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March 12, 2026 Get Citation Alerts Download PDF Add Note

Shin v. Aya Healthcare CA1/4

California Court of Appeal

• Citations: None known
• Docket Number: A173533

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.2K)

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Combined Opinion

Filed 3/12/26 Shin v. Aya Healthcare CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

STELLA SHIN,
Plaintiff and
Respondent, A173533

v. (Alameda County
AYA HEALTHCARE, INC., Super. Ct. No.
24CV072248)
Defendant and
Appellant.

Aya Healthcare, Inc. (Aya) appeals from a trial court order
denying its motion to compel arbitration of Stella Shin’s
individual claim on her own behalf under the Labor Code Private
Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA).1
The trial court denied Aya’s motion because it concluded that
Shin had not alleged an individual PAGA claim, merely a non-
individual PAGA claim on behalf of other aggrieved employees
that Aya was not seeking to compel to arbitration.2 The trial

1 Undesignated statutory citations are to the Labor Code.
2 The trial court, following the approach of some recent

court decisions, referred to these different types of claims as
individual and representative. (E.g., Leeper v. Shipt, Inc. (2024)
107 Cal.App.5th 1001, 1008, fn. 7, review granted April 16, 2025,

1
court further ruled that PAGA and the caselaw interpreting it
allowed Shin to plead only a non-individual PAGA claim in this
fashion.
Aya contends this was error thrice over. First, it argues
the question of whether Shin has pleaded an individual claim is a
question of arbitrability that its arbitration agreements delegated
to the arbitrator. Second, it argues that Shin’s PAGA claim
necessarily includes an individual claim even though Shin
purports to allege only a non-individual claim. Third, Aya insists
that even if Shin properly asserted only a non-individual claim,
the question of her standing to do so is an issue that can be
compelled to arbitration on its own.
We do not reach the merits of Aya’s first and third
arguments because Aya forfeited them by failing to raise them
timely in the trial court. On the second, we agree with Rodriguez
v. Packers Sanitation Services LTD., LLC (2025) 109 Cal.App.5th
69, review granted May 14, 2025, S290182 (Rodriguez), that a
plaintiff is the master of the complaint and a court cannot
construe a plaintiff’s complaint to allege an individual claim if
the plaintiff disclaims any such claim. If this makes a complaint

S289305 (Leeper).) This risks confusion because, as a technical
matter, all PAGA claims are representative in the sense that an
employee represents the interests of the Labor and Workforce
Development Agency (LWDA). (Ibid.) Throughout this opinion
we therefore adhere to the California Supreme Court’s approach
of using “individual” to refer to a PAGA claim on behalf of the
plaintiff bringing the claim and “non-individual” to refer to a
plaintiff’s claim for penalties on behalf of other aggrieved
employees. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th
1104, 1114, 1117–1118 (Adolph).)

2
defective (an issue we need not and do not decide), the proper
solution is to challenge the pleading via the normal procedures,
not to read the intentionally omitted element into the complaint
and then compel it to arbitration. We will therefore affirm on
this basis.
BACKGROUND
I. PAGA Background
“[T]he Legislature enacted PAGA to create new civil
penalties for Labor Code violations and ‘ “to allow aggrieved
employees, acting as private attorneys general, to recover [those]
penalties.” ’ [Citation.] Specifically, PAGA authorizes ‘an
aggrieved employee,’ acting as a proxy or agent of the [LWDA], to
bring a civil action against an employer ‘on behalf of himself or
herself and other current or former employees’ to recover civil
penalties for Labor Code violations they have sustained.”
(Adolph, supra, 14 Cal.5th at p. 1113.) Under the former version
of PAGA that applies here, the LWDA receives 75 percent of any
penalties recovered and aggrieved employees 25 percent.
(Former § 2699, subd. (i), as amended by Stats. 2016, ch. 31,
§ 189; see § 2699, subd. (m) [LWDA now receives 65 percent of
penalties and aggrieved employees 35 percent].)
“To have standing to bring a PAGA action, a plaintiff must
be an ‘aggrieved employee,’ ” which formerly meant “ ‘any person
who was employed by the alleged violator and against whom one
or more of the alleged violations was committed.’ ” (Adolph,
supra, 14 Cal.5th at p. 1116, quoting former § 2699, subd. (c), as
amended by Stats. 2016, ch. 31, § 189; see § 2699, subd. (c)(1)–(2)

