Opinion
B307872
10-18-2023
RUBY ANN MONDRAGON, Plaintiff and Respondent, v. SANTA ANA HEALTHCARE & WELLNESS CENTRE, LP et al., Defendants and Appellants
Fisher &Phillips, Grace Y. Horoupian, Christopher M. Ahearn, Raymond W. Duer; Zarmi Law and David Zarmi for Defendants and Appellants. Cohelan Khoury &Singer, Michael D. Singer, Kristina De La Rosa, Rosemary C. Khoury; Hekmat Law Group and Joseph M. Hekmat for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV26878, Rupert A. Byrdsong, Judge. Vacated and remanded with directions.
Fisher &Phillips, Grace Y. Horoupian, Christopher M. Ahearn, Raymond W. Duer; Zarmi Law and David Zarmi for Defendants and Appellants.
Cohelan Khoury &Singer, Michael D. Singer, Kristina De La Rosa, Rosemary C. Khoury; Hekmat Law Group and Joseph M. Hekmat for Plaintiff and Respondent.
WEINGART, J.
Plaintiff Ruby Ann Mondragon (Mondragon) sued her former employer, Santa Ana Healthcare &Wellness Centre (Santa Ana), seeking civil penalties under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) for various wage, meal break and rest period violations. Santa Ana moved to compel "individual" arbitration under the parties' arbitration agreement, which provides that arbitration shall be the exclusive forum for any dispute, and which prohibits employees from joining or bringing a "representative action" or "acting as a private attorney general or representative of others."
Unless otherwise specified, subsequent statutory references are to the Labor Code.
The trial court denied Santa Ana's motion, concluding that it was bound by the California Supreme Court decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian), which held that agreements to waive the right to bring PAGA representative actions are unenforceable. We agreed and affirmed the trial court's decision, but after we did, the United States Supreme Court issued an opinion in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S.__ [142 S.Ct. 1906, 213 L.Ed.2d 179] (Viking River) holding "that the [Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.)] preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate." (Id. at p.__ [142 S.Ct. at pp. 1924-1925].) The high court subsequently vacated the judgment in this case and remanded the matter to us with instructions to reconsider the case in light of its opinion in Viking River.
We invited both sides to submit supplemental briefing in the wake of the Supreme Court's order, and each side did so. Both sides agree, as do we, that Viking River invalidates our prior holding that the arbitration agreement was unenforceable, at least as to Mondragon's claims based on harms she alleges she personally suffered. The parties differ as to the outcome, however. Santa Ana argues that we should direct the court to enter a new order granting the motion to compel arbitration of Mondragon's individual claims. Santa Ana concedes that the representative PAGA claims, in which Mondragon alleged that Santa Ana violated the Labor Code with respect to other employees, are "unwaivable." (Iskanian, supra, 59 Cal.4th at p. 383; see Viking River, supra, 596 U.S. at p. .) Because the representative claims are not subject to arbitration under the arbitration agreement, Santa Ana contends those claims should remain stayed pending the outcome of the individual arbitration.
For her part, Mondragon argues that we should once again affirm the trial court's ruling denying the motion to compel arbitration, albeit on different grounds. According to Mondragon, Santa Ana waived its right to compel arbitration by litigating the case in court for nearly a year before filing its motion to compel. In the alternative, Mondragon contends that Santa Ana is not entitled to compel arbitration because all of Mondragon's claims are outside the scope of the arbitration agreement.
We find both parties' proposals unpersuasive in part. We disagree with Mondragon that her individual claims are outside the scope of the arbitration agreement, and we decline to rule on whether Santa Ana waived its right to arbitrate. The latter is a primarily factual question (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 962) that is best left for the trial court to decide in the first instance upon remand. Although we see no objection in principle to Santa Ana's proposal to stay the representative claims if the court indeed orders arbitration of the individual claims, the management of litigation while arbitration is pending is a matter for the discretion of the trial court. (See Barrera v. Apple American Group LLC (2023) 95 Cal.App.5th 63, 95.)
