Out in the cold, dark night rides the headless horseman, and he has a grievance. It is with his former employer who he thinks (with his head in hand) has treated his former colleagues poorly and violated the California Labor Code. Though he no longer can help himself in court as he has signed an arbitration agreement, he selflessly seeks to litigate for others among that headcount. But how to press such claims as he no longer can be counted among them? In court? Alas, no, he signed that arbitration agreement. What to do? “PAGA,” groans a voice in the mist. “PAGA.” But how?

With a nod to creative thinking, a number of PAGA plaintiffs’ lawyers have filed what are known as “headless” PAGA lawsuits: PAGA plaintiffs who have signed arbitration agreements with their employers draft their complaints to disavow a potential individual recovery that would need to be arbitrated and seek only relief in court for the other allegedly aggrieved employees, and not for the plaintiff. With this method, they hope to avoid having their individual claims compelled to arbitration and the representative PAGA action stayed. The results have been mixed. Some California courts have allowed headless PAGA claims to go forward, while at least one Court of Appeal has said no. So unsettled is the landscape that the California Supreme Court decided to weigh in, on its own motion. 

Here is how the drama unfolded.

In a typical PAGA action, plaintiffs seek relief for both themselves and a representative group of other allegedly aggrieved employees. In Viking River, the U.S. Supreme Court noted that PAGA claims consist of an individual claim and a representative claim. When a PAGA plaintiff has signed an enforceable arbitration agreement and the defendant employer moves to compel arbitration, courts tend to compel arbitration of the plaintiff’s individual claim and stay the representative aspect of the case pending the outcome of the arbitration on the plaintiff’s individual claims. 

In the first reported example of a headless PAGA claim, Division Six of the Second Appellate District in Balderas v. Fresh State Harvesting, Inc. reversed the trial court’s order striking the plaintiff’s headless PAGA complaint, which the trial court had done on its own motion. In doing so, the Balderas appellate court found “[t]he inability for an employee to pursue an individual PAGA claim does not prevent that employee from filing a representative PAGA action.” 101 Cal. App. 5th 533, 537 (2024).

Division One of the Second District took a different path in Leeper v. Shipt, Inc., 107 Cal.App.5th 1001 (2024). There the appellate court reversed a trial court’s decision denying a motion to compel arbitration where the plaintiff, who had signed an arbitration agreement, had disavowed seeking individual relief. The Court of Appeal held that “any PAGA action necessarily includes both an individual PAGA claim and a representative PAGA claim.” As a consequence, a PAGA lawsuit could not go forward where a plaintiff has disavowed seeking an individual recovery. In reaching this conclusion, the Leeper court analyzed the statutory text and legislative history of PAGA itself, noting “that the Legislature deliberately chose the word ‘and’ and rejected the word ‘or’ in the statutory description of a PAGA action as ‘a civil action . . . on behalf of [the plaintiff] and other current and former employees.’” (emphasis in original).

At least two plaintiffs’ law firms asked the California Supreme Court to de-publish the Leeper opinion, which would have stripped it of its precedential value. The California Supreme Court denied those requests, however, and took Leeper up on review on its own motion in April of this year. This was an extraordinary move by the California Supreme Court, as it rarely takes action without at least one of the parties to the lawsuit filing a petition for review. The California Supreme Court also deferred further action in another “headless” PAGA case, Rodriguez v. Packers Sanitation Services LTD, 332 Cal. Rptr. 3d 307 (2025)) pending its ruling in Leeper.

In Rodriguez, the First Division of the Fourth Appellate District affirmed a trial court’s ruling denying the employer’s motion to compel arbitration, finding the plaintiff was “not seeking individual PAGA relief,” thus there was no individual claim to arbitrate. The Rodriguez court specifically disagreed with the Leeper court, finding “just 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.” Rather, the Rodriguez court concluded that the Leeper court appeared to improperly “insert into the plaintiff’s complaint a missing claim,” and noted that “in our legal system it is the plaintiff, not the court, who is responsible for prosecuting a civil action.”The Rodriguez court did, however, make an interesting observation along the way; while noting that it was exclusively resolving a motion to compel arbitration, the Rodriguez court commented that “plaintiff’s failure to assert an individual PAGA claimmay mean the complaint fails to comply with [California Labor Code] section 2699, subdivision (a).”

In Leeper, the California Supreme Court will answer two questions. First, whether a PAGA plaintiff’s representation of and inclusion in a group of “aggrieved” employees necessitates them seeking individual relief as well, regardless of how they draft their PAGA complaint; and second, whether a PAGA plaintiff can choose to bring only a non-individual PAGA claim and forego individual relief, thus avoiding their obligation to individually arbitrate.

So, for now, the headless horseman wanders aimlessly through the thickening mud. The California Supreme Court may not answer those two questions until sometime in 2026, if not later.