3
[after 2024 amendment, “aggrieved employee” now means, with
one exception, “any person who was employed by the alleged
violator and personally suffered each of the violations alleged”
during the one-year limitations period].) Nonetheless, a PAGA
claim remains “ ‘ “ ‘fundamentally a law enforcement action,’ ” ’ ”
and “ ‘[t]he “government entity on whose behalf the plaintiff files
suit is . . . the real party in interest.” ’ ” (Adolf, at p. 1117.)
“[A] predispute categorical waiver of the right to bring a
PAGA action is unenforceable . . . .” (Adolph, supra, 14 Cal.5th at
p. 1117.) Also unenforceable is an agreement that requires
arbitration of an employee’s individual claim for penalties and
waives the employee’s right to bring a non-individual claim for
penalties on behalf of other employees. (Id. at pp. 1117–1118.)
Until recently, some courts had further held employers could not
require employees to split a PAGA action into an arbitrable
individual claim and a non-individual claim that would remain in
court. (Id. at p. 1118.) But in Viking River Cruises, Inc. v.
Moriana (2022) 596 U.S. 639, 662, the Supreme Court held that
the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) preempts
such an “indivisibility” rule.
Following Viking River, the California Supreme Court held
that a plaintiff whose individual claims are compelled to
arbitration maintains standing under PAGA to assert non-
individual claims in court. (Adolph, supra, 14 Cal.5th at p. 1114.)
It concluded that a plaintiff’s complaint properly alleged his
standing as an aggrieved employee for the purposes of his non-
individual claim by alleging that he experienced Labor Code

4
violations by the defendant. (Id. at p. 1121.) Arbitration of the
plaintiff’s individual claim did not extinguish that standing.
(Ibid.) As a result, when an arbitration agreement requires
arbitration of only an individual PAGA claim, that portion of a
suit may be split off and compelled to arbitration, while the
remaining non-individual claims stay in court. (Id. at pp. 1123–
1124.) Adolph recognized, however, that an arbitrator’s ruling on
a plaintiff’s individual claim that the plaintiff was or was not an
aggrieved employee, if reduced to a final court judgment, would
be binding on the court in the action on the non-individual
claims. (Id. at p. 1124.)
II. Factual Background
Shin worked for Aya or an entity associated with it. In
April 2024, Shin filed a complaint against Aya alleging a single
cause of action under PAGA. She alleged that she was an
aggrieved employee within the meaning of PAGA because she
suffered one or more violations of the Labor Code by Aya, the
details of which are irrelevant here. In several different places,
Shin alleged that she was bringing the claim on behalf of herself
individually and other similarly situated aggrieved employees.
She sought to recover civil penalties “on behalf of herself and all
other similarly aggrieved employees.” (Capitalization omitted.)
Aya moved to compel arbitration. It provided evidence that
Shin had signed two substantively identical arbitration
agreements. Three provisions of the agreements are relevant
here.