BACKGROUND
From December 18, 2017 to April 3, 2019, Mondragon was employed by Santa Ana as a nurse and medication technician. Throughout her employment Mondragon worked at Country Villa Plaza, a skilled nursing facility operated by Santa Ana. On December 18, 2017, as a condition of her employment, Mondragon signed an agreement to be bound by an alternative dispute resolution (ADR) policy (the arbitration agreement).
Additional defendants in this action include Country Villa Plaza, Rockport Healthcare Support Services, LLC, and Rockport Administrative Services, LLC. We use the term "Santa Ana" throughout this opinion to collectively refer to all defendants.
The ADR policy, which spans three pages, is followed by the "agreement to be bound by [ADR] policy" (capitalization and bold omitted), which spans two pages and repeats many of the same provisions.
A. The Arbitration Agreement
The ADR policy states, in relevant part: "The ADR [p]olicy will be mandatory for ALL DISPUTES ARISING BETWEEN EMPLOYEES, ON THE ONE HAND, AND YOUR EMPLOYER, AND/OR ITS EMPLOYEES AND OFFICERS . . . ON THE OTHER HAND.... [¶] For parties covered by this [ADR] [p]olicy, alternative dispute resolution, including final and binding arbitration, is the exclusive means for resolving covered disputes .... [¶] . . . [¶] Covered disputes include any dispute arising out of or related to my employment, the terms and conditions of my employment and/or the termination of your employment ...."
The ADR policy also contained a class action waiver: "I understand and agree this ADR [p]rogram prohibits me from joining or participating in a class action or representative action, acting as a private attorney general or representative of others, or otherwise consolidating a covered claim with the claim of others. Under this [p]olicy, no arbitrator shall have the authority to order such class action or representative action."
The separate document signed by Mondragon entitled "agreement to be bound by [ADR] policy" (capitalization and bold omitted) reiterated that the "ADR [p]olicy is understood to apply to all disputes relating to my employment, the terms and conditions of my employment," and also reiterated the class/representative action waiver, stating: "I agree this ADR [p]olicy prohibits me from joining or participating in a class action or representative action, acting as a private attorney general or representative of others, or otherwise consolidating a covered claim with the claims of others."
B. The Complaint for Civil Penalties under the PAGA
1. The Complaint
On July 31, 2019, after the requisite 65-day notice period,Mondragon filed a "PAGA representative action" against Santa Ana, seeking civil penalties on behalf of herself and other aggrieved employees for a variety of wage, meal break, and rest period violations. The complaint pleaded nine causes of action, each stating that Mondragon was proceeding "as a representative of the general public," and was seeking "to recover any and all penalties for each and every violation, in an amount according to proof, as to those penalties that are otherwise only available in public agency enforcement actions."
Section 2699.3 of the PAGA requires a plaintiff to "notify the employer and the Labor and Workforce Development Agency (LWDA) of the specific labor violations alleged, along with the facts and theories supporting the claim." (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81; see § 2699.3, subd. (a)(1)(A).) The employee may commence a PAGA action only "[i]f the [LWDA] does not investigate, does not issue a citation, or fails to respond to the notice within 65 days." (Kim, supra, at p. 81; see § 2699.3, subd. (a)(2).) On May 16, 2019, Mondragon sent the requisite PAGA notice to California's LWDA and Santa Ana, detailing the facts and theories in support of her allegations of Labor Code violations.
In her prayer for relief, Mondragon again stated that she sought "[m]aintenance of this claim as a [r]epresentative [a]ction under the PAGA" and prayed for judgment "only as to those remedies which are permissible . . . pursuant to the PAGA."
2. Background on the PAGA
The Legislature enacted the PAGA in 2003 after deciding that limited labor law enforcement resources made additional private enforcement necessary" 'to achieve maximum compliance with state labor laws.'" (Iskanian, supra, 59 Cal.4th at p. 379, quoting Arias v. Superior Court (2009) 46 Cal.4th 969, 980.)
