How the moving papers shaped the ruling on a motion to compel arbitration in Castillo v. Belkorp
Motion drafting around a split of authority is where many motions are won or lost before the hearing. In Castillo v. Belkorp AG, LLP, the trial court denied an employer’s motion to compel arbitration of a PAGA action after noting that the motion relied on a case under Supreme Court review without saying so, and never addressed the published decision going the other way.
What the trial court said about the motion
The employee pleaded only nonindividual PAGA claims. The employer moved to compel arbitration, relying on Leeper v. Shipt, Inc., which held that a PAGA action must include both individual and nonindividual claims. CRST Expedited had reached the opposite conclusion. (The Supreme Court later granted review in CRST as well.)
According to the Court of Appeal, the trial court noted “a breach of the duty of candor based on Belkorp’s failure to advise that” Leeper had been under review since April 16, 2025. On the merits, the trial court explained that the Supreme Court’s order under rule 8.1115(e)(3) “permitted trial courts to use Leeper to show a split of authority,” and so “the Court must weigh the logic of both cases.” A court weighing two lines of authority needs the movant’s argument on both. Instead, the trial court wrote, Belkorp “declined to address CRST in its initial filing or its reply.” It added that the decision not to address that authority “appears to this Court to be a concession on the merits.” It followed CRST and denied the motion.
Did the concession decide the appeal?
No. The Court of Appeal declined to find waiver or a concession. By relying on Leeper, it said, Belkorp “was implicitly urging the court to follow Leeper and to reject CRST.” It then reached the merits and affirmed anyway, holding that an employee may bring a PAGA action of only nonindividual claims and that those claims are not arbitrable. Our full write-up of the holding covers that analysis.
One more point surfaced at oral argument, where Belkorp suggested that an arbitrator must decide the standing of all PAGA plaintiffs. The court noted that the suggestion came “without citation to authority” and rejected it on the merits, explaining that the procedure “would create barriers and delays that in no way further the purpose of PAGA” and was at odds with the recognition that nonindividual PAGA claims are not arbitrable.
Three motion-drafting lessons
- Disclose the grant of review. A case under review can still be cited to show a split, but the party citing it should tell the court its status. Here the trial court treated the omission as a breach of the duty of candor.
- Confront the contrary authority in the moving papers. When the courts of appeal are split, the trial court has to choose. A motion that explains why its side of the split is right gives the court a reason to choose it.
- Put every theory, and its authority, in the papers. Oral argument is a poor place to introduce a procedure the briefs do not support. In Castillo, a suggestion offered at argument without citation to authority did not persuade the court. As a general matter, an argument the papers never develop gives the opposing party no fair chance to answer it and the court no chance to study it.
Key takeaways
- The trial court in Castillo noted a breach of the duty of candor because the motion did not disclose that Leeper was under Supreme Court review.
- The trial court said the failure to address CRST in the motion or reply appeared to be a concession on the merits.
- The Court of Appeal declined to find a concession but affirmed on the merits.
- A suggestion at oral argument that an arbitrator must decide PAGA standing, made without citation to authority, was rejected.
Why motion drafting deserves a second set of eyes
Most motions are decided on the papers, and the hearing is rarely the place to fix them. The record built in the trial court is the record an appellate court reviews. A motion that discloses the status of its authorities, answers the contrary cases and states every theory gives the trial judge a reason to rule for the movant and preserves the arguments if the ruling is appealed. Gelb Law APC drafts and reviews law-and-motion papers for trial counsel, including motions to compel arbitration, anti-SLAPP motions, demurrers, summary judgment and post-trial motions. If a motion in your case raises a split of authority, talk to us before it is filed.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864