Piplack v. In-N-Out Burgers, 2023 WL 2384502 (Cal. Ct. App. 2023)

In-N-Out Burgers appealed from the trial court’s denial of its motion to compel arbitration. The trial court denied the motion because In-N-Out’s arbitration agreement contained an unenforceable PAGA waiver. After the trial court’s ruling, the United States Supreme Court held in Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906 (2022) that PAGA waivers are enforceable. Consistent with this decision, In-N-Out argued that the plaintiffs’ individual PAGA claims must be arbitrated and the remaining representative claims dismissed for lack of standing. The Court of Appeal agreed with In-N-Out on the individual claims and reversed the trial court. But despite recognizing Viking River’s express holding that the representative claims lack standing and must be dismissed, the Court of Appeal stated that it “simply c[ould] not reconcile” Viking River and the California Supreme Court’s decision in Kim v. Reins Int’l Cal., Inc., 9 Cal. 5th 73 (2020). Accordingly, following Kim, the Court of Appeal held that the plaintiffs retain standing to pursue the representative claims.