"The purpose of the PAGA is not to recover damages or restitution, but to create a means of 'deputizing' citizens as private attorneys general to enforce the Labor Code." (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 501.) Seventy-five percent of any penalties collected by a PAGA representative are distributed to the LWDA, while the remaining 25 percent are distributed to the aggrieved employees. (§ 2699, subd. (i).)
C. The Motion to Compel Individual Arbitration
On July 24, 2020, Santa Ana moved to compel "individual (and not collective or representative) arbitration" arguing that the California Supreme Court's holding in Iskanian-that California public policy bars the waiver of PAGA representative claims-was wrongly decided and had since been further undermined by United States Supreme Court precedent defining the broad preemptive scope of the FAA. Santa Ana stated the court should "dismiss this litigation or, in the alternative, stay the proceedings pending the outcome of [Mondragon's individual] arbitration."
On August 17, 2020, the court denied the motion at a hearing with the parties, stating "the Iskanian case is still the good-to-go authority on this issue." Later that day, the trial court issued a minute order and statement of decision summarizing its ruling.
DISCUSSION
A. The FAA
In 1925, the FAA was enacted in response to widespread judicial hostility to arbitration agreements. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 [131 S.Ct. 1740, 179 L.Ed.2d 742] (Concepcion).) Section 2 of the FAA-its primary substantive provision-states in relevant part: "A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." (9 U.S.C. § 2.)
The final clause of section 2, the FAA's savings clause, "permits agreements to arbitrate to be invalidated by 'generally applicable contract defenses, such as fraud, duress, or unconscionability,' but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue." (Concepcion, supra, 563 U.S. at p. 339.) Moreover, even if a state-law rule is "generally applicable," it is preempted if it conflicts with the FAA's objectives. (Concepcion, supra, at p. 341.)
For example, in Concepcion, the United States Supreme Court held that the FAA preempted California's rule classifying class action or collective action waivers in consumer contracts of adhesion as unconscionable. (Concepcion, supra, 563 U.S. at pp. 340-352.) The Concepcion court noted that although California's rule did not explicitly discriminate against arbitration (see id. at pp. 341-343), it "interfer[ed] with fundamental attributes of arbitration" (id. at p. 344), by effectively imposing formal classwide arbitration procedures on the parties against their will. (Id. at pp. 345-347.) The rule was therefore preempted by the FAA. (Concepcion, supra, at p. 352.)
B. The Iskanian Rule
In Iskanian, the plaintiff-employee signed an agreement which provided that" 'any and all claims' arising out of his employment were to be submitted to binding arbitration before a neutral arbitrator" and that neither the employee nor the employer could" 'assert class action or representative action claims against the other.'" (Iskanian, supra, 59 Cal.4th at p. 360.) The employee subsequently brought both a class action and a PAGA representative action against his employer. (Iskanian, supra, at p. 361.)
The Iskanian court first addressed the employee's class action waiver and determined that, under Concepcion, the refusal to enforce a class action waiver in an employment arbitration agreement would conflict with the FAA by interfering with the fundamental attributes of arbitration. (Iskanian, supra, 59 Cal.4th at p. 364.) The court, however, reached a different conclusion on the waiver of the employee's PAGA action.
The court held that a complete ban on PAGA actions was contrary to public policy, and unenforceable as a matter of state law, because it would "disable one of the primary mechanisms for enforcing the Labor Code"-the use of deputized citizenemployees to augment the limited enforcement capability of the LWDA and pursue the civil penalties used to deter such violations. (Iskanian, supra, 59 Cal.4th at p. 383.) The court held that the rule did not conflict with the FAA because the FAA was intended to govern "the resolution of private disputes, whereas a PAGA action is a dispute between an employer and the state . . . [a]gency." (Iskanian, supra, at p. 384.) The court analogized a PAGA claim to a qui tam action and stated that such actions generally fall outside the FAA's purview. (Iskanian, supra, at pp. 382, 387.)
