintiff,” while a nonindividual PAGA claim is one that “seeks civil penalties
*4
based on Labor Code violations sustained by current and former employees
other than the plaintiff.” (
Rodriguez
,
Like the
Rodriguez
complaint, Neubecker’s complaint “is not a model of
clarity” (
Rodriguez
, 109 76), yet we are persuaded
Neubecker is not seeking individual PAGA relief here. First, the complaint
directly expresses the intent to assert only nonindividual claims by stating
throughout that Neubecker “brings this action in a representative capacity”
or “in a Representative capacity only” and omitting any reference to
“individual” from the caption. Second, while Neubecker notes in the
complaint that civil penalties are “recoverable by Plaintiff on behalf of
himself,” he seeks statutory civil penalties only “for each underpaid employee
of” Hotel. Though Neubecker’s complaint includes himself at times as an
aggrieved employee, he must do so to establish standing to represent the
nonindividual PAGA claims. (
Adolph v. Uber Technologies, Inc.
(2023)
We are not persuaded by Hotel’s efforts to avoid applying Rodriguez . To start, this issue is properly before us. The parties fully briefed it in the trial court. Though the trial court denied arbitration on another ground, we will affirm a ruling that “is correct on any theory,” “regardless of the trial court’s reasoning.” ( Cahill v. San Diego Gas & Electric Co. (2011) Cal.App.4th 939, 956.) Hotel faults Neubecker for not citing , yet Neubecker could not have done so because issued about a week after he filed his responding brief in this case.
Next, Hotel argues a PAGA complaint “
must
assert individual claims.”
Whether a plaintiff can “choose to bring only a non-individual PAGA action,”
however, is a different question currently before our Supreme Court that goes
*5
beyond the scope of this appeal. (
Leeper v. Shipt, Inc.
, S289305, Supreme Ct.
Mins., Apr. 16, 2025.) “The relevant question for our purposes is whether
[Neubecker’s] complaint does assert an individual PAGA claim, not whether
it
should
include such a claim.” ( , 109 81.) To the
extent Hotel asks us to depart from , it has not offered a compelling
reason for us to do so. (
Estate of Sapp
(2019)
Finally, Hotel contends “whether Neubecker personally suffered a
Labor Code violation” is an arbitrable controversy, and such arbitrability
questions—including whether the complaint asserts an arbitrable claim—fall
within the arbitrator’s “exclusive authority” under the delegation clause.
Hotel, however, forfeited this argument. “[I]ssues not raised in the trial court
cannot be raised for the first time on appeal.” (
Estate of Westerman
(1968)
Cal.2d 267, 279.) At oral argument, counsel asserted Hotel raised the
delegation clause in its trial court reply brief, where Hotel argued
“controversies related to Plaintiff’s standing as an aggrieved employee must
be determined in arbitration pursuant to the agreement.” (Bolding and some
capitalization omitted.) We see nothing about the delegation clause in that
section. Even were we to accept Hotel’s representation that this argument
advanced the delegation clause, it was insufficient to preserve the issue for
appeal. (
Mendoza v. Trans Valley Transport
(2022)
* * *
In sum, because Neubecker’s complaint does not assert individual PAGA claims, the court did not err in denying the motion to compel those individual claims to arbitration.
III.
We affirm the order denying Hotel’s motion to compel arbitration of Neubecker’s individual PAGA claims. Neubecker is entitled to recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
CASTILLO, J. WE CONCUR:
McCONNELL, P. J.
IRION, J.