Headless PAGA: Leeper v. Shipt and the Split the Supreme Court Will Resolve

The question and where it came from

The headless-PAGA problem is a direct artifact of Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 and Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104. Viking River introduced the now-standard vocabulary — an “individual PAGA claim” rests on violations the plaintiff personally suffered, while a “representative PAGA claim” rests on violations suffered by other employees — and held the FAA requires enforcement of an agreement to arbitrate the individual component. (See our analyses of Viking River and Adolph.) Adolph then confirmed that a plaintiff whose individual claim goes to arbitration retains standing to litigate the representative claim in court. The strategic response arrived quickly: if the individual component is the employer’s hook into arbitration — and a gateway to staying the whole case — plead no individual component at all. File a complaint expressly disclaiming individual PAGA relief, seek penalties only for violations suffered by other employees, and leave the motion to compel with nothing to grab.

Christina Leeper’s complaint was built exactly that way. A Shipt “shopper” who had signed an independent-contractor agreement incorporating an FAA-governed arbitration agreement, she sued Shipt and Target in March 2024, styling her single count as one for “[PAGA] non-individual penalties,” alleging misclassification-based Labor Code violations, and pleading that “[b]ecause [Leeper] alleges only non-individual PAGA claims on a representative basis, Shipt cannot compel them to arbitrat[ion].” (Leeper, supra, 107 Cal.App.5th at pp. 1005–1006, rev.gr.) The trial court agreed and denied the motion to compel because there was “no individual cause of action it may compel to arbitration.” (Id. at p. 1006.)

Leeper: every PAGA action includes an individual claim

The Second District reversed. Its analysis begins and very nearly ends with the text of Labor Code section 2699, subdivision (a), which describes a PAGA action as “a civil action brought by an aggrieved employee on behalf of the employee and other current or former employees.” (Leeper, supra, 107 Cal.App.5th at p. 1009, rev.gr., italics added.) “The unambiguous and ordinary meaning of the word ‘and’ is conjunctive, not disjunctive” — so the statutory action has “both an individual claim component (plaintiff’s action on behalf of the plaintiff himself or herself) and a representative component (plaintiff’s action on behalf of other aggrieved employees).” (Ibid.) Reading the statute Leeper’s way, the court held, would require either excising “on behalf of the employee” or rewriting “and” as “and/or,” contrary to the rules that words receive their ordinary meaning and that no statutory language be rendered meaningless. (Id. at pp. 1009–1010.)

The court reinforced the textual holding with legislative history: the original version of Senate Bill No. 796 (2003–2004 Reg. Sess.) described an action “on behalf of himself or herself or … other current or former employees,” and an “author’s technical amendment” — offered “to clarify the intent of the bill and correct drafting errors” — deliberately replaced “or” with “and.” (Leeper, supra, 107 Cal.App.5th at p. 1010, rev.gr.) The court acknowledged the practical consequence — an individual claim exists in every PAGA action, so it “often may be separately compelled to arbitration where the FAA applies,” with a stay of the representative litigation and even potential issue-preclusive effects — but held policy objections cannot override unambiguous text. (Ibid.)

It then dispatched the plaintiff’s authorities — Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, Adolph, and Balderas v. Fresh Start Harvesting, Inc. (2024) 101 Cal.App.5th 533 — as standing cases construing section 2699, subdivision (c)(1)’s “aggrieved employee” definition, none of which interpreted subdivision (a)’s definition of what a PAGA action contains. (Leeper, supra, 107 Cal.App.5th at pp. 1010–1012, rev.gr.) The disposition ordered the individual claim to arbitration and a mandatory — though duration-discretionary — stay of the representative claim under Code of Civil Procedure section 1281.4. (Id. at p. 1013.)

The contrary line: CRST Expedited and Rodriguez

CRST Expedited: the “and” is ambiguous, and PAGA’s purpose resolves it. Seven months later, the Fifth District — in a writ proceeding where the plaintiff had voluntarily dismissed his individual PAGA claim and proceeded headless — refused to follow Leeper‘s premise. Recognizing that “and” is usually conjunctive, the court invoked the exception for situations where a disjunctive construction is “‘fair and rational’” (citing People v. Reynoza (2024) 15 Cal.5th 982, 990), and concluded that “PAGA is not an ordinary statute, the problems it attempts to remedy are unusual, and Viking River drastically altered the legal landscape in which PAGA is applied.” (CRST Expedited, supra, 112 Cal.App.5th at p. 883, rev.gr.) Two conclusions followed: “First, the and in former subdivision (a) of section 2699 is ambiguous. Second, PAGA’s purpose of encouraging enforcement of California’s labor laws is best served by interpreting the ambiguous and liberally to include both and and or.” (Ibid.) An aggrieved employee, as the LWDA’s representative, may therefore seek penalties for violations suffered only by herself, only by other employees, or both — “[i]n short, headless PAGA actions were among the choices allowed the LWDA’s representatives.” (Id. at pp. 883–884.) The court denied the employer’s writ petition. (Id. at p. 919.)