Subsequent cases held that under Iskanian, PAGA claims are indivisible, and "cannot be split into an arbitrable individual claim and a nonarbitrable representative claim." (Williams v. Superior Court (2015) 237 Cal.App.4th 642, 649.) The Williams court explained that the "petitioner 'does not bring the PAGA claim as an individual claim, but "as the proxy or agent of the state's labor law enforcement agencies."' [Citation.] Accordingly, petitioner cannot be compelled to submit any portion of his representative PAGA claim to arbitration ...." (Ibid.) The court in Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408 agreed, reasoning that if an employer could compel separate arbitration of individual claims, it would frustrate the purposes of the PAGA. Under Iskanian, "an employer is not permitted to impose arbitration provisions that impede an aggrieved employee's ability to bring a PAGA claim, which is' "fundamentally a law enforcement action designed to protect the public." '" (Perez, supra, at p. 421, quoting Iskanian, supra, 59 Cal.4th at p. 381.)
C. Viking River and Adolph
Although the United States Supreme Court in Viking River held "that the FAA preempts the rule of Iskanian" in part (Viking River, supra, 596 U.S. at p.__ ), the court agreed with many of Iskanian's conclusions. The court accepted the characterization of PAGA claims as "a 'type of qui tam action,' [citation] . . . in which the employee plaintiff sues as an' "agent or proxy"' of the State." (Viking River, supra, at p.__ , fn. omitted, quoting Iskanian, supra, 59 Cal.4th at pp. 382, 380.) In addition, the court agreed that California law, in rendering the right to bring a PAGA action unwaivable (see Iskanian, supra, at pp. 382-383), is not preempted by the FAA. (Viking River, supra, at p.__ .) The court reasoned that PAGA claims are compatible with arbitration in a way that class-actions are not. PAGA claims, in which a single plaintiff brings claims on behalf of the state, "do not present the problems of notice, due process, and adequacy of representation that render class arbitration inconsistent with arbitration's traditionally individualized form." (Viking River, supra, at p. .)
Nevertheless, the Viking River court disagreed with Iskanian to the extent it barred the enforcement of agreements to arbitrate only those claims based on an employee's individual damages. (Viking River, supra, 596 U.S. at p.__ [142 S.Ct. at pp. 1923-1924].) The PAGA creates "what is effectively a rule of claim joinder" (Viking River, supra, at p.__ ), in that it allows a plaintiff to bring claims on behalf of herself together with unrelated claims on behalf of other employees. By barring the severance of the plaintiff's individual claims from the representative claims, the Iskanian rule "prohibits parties from contracting around this joinder device." (Viking River, supra, at p. .) This rule "would defeat the ability of parties to control which claims are subject to arbitration" (id. at p.__ ) and is therefore preempted by the FAA. (Viking River, supra, at p.__[142 S.Ct. at p.__1925].)
The court in Viking River thus reversed the trial court's order and held that the defendant was "entitled to compel arbitration of [the plaintiff]'s individual claim." (Viking River, supra, 596 U.S. at p.__[142 S.Ct. at p.1925].) In the court's view, the severance of the plaintiff's individual claim was fatal to her representative claims: "as we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA's standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. [Citation.] . . . As a result, [the plaintiff] lacks statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims." (Id. at p.__ .)
In her concurring opinion in Viking River, Associate Justice Sonia Sotomayor pointed out that the question of standing under PAGA is a matter of state law. (Viking River, supra, 596 U.S. at p. __ .) "The highest court of each [s]tate . . . remains 'the final arbiter of what is state law'" (Montana v. Wyoming (2011) 563 U.S. 368, 378, fn. 5 [131 S.Ct. 1765, 171 L.Ed.2d 799]), and thus, Justice Sotomayor noted, "if this [c]ourt's understanding of state law is wrong, California courts, in an appropriate case, will have the last word." (Viking River, supra, at p. [conc. opn. of Sotomayor, J.].)