5
The first requires arbitration of “any and all claims arising
out of or relating to [Shin’s] employment” with Aya, and
specifically says the agreement covers claims “based on or
alleging violations of the California Labor Code.”
The second provision states that arbitration will be
conducted in conformity with the FAA and the California
Arbitration Act (Code Civ. Proc., § 1280 et seq.). This provision
also contains what Aya calls a delegation clause, which states,
“The arbitrator shall have the authority to resolve all portions of
the dispute, including disputes relating to the interpretation or
enforceability of this Agreement . . . .”
The third provision states that no claim covered by the
agreement can be pursued as a class, collective, or representative
action, but if either party asserts a nonwaivable representative
claim, “any and all such representative claims may be asserted
and determined only by binding arbitration in accordance with
this Agreement.”
Rather than oppose Aya’s motion, Shin amended her
complaint. Shin’s new complaint continues to allege the same
facts about her employment as the original complaint. But
unlike her original complaint, Shin no longer alleges her PAGA
claim individually or on her own behalf; instead, she alleges a
PAGA claim only on behalf of other aggrieved employees.
Aya again moved to compel arbitration of Shin’s individual
PAGA claim. Aya took the position that Shin’s removal from her
complaint of any reference to her individual claims was
immaterial because every PAGA action is a combination of an

6
individual claim arising from violations suffered by the plaintiff
and a non-individual claim arising from violations suffered by
other employees. A plaintiff must have suffered violations to
have standing to bring a non-individual claim, so Aya said that
Shin was either not an aggrieved employee and therefore lacked
standing to bring a non-individual claim, or was an aggrieved
employee and her individual claim was subject to arbitration. It
then urged the court to compel arbitration of Shin’s “individual
claims and individual PAGA claims . . . and to stay [her] [non-
individual] PAGA claims pending the outcome of the arbitration.”
As relevant here, Shin opposed Aya’s motion by arguing
that she had standing to allege a non-individual PAGA claim
because she alleged that she suffered Labor Code violations. She
also pointed out that she was not alleging an individual claim,
merely a non-individual claim. She said Aya’s motion to compel
arbitration of an individual claim that she had not alleged was
therefore groundless. Shin further contended that non-individual
claims are nonwaivable and that Aya’s attempt to compel
arbitration of Shin’s non-existent individual claim but stay the
non-individual claim was inconsistent with the arbitration
agreement’s provision requiring arbitration of nonwaivable non-
individual claims.
In reply, Aya contended that Shin’s argument about an
inconsistency between Aya’s request to stay her non-individual
claim and the agreement’s requirement that it be arbitrated was
a challenge to the enforceability of the agreements that was for
the arbitrator to decide under the provision giving the arbitrator

7
“the authority to resolve all portions of the dispute, including
disputes relating to the interpretation or enforceability of this
Agreement.” Aya also maintained that Shin did not have
standing to assert a purely non-individual claim because PAGA
requires an aggrieved employee to bring an action on the
employee’s own behalf in addition to other employees. A single
sentence of this argument mentioned the delegation clause but
did not contend that the court could not decide the questions of
whether Shin had alleged an individual claim or had standing to
pursue a non-individual claim.
The trial court denied Aya’s motion.
DISCUSSION
I. Governing Law and Standard of Review
“Congress enacted the FAA ‘in response to judicial hostility
to arbitration. Section 2 of the statute, [by making] arbitration
agreements “valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract,” ’ establishes an ‘ “an equal-treatment principle: A court
may invalidate an arbitration agreement based on ‘generally
applicable contract defenses’ like fraud or unconscionability, but
not on legal rules that ‘apply only to arbitration or that derive
their meaning from the fact that an agreement to arbitrate is at
issue.’ ” ’ [Citation.] When the FAA applies—that is, when the
contracting parties are sufficiently involved in interstate
commerce [citation]—the FAA ‘preempts any state rule
discriminating on its face against arbitration’ and ‘displaces any
rule that covertly accomplishes the same objective by disfavoring