Rodriguez: take the complaint as pled. The Fourth District reached the same destination by a narrower route. Parra Rodriguez had sued Packers Sanitation “in a Representative Capacity only.” (Rodriguez, supra, 109 Cal.App.5th at pp. 72–73, rev.gr.) Rather than construe section 2699, the court framed the appeal as a pleading question: “The only question that is before us is whether the complaint includes claims that are arbitrable. For the reasons we have stated, our answer to that question is no.” Whether a plaintiff may plead a purely non-individual PAGA action was “a different question, one that we do not address.” (Id. at p. 78.) The court reviewed Leeper and did “not find it to be persuasive”: the plaintiff, not the court, “is responsible for prosecuting a civil action” (Code Civ. Proc., § 30), and the complaint “serves to frame and limit the issues” (citing Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212). Leeper “overlooked these principles by construing Labor Code section 2699, subdivision (a) as requiring an individual PAGA claim, and not only declaring that the complaint ‘necessarily’ included such a claim but also requiring the plaintiff to arbitrate a claim she had never chosen to assert.” (Rodriguez, at pp. 78, 80.) The order denying arbitration was affirmed. (Id. at p. 82.)

What the grant of review frames

The Supreme Court ordered review in Leeper on its own motion on April 16, 2025 — a comparatively rare signal of the Court’s institutional interest — and limited review to two questions, as stated in its official Issues Pending compilation: “(1) Does every Private Attorneys General Act (Lab. Code, § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? (2) Can a plaintiff choose to bring only a non-individual PAGA action?” Rodriguez was granted and expressly held: “Further action in this matter is deferred pending consideration and disposition of related issues in Leeper v. Shipt” (S290182, order of May 14, 2025), and review was granted in CRST Expedited on September 17, 2025 (S292005). Every path out of the split therefore runs through Leeper.

The framing matters. Question 1 is Leeper‘s statutory holding; Question 2 is the plaintiff-autonomy question Rodriguez flagged but declined to answer. The Court could resolve the case narrowly on Rodriguez‘s pleading logic (courts adjudicate the complaint before them) without deciding whether a headless complaint is demurrable; it could adopt Leeper wholesale and end the strategy; or it could adopt CRST‘s purposive reading and constitutionalize nothing while blessing plaintiff choice. Note also a wrinkle: all three decisions arise from pre-reform complaints — CRST is explicit that it interprets “former” subdivision (a) — while PAGA was comprehensively amended for notices filed on or after June 19, 2024 (AB 2288/SB 92). The interpretive question will nonetheless carry forward: the operative formula is unchanged in the current statute, which still describes “a civil action brought by an aggrieved employee on behalf of the employee and other current or former employees against whom a violation of the same provision was committed.” (§ 2699, subd. (a), as amended through Stats. 2025, ch. 67 (text verified against the official code July 1, 2026).) Whatever the Court says about “and” will govern post-reform notices too.

Key quotes

“[B]ased on the unambiguous, ordinary meaning of the relevant statutory language and the legislative history of that language, … we conclude that every PAGA action necessarily includes an individual PAGA claim.” (Leeper, supra, 107 Cal.App.5th at p. 1005, rev.gr.)

“First, the and in former subdivision (a) of section 2699 is ambiguous. Second, PAGA’s purpose of encouraging enforcement of California’s labor laws is best served by interpreting the ambiguous and liberally to include both and and or.” (CRST Expedited, supra, 112 Cal.App.5th at p. 883, rev.gr.)

“The Leeper court overlooked these principles by construing Labor Code section 2699, subdivision (a) as requiring an individual PAGA claim, and not only declaring that the complaint ‘necessarily’ included such a claim but also requiring the plaintiff to arbitrate a claim she had never chosen to assert.” (Rodriguez, supra, 109 Cal.App.5th at p. 80, rev.gr.)

Read the Leeper opinion (CourtListener) →

Practice pointer

Open questions

Three, at minimum, will outlive the decision. First, the post-reform statute: the 2024 amendments (AB 2288/SB 92) apply to notices filed on or after June 19, 2024, and none of the three review-granted decisions construes the amended text; whichever way Leeper comes out, the same interpretive fight may replay under the reformed statute’s language and its revised standing and penalty provisions. Second, the demurrer question: if the Court affirms on Rodriguez-style pleading grounds — courts take the complaint as pled — it may leave open whether a headless complaint fails as a matter of law, inviting a second round of litigation at the pleading stage rather than on motions to compel. Third, the stay-and-preclusion machinery: Leeper flagged that an arbitrated individual claim may carry issue-preclusive consequences for the stayed representative claim (Leeper, supra, 107 Cal.App.5th at p. 1010, rev.gr., citing Rocha v. U-Haul Co. of California (2023) 88 Cal.App.5th 65, 69); if every PAGA action has an individual component, the sequencing rules of Adolph — and what an arbitrator’s “aggrieved employee” finding does to the court case — become the next battleground. Our Employment Docket page tracks the case; this analysis will be revised within days of the decision.