Such an appropriate case arrived recently in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104 (Adolph). In that case, our Supreme Court held that, "Where a plaintiff has brought a PAGA action comprising individual and non-individual claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA." (Id. at p. 1114.) The court explained that the PAGA imposes only two requirements for standing: "The plaintiff must allege that he or she is (1) 'someone "who was employed by the alleged violator"' and (2) someone' "against whom one or more of the alleged violations was committed."' ([Kim v. Reins International California, Inc., supra, 9 Cal.5th] at pp. 83-84, quoting § 2699, subd. (c).)" (Adolph, supra, at p. 1120.) Under this scheme, "a worker becomes an 'aggrieved employee' with standing to litigate claims on behalf of fellow employees upon sustaining a Labor Code violation committed by his or her employer. [Citations.] Standing under PAGA is not affected by enforcement of an agreement to adjudicate a plaintiff's individual claim in another forum. Arbitrating a PAGA plaintiff's individual claim does not nullify the fact of the violation or extinguish the plaintiff's status as an aggrieved employee ...." (Id. at p. 1121.)
D. Mondragon's Additional Objections to the Motion to Compel
For purposes of the issues presented on appeal, the arbitration agreement Mondragon signed is indistinguishable from the one at issue in Viking River, supra, 596 U.S. at page . As with the plaintiff in that case, Mondragon agreed to waive her right to bring a representative PAGA claim, and agreed to submit any individual claim against her employer to arbitration. It follows that under Viking River, Santa Ana "is entitled to compel arbitration of [Mondragon]'s individual claim" (Viking River, supra, at p.__ ), even as, under Adolph, she may potentially maintain her representative claims in court.
Mondragon contends this conclusion is premature, and contends there are two alternative grounds for denying the motion to compel arbitration regardless of Viking River. She raised both of these arguments before the trial court, but because the Iskanian rule was dispositive prior to Viking River, neither we nor the trial court considered the merits of these additional arguments. We now address them in turn.
1. The Scope of the Arbitration Agreement
Mondragon argues first that the motion to compel arbitration should again be denied because her PAGA claim is outside the scope of the arbitration agreement. The arbitration agreement excludes from its coverage "any claim or dispute which the courts of this jurisdiction have expressly held are not subject to mandatory arbitration." Mondragon argues that this excludes her PAGA claim from arbitration under the agreement because, "At the time the agreement was signed, the California Supreme Court had confirmed that pre-dispute waivers of the right to assert PAGA representative actions in any forum are unenforceable."
We are not persuaded. Iskanian held that "an employee's right to bring a PAGA action is unwaivable" (Iskanian, supra, 59 Cal.4th at p. 383), not that PAGA claims could not be subject to mandatory arbitration under an arbitration agreement. As a Ninth Circuit court explained, "The California Supreme Court's decision in Iskanian expresses no preference regarding whether individual PAGA claims are litigated or arbitrated.... The Iskanian rule does not prohibit the arbitration of any type of claim." (Sakkab v. Luxottica Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 434.) Indeed, the Viking River court held that the Iskanian rule barring the waiver of PAGA actions did not conflict with the FAA in part because PAGA actions are compatible with arbitration. (Viking River, supra, 596 U.S. at pp.__ -__ [142 S.Ct. at pp. 1920-1923.])
2. Waiver of Arbitration
Next, Mondragon contends that Santa Ana waived its right to enforce the arbitration agreement by unreasonably delaying the filing of the motion to compel. Mondragon filed her complaint in July 2019, but according to Mondragon, Santa Ana did not mention the possibility of arbitration until May 2020, and did not file its motion to compel until July 2020. In the meantime, Santa Ana filed an answer to the complaint that did not mention the arbitration agreement, and participated in an unsuccessful attempt to mediate the dispute. Santa Ana also requested multiple extensions to its deadline to respond to Mondragon's discovery requests, though it apparently did not propound discovery of its own.