8
contracts that (oh so coincidentally) have the defining features of
arbitration agreements.’ ” (Harrod v. Country Oaks Partners,
LLC (2024) 15 Cal.5th 939, 965.) There is no dispute that the
FAA applies here.
“ ‘ “ ‘There is no uniform standard of review for evaluating
an order denying a motion to compel arbitration. [Citation.] If
the court’s order is based on a decision of fact, then we adopt a
substantial evidence standard. [Citations.] Alternatively, if the
court’s denial rests solely on a decision of law, then a de novo
standard of review is employed.’ ” ’ ” (Avila v. Southern
California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 839–
840.)
II. Delegation
Aya first faults the trial court for considering at all whether
Shin’s complaint alleges an individual claim. Aya contends this
is a question of arbitrability that the arbitration agreements
delegate to the arbitrator. This argument relies on the provision
of the arbitration agreements that states, “The arbitrator shall
have the authority to resolve all portions of the dispute, including
disputes relating to the interpretation or enforceability of this
Agreement . . . .”
We need not consider the merits of this argument because
we agree with Shin that Aya forfeited it by failing to timely raise
it in the trial court. “ ‘Appellate courts are loath to reverse a
judgment on grounds that the opposing party did not have an
opportunity to argue and the trial court did not have an
opportunity to consider. [Citation.] In our adversarial system,

9
each party has the obligation to raise any issue or infirmity that
might subject the ensuing judgment to attack.’ ” (Mendoza v.
Trans Valley Transport (2022) 75 Cal.App.5th 748, 769–770.) A
party therefore forfeits and does not preserve for appeal an
argument it fails to adequately raise in the trial court. (Id. at
p. 770.) “Additionally, the right to arbitrate may be waived by
‘ “conduct so inconsistent with the exercise of the right to
arbitration as to constitute an abandonment of that right.” ’ ”
(Ibid.) This waiver principle applies to arguments that a
delegation clause applies because such clauses are treated as
separate arbitration agreements. (Id. at pp. 770–771.)
Aya mentioned in the introduction to its motion to compel
arbitration that the delegation clause gives the arbitrator
authority to resolve disputes regarding the enforceability of the
arbitration provision. It also placed the delegation clause in
boldface in its factual background discussion. But Aya went on to
argue to the court, with only a passing reference to delegation,
that its arbitration agreement was enforceable and not
unconscionable. Aya also argued, again without mentioning
delegation, that the agreement applied to Shin’s claim despite
her removal of any references to individual claims, which is
precisely the issue Aya now claims should be delegated to the
arbitrator. Aya cannot complain that the trial court exceeded its
authority in ruling on an issue that Aya itself presented to the
court for a ruling, and we will not reverse the trial court on a
basis that it did not have adequate opportunity to consider.

10
In response to Shin’s forfeiture argument, Aya insists that
it timely raised the issue by arguing in its motion and reply and
at the hearing that the enforceability of the arbitration
agreement was for the arbitrator to decide. In its motion, Aya
only mentioned the delegation clause in passing in a discussion of
whether the arbitration agreement is unconscionable. Aya never
argued that the delegation clause prevented the court from
deciding whether Shin’s PAGA action was arbitrable, and in the
ensuing pages of the motion, Aya asked the trial court to rule on
the merits of the question of whether the arbitration agreement
applies to Shin’s complaint. The trial court noted as much in its
ruling, observing that Aya relied on the delegation clause only in
its reply and at the hearing.
The reply was too late to raise the issue, since it deprived
Shin of the opportunity to contest the point in her opposition
papers. Moreover, even in its reply Aya argued only that the
court should defer to the arbitrator on Shin’s defense that the
motion should be denied because compelling arbitration of an
individual claim but leaving the non-representative claim in
court was inconsistent with the provision of the agreement
calling for arbitration of nonwaivable representative claims. As
it relates to Shin’s purported individual claim, Aya mentioned the
delegation clause in a single sentence distinguishing Rodriguez
for its failure to address the applicability of a delegation clause.
It never disputed the trial court could rule on whether Shin had
alleged an individual claim. Not until the hearing on its motion
did Aya argue that the question of whether Shin had pleaded an

