CalChamber in Court: State High Court Decisions: One Victory, One Mixed​​​​​​​​​

One decision issued by the California Supreme Court this week marked a victory for the business perspective on defibrillators, while the second was a partial win affecting arbitration agreements.

The California Chamber of Commerce joined the Civil Justice Association of California (CJAC) in filing friend-of-the-court briefs in both cases.

In Verdugo v. Target Stores, the state high court agreed with the CalChamber/CJAC argument that Target had no common law duty to have and make available an automatic external defibrillator for use in a medical emergency.

The court did say it is up to the Legislature to create such a duty if one is needed.

In Iskanian v. CLS Transportation, the court agreed with the CalChamber and CJAC that because federal law preempts the state, a waiver of class action lawsuits in an arbitration agreement may be allowed.

But the court disagreed with CalChamber/CJAC in ruling that lawsuits under the state Private Attorneys General Act (PAGA) cannot be waived in an arbitration agreement.


In the Verdugo case, the mother and brother of Mary Ann Verdugo, who died of sudden cardiac arrest (SCA) in 2008 while shopping at a Target store in California, alleged that Target Corp. had a common law duty to have an Automatic External Defibrillator (AED) on its premises, which Target did not have when Verdugo suffered the cardiac arrest.

Although a 911 call was made promptly when Verdugo suffered the SCA, it took paramedics several minutes to reach her. By the time they arrived, Verdugo had died.

The California Legislature has enacted numerous laws governing the placement and attendant responsibilities of certain types of facilities for maintaining, testing, and training employees about the use of defibrillators.

For example, health studios are required to have AEDs available. The CalChamber/CJAC friend-of-the-court brief pointed out that the Legislature exempts retail stores from any requirement to have AEDs on the premises.

Specifically, California Health and Safety Code 1797.196(f) states in plain language that: “[n]othing in this section or Section 1714.21 may be construed to require a building owner or building manager to acquire and have installed an AED in any building.”

This plain language, the CalChamber and CJAC argued, clearly shows that the defendant is not under a duty to place a defibrillator on its property.

The California Supreme Court agreed that Target had no common law duty to have and make available an AED, also noting that every state appellate court decision on the question has determined that a business’s common law duty to assist patrons who become ill on the business’s premises does not impose such an obligation.

Arbitration Agreements

In the Iskanian case, an employee tried to bring a class action lawsuit on behalf of himself and similarly situated employees for the employer’s alleged failure to compensate its employees for, among other things, overtime and meal and rest periods. The employee had entered into an arbitration agreement that waived the right to class action lawsuits.

The CalChamber and CJAC argued that under the U.S. Supreme Court decision in AT&T Mobility LLC v. Concepcion, the California law (as outlined in Gentry v. Superior Court (2007) 42 Cal.4th 443) invalidating arbitration agreements with class waivers was preempted by the Federal Arbitration Act (FAA).

The California Supreme Court agreed.

The employee in the Iskanian case also tried to file a lawsuit under PAGA, which authorizes an employee to seek civil penalties on behalf of the state against his/her employer for Labor Code violations against the employee and fellow employees, with most of the proceeds of the litigation going to the state.

The California Supreme Court concluded that an arbitration agreement requiring an employee as a condition of employment to give up the right to file lawsuits under PAGA is contrary to public policy. “[T]he FAA does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract.”

Staff Contacts: Erika Frank, Heather Wallace

Erika Frank
Erika Frank, longtime general counsel and executive vice president of legal affairs for the CalChamber, accepted an of counsel position in September 2021 at the Shaw Law Group, a leading employment law firm in Sacramento. She leveraged more than two decades of legal, governmental and legislative experience in advising the CalChamber and its members on the impact that labor laws, court decisions and regulations will have on employers. She has been the most frequent host of The Workplace podcast; oversaw and contributed to CalChamber labor law and human resources compliance publications; co-produced and presented webinars and seminars; and headed the Labor Law Helpline. She holds a B.A. in political science from the University of California, Santa Barbara, and earned her J.D. from the McGeorge School of Law, University of the Pacific.