" 'Generally, the determination of waiver is a question of fact'" (Davis v. Shiekh Shoes, LLC, supra, 84 Cal.App.5th at p. 962, quoting St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196), and" 'it is the province of the trial court to decide questions of fact'" (In re Zeth S. (2003) 31 Cal.4th 396, 405) in the first instance. Although we have some authority to make findings of fact," 'the authority should be exercised sparingly.'" (Ibid.) It seems particularly unwise to attempt to resolve the question of waiver for the first time here because the United States Supreme Court recently released an opinion in Morgan v. Sundance, Inc. (2022) 596 U.S. 411 [142 S.Ct. 1708, 212 L.Ed.2d 753] on waiver of the right to arbitrate under federal law, and the parties have not had an opportunity to fully brief the question of how Morgan affects the analysis of waiver in this case. We will therefore allow the trial court to decide the question of waiver for the first time upon remand.
E. Proceedings Upon Remand
In its supplemental brief, Santa Ana proposes procedures for the trial court to follow in handling the litigation if Mondragon's individual claim is sent to arbitration while her representative claims remain in court. That question is premature pending the resolution of the waiver issue outlined above. Even if the trial court does ultimately order arbitration of the individual claim," 'We leave management of the superior court litigation during the pendency of arbitration to the trial court's sound discretion.'" (Barrera v. Apple American Group LLC, supra, 95 Cal.App.5th at p. 95, quoting Nickson v. Sherman, Inc. (2023) 90 Cal.App.5th 121, 135.)
We agree with Santa Ana, however, that the potential submission of only part of the case to arbitration does not present any insuperable difficulties. In Adolph, the plaintiff proposed a procedure for the trial court to follow in handling a PAGA case subject to arbitration only as to the individual claims. "First, the trial court may exercise its discretion to stay the non-individual claims pending the outcome of the arbitration pursuant to section 1281.4 of the Code of Civil Procedure. Following the arbitrator's decision, any party may petition the court to confirm or vacate the arbitration award under section 1285 of the Code of Civil Procedure. If the arbitrator determines that Adolph is an aggrieved employee in the process of adjudicating his individual PAGA claim, that determination, if confirmed and reduced to a final judgment (Code Civ. Proc., § 1287.4), would be binding on the court, and Adolph would continue to have standing to litigate his non-individual claims. If the arbitrator determines that Adolph is not an aggrieved employee and the court confirms that determination and reduces it to a final judgment, the court would give effect to that finding, and Adolph could no longer prosecute his non-individual claims due to lack of standing." (Adolph, supra, 14 Cal.5th at pp. 1123-1124.)
The defendant objected to the proposed procedure on the ground that it "would be impractical or would require relitigating Adolph's status as an aggrieved employee in the context of his non-individual claims." (Adolph, supra, 14 Cal.5th at p. 1124.) Our Supreme Court did not deem the plaintiff's proposed procedure mandatory, but the court saw "no basis for [the defendant]'s concern." (Ibid.; see also Rocha v. U-Haul Co. of California (2023) 88 Cal.App.5th 65, 76-82 [an arbitrator's finding on individual claims is binding under the doctrine of issue preclusion as to standing to bring representative PAGA claims].) In addition, this procedure is consistent with the FAA requirement that when a court orders arbitration on an issue in any proceeding before the court, the court upon application or motion "shall" stay proceedings pending completion of the arbitration. (9 U.S.C. § 3.) Indeed, in a prior PAGA case involving a potential overlap between issues subject to arbitration and those to be decided in court, we stated that "the trial court must order an appropriate stay of trial court proceedings." (Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 966.)
In short, if the case does proceed to arbitration of Mondragon's individual claims, we have no reason to believe the trial court cannot manage the remainder of the case without prejudice to either party.
DISPOSITION
The order denying the motion to compel arbitration is vacated, and the case is remanded for further proceedings in conformity with this opinion. Each party shall bear its own costs on appeal.
We concur: ROTHSCHILD, P. J. BENDIX, J.