11
individual claim needed to be delegated to the arbitrator. Raising
the issue in this manner was unfair both to Shin and to the trial
court, so we will not consider it on appeal. (Hewlett-Packard Co.
v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548 [forfeiture rule
“ ‘ “is based on fairness—it would be unfair, both to the trial court
and the opposing litigants, to permit a change of theory on
appeal” ’ ”].)3
III. Individual vs. Non-individual Claim
Aya next contends the trial court erred in denying its
motion to compel arbitration because Shin’s PAGA action must
include an individual claim that is subject to arbitration even
though she omitted any claim of individual relief. While the
question of whether a PAGA non-individual claim must be paired
with an individual claim to be viable is an interesting one, we
have no occasion to take it up here. We agree with our colleagues
in Rodriguez, supra, 109 Cal.App.5th 69, 75, review granted, that
regardless of whether an individual claim is an essential element
of every PAGA claim, a defendant cannot compel arbitration of an
individual claim if a plaintiff has not asserted one.

3 The outcome would be no different if we were to examine

the issue on the merits. Arbitrability questions are
presumptively for the court to decide absent clear and
unmistakable evidence that the parties delegated such questions
to the arbitrator. (Rent-A-Center, West, Inc. v. Jackson (2010)
561 U.S. 63, 69, fn. 1.) The agreements delegate to the arbitrator
the questions of “the interpretation or enforceability” of the
agreement. As the trial court noted, even if this phrase were
susceptible to Aya’s interpretation that it encompasses the
question of whether Shin’s complaint alleges an individual claim,
that interpretation is not clear and unmistakable.

12
In Rodriguez, supra, 109 Cal.App.5th at pages 72, 76–77,
review granted, the plaintiff filed a PAGA claim only in a non-
individual capacity and omitted references to individual relief.
The trial court denied the defendant’s motion to compel
arbitration of the claim, and the Court of Appeal affirmed on the
ground that the plaintiff was “not asserting individual PAGA
claims in this case, and the trial court therefore could not have
erred by failing to compel such claims to arbitration.” (Id. at
p. 75.) Rodriguez rejected the defendant’s reliance on another
case, Leeper, supra, 107 Cal.App.5th 1001, review granted, which
Aya principally relies on here. (Rodriguez, at pp. 78–81.) Leeper,
at page 1008, held that “a necessary component of every PAGA
action is an individual PAGA claim, and thus that [a plaintiff],
having alleged a cause of action under PAGA has, as a matter of
law, alleged both an individual claim and a [non-individual]
claim.” Rodriguez pointed out that Leeper’s conclusion did not
follow from its premise: “[J]ust because a PAGA action must
include an individual PAGA claim does not mean any particular
complaint brought under the auspices of PAGA does contain one.”
(Rodriguez, at p. 79; see ibid. [“It means that a PAGA complaint
should contain an individual PAGA claim, not that it does.”].)
Complaints commonly fail to conform to statutory requirements,
and defendants can use various tools to challenge such pleadings,
such as demurrers or motions to strike. (Id. at pp. 78–80.) The
Rodriguez court concluded that by reading a claim into a
complaint that the plaintiff had expressly chosen not to assert,
Leeper overlooked the principles that the plaintiff prosecutes a

13
civil action and the plaintiff’s complaint “ ‘serves to frame and
limit the issues.’ ” (Id. at p. 80.)
Rodriguez, supra, 109 Cal.App.5th at page 80, review
granted, concluded that when a defendant moves to compel
arbitration of a PAGA individual claim, the trial court should
examine the complaint to determine whether it asserts an
individual claim. “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.” (Ibid.)
However, this does not necessarily mean the plaintiff’s complaint
states a valid cause of action. (Ibid.) The defendant can still
raise the question of whether a standalone non-individual PAGA
claim is proper. (Ibid.) The defendant just needs to raise the
alleged pleading deficiency “in an appropriate pleading
challenge.” (Ibid.)
We agree with Rodriguez. Shin’s operative complaint omits
any claim for individual PAGA penalties. She still alleges that
she suffered Labor Code violations and is an aggrieved employee,
but solely to allege that she has standing to bring a non-
individual claim for penalties on behalf of other employees. To
the extent that there is any doubt about the question, her
briefing on appeal makes plain that she is not seeking individual
relief. We have accepted that representation as a reason to rule
in her favor by affirming the trial court’s ruling and have
construed the complaint as not raising an individual claim, so
judicial estoppel and law of the case will prevent Shin from

