NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 2 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MELINDA MANDVIWALA, as an No. 16-55084 individual and on behalf of all employees similarly situated, D.C. No. 8:15-cv-01454-VAP-SP Plaintiff-Appellee,

v. MEMORANDUM*

FIVE STAR QUALITY CARE, INC., a Delaware corporation, DBA Five Star Quality Care-CA, Inc.; FVE MANAGERS, INC., a Maryland corporation,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief District Judge, Presiding

Argued and Submitted December 7, 2017 Pasadena, California

Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,** District Judge.

Defendants-Appellants Five Star Quality Care, Inc. and FVE Managers, Inc.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. (“Five Star”) appeal from the district court’s order denying their motion to compel

arbitration in an action brought by Plaintiff Melinda Mandviwala under the

California Private Attorneys General Act (“PAGA”), alleging violations of various

California labor laws. Mandviwala sought civil penalties under PAGA as well as

unpaid wages on behalf of herself and similarly aggrieved employees. Five Star

argued that Mandviwala had waived her representative PAGA claims and sought to

arbitrate any other claims pursuant to an employment contract containing an

arbitration agreement. We affirm in part, reverse in part, and remand.

1. A federal court sitting in diversity follows the choice-of-law rules of the

state in which it sits. Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of

Tex., 134 S. Ct. 568, 582 (2013) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313

U.S. 487, 496 (1941)). The district court applied California’s choice-of-law

provision governing enforceability of a contract. See Nedlloyd Lines B.V. v.

Superior Court, 3 Cal. 4th 459, 464-66 (1992).

PAGA represents a fundamental California policy. See Iskanian v. CLS

Transp. L.A., LLC, 59 Cal. 4th 348, 378-79, 381 (2014) (analysis of the purpose

and background of PAGA). Because application of Maryland law would result in a

waiver of Mandviwala’s representative PAGA claims, it is directly at odds with a

fundamental policy of California. See Brack v. Omni Loan Co., Ltd., 164 Cal. App.

4th 1312, 1324-25 (finding that application of a choice-of-law provision was in

2 error when the selected state’s law conflicted with a fundamental policy of

California). The district court did not err in applying California law rather than

Maryland law, despite the choice of law provision in the employment contract.

2. Under California law, the waiver of representative PAGA claims in an

employment contract is unenforceable. Iskanian, 59 Cal. 4th at 384. As we have

already held in Sakkab v. Luxottica Retail North America, Inc., the Federal

Arbitration Act does not preempt Iskanian. 803 F.3d 425, 431 (9th Cir. 2015).

The subsequent rulings in DirecTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015)

and Kindred Nursing Centers Limited Partnership v. Clark, 137 S. Ct. 1421 (2017)

do not displace Sakkab. First, DirecTV dealt with the arbitration of private damage

claims, distinct from PAGA’s enforcement of civil penalties. Tanguilig v.

Bloomingdale’s, Inc., 5 Cal. App. 5th 665, 675 (2016). But more importantly,

neither DirecTV nor Kindred announced new law; both cases reached a conclusion

that “falls well within the confines of (and goes no further than) present well-

established law.” See DirecTV, 136 S. Ct. at 471; Kindred, 137 S. Ct. at 1429. The

Iskanian rule is distinct from the rules at issue in DirecTV and Kindred because it

is a generally applicable contract defense in that it bars any waiver of a PAGA

claim, regardless whether the waiver appears in an arbitration agreement. Sakkab,

803 F.3d at 432-33.

3 3. While Mandviwala’s claims for PAGA civil penalties are not subject to

arbitration, Mandviwala’s claims for unpaid wages under California Labor Code

§ 558 are subject to arbitration. Esparza v. KS Indus., L.P., 13 Cal. App. 5th 1228,

1234 (2017). Civil penalties are distinguishable from unpaid wages because they

cannot be collected in an individual capacity and because of their unique payout

structure defined by PAGA, in which most of the penalties are paid into the state

treasury rather than exclusively to the aggrieved employee. Id. at 1242-43.

Recovery of unpaid wages is a private dispute, particularly because it could

be pursued individually by the employee. Id. at 1246. Iskanian is limited to claims

“that can only be brought by the state or its representatives, where any resulting

judgment is binding on the state and any monetary penalties largely go to state

coffers.” Id. (quoting Iskanian, 59 Cal. 4th at 388).

We recognize that there is conflict between Esparza and the California Court

of Appeal’s recent holding in Lawson v. ZB, N.A., No. D071279, 2017 WL

6477857 (Cal. Ct. App. 4th Dist., Div. 1, Dec. 19, 2017), as modified (Dec. 21,

2017). Lawson held that claims for unpaid wages under California Labor Code §

558 are not private because “prior to enactment of PAGA there was no private

remedy under section 558.” 2017 WL 6477857, at *8. Thus, under Lawson, unpaid

wages claims pursuant to § 558 are not subject to arbitration under a pre-dispute

waiver of representative claims.

4 As such, we “must attempt to determine how the California Supreme Court

might decide the issue.” Ileto v. Glock Inc., 349 F.3d 1191, 1200 (9th Cir. 2003).

We find Esparza to be more consistent with the ruling of Iskanian. Esparza

specifically distinguished between individual claims for compensatory damages

(such as unpaid wages) and PAGA claims for civil penalties, which is more

consistent with Iskanian and reduces the likelihood that Iskanian will create FAA

preemption issues. See Esparza, 13 Cal. App. 5th at 1246 (“Employees claims for

unpaid wages are subject to arbitration pursuant to the terms of the parties’

arbitration agreement and the [FAA]. The rule of nonarbitrability adopted in

Iskanian is limited to representative claims for civil penalties in which the state has

a direct financial interest.”).

Thus, based on Esparza, we reverse the district court’s order and remand to

the district court to order arbitration of the victim-specific relief sought by

Mandviwala.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

5