14
arguing otherwise in subsequent proceedings. (Rodriguez, supra,
109 Cal.App.5th at p. 77, review granted.) Shin has therefore
unequivocally not asserted an individual claim.
Because Shin has not alleged an individual claim, Aya
cannot compel her to arbitrate it. (Rodriguez, supra, 109
Cal.App.5th at p. 80, review granted.) The dispute that Aya
claims is arbitrable concerns whether Shin is entitled to
individual PAGA penalties, but that dispute simply is not present
in this case as Shin has framed it. (See Aryeh v. Canon Business
Solutions, Inc. (2013) 55 Cal.4th 1185, 1202 [“At the demurrer
stage, [plaintiff] is the master of his complaint, and we must
accept his allegations at face value.”]; Central Valley Hospitalists
v. Dignity Health (2018) 19 Cal.App.5th 203, 206, 217–219
[conclusory complaint that expressly alleged it was not based on
hospital’s peer review activities, while susceptible to demurrer,
could not be treated as though it alleged claims based on peer
review activities for purposes of anti-SLAPP motion]; Medical
Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 621
[“It would be inappropriate for [a court] to insert into a pleading
claims for relief based on allegations of activities that plaintiffs
simply have not identified . . . . It is not [a court’s] role to engage
in what would amount to a redrafting of the first amended
complaint in order to read that document as alleging conduct that
supports a claim that has not in fact been specifically alleged,
and then assess whether the pleading that [the court has]
essentially drafted could survive the anti-SLAPP motion directed
at it,” fn. omitted].) We express no opinion on whether Shin’s

15
non-individual claim satisfies the requirements of PAGA or any
other pleading requirement. The trial court evidently believed a
purely non-individual PAGA claim is viable, but its views were
unnecessary to its disposition of Aya’s motion to compel
arbitration and are therefore dicta. If Aya continues to believe
Shin’s purely non-individual claim is not viable, it must raise the
issue via a proper challenge to the pleadings, not by attempting
to compel arbitration of a claim that Shin has not asserted.
IV. Arbitrability of Standing
Aya’s final contention is that even if Shin has not asserted
an arbitrable individual PAGA claim, her standing as an
aggrieved employee is an issue in her non-individual claim and
must be arbitrated. Like its delegation argument, Aya forfeited
this issue by failing to raise it below.
Aya’s motion to compel arbitration asked the court to
compel Shin to arbitrate her individual claim and to stay her
non-individual claim. Aya’s memorandum in support of its
motion asserted that Shin’s omission of an individual claim would
deprive her of standing for a non-individual claim, but it did not
suggest that the question of her standing could be separated from
the rest of the non-individual claim and independently sent to
arbitration. Aya argued that Shin’s non-individual PAGA claim
should be stayed because it overlapped with and was based on
the same factual allegations of alleged Labor Code violations as
the individual claim, not that it should be arbitrated because of
the overlap. Aya cited the section in Adolph where the California
Supreme Court recognized that the resolution of an individual

16
claim in arbitration could have preclusive effect on the issue of
standing for a non-individual claim. (Adolph, supra, 14 Cal.5th
at pp. 1123–1124.) But Aya did not suggest there or in its later
reply papers that the overlap between the two types of claims
was sufficient to require arbitration of the standing question even
if the individual claim were not sent to arbitration. The trial
court understood Aya’s motion in this way, remarking that Aya
had not asserted that Shin’s non-individual claim was arbitrable.
Accordingly, we will not address this question for the first time
on appeal.
DISPOSITION
The trial court’s order is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
GOLDMAN, J.

Shin v. Aya Healthcare, Inc. (A173533)

17