Judge: Barbara M. Scheper, Case: 21STCV08700, Date: 2023-05-10 Tentative Ruling




Case Number: 21STCV08700    Hearing Date: May 10, 2023    Dept: 30

Dept. 30

Calendar No. 10

Freed vs. Mashcole Property Management, Inc., et. al., Case No. 21STCV08700

 

Tentative Ruling re:  Defendant’s Motion to Compel Arbitration

 

Defendant Mashcole Property Management, Inc. (Defendant) moves to compel Plaintiff Jeremiah Freed’s (Plaintiff) individual claims under the Private Attorneys General Act (PAGA) to binding arbitration and to dismiss Plaintiff’s representative PAGA claims. The motion is granted as to Plaintiff’s individual PAGA claims. The Court stays this action as to Plaintiff’s representative PAGA claims.

 

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. § 1281.2, subds. (a), (b).)

A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) Such enforcement may be sought by a party to the arbitration agreement. (Code Civ. Proc., § 1280, subd. (e)(1).)

            The petition to compel arbitration functions as a motion and is to be heard in the manner of a motion, i.e., the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413–414.) The petition to compel must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218 (Condee).) 

            Once petitioners allege that an arbitration agreement exists, the burden shifts to respondents to prove the falsity of the purported agreement, and no evidence or authentication is required to find the arbitration agreement exists. (See Condee, supra, 88 Cal.App.4th at p. 219.) However, if the existence of the agreement is challenged, “petitioner bears the burden of proving [the arbitration agreement’s] existence by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413; see also Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1058–1060.)

 

Plaintiff’s Complaint asserts claims against Defendant, his former employer, under the Labor Code and PAGA for alleged violations of wage-related and meal and rest period provisions. Plaintiff has asserted both individual claims and “representative” PAGA claims on behalf of similarly situated employees. (Comp. ¶ 14.)

 

            Defendant moves to compel arbitration based on a “Mutual Agreement to Arbitrate Claims” (the Agreement) signed by Plaintiff as part of his onboarding process on October 10, 2019. (Senia Decl. ¶ 8, Ex. A.) Under the Agreement, Plaintiff and Defendant “agree to arbitrate before a neutral arbitrator any and all disputes or claims between [the parties] that arise out of or relate to [Plaintiff’s] recruitment, employment or separation from the Company.” (Senia Decl., Ex. A, p. 1.) The Agreement also includes a waiver of all claims brought “in any purported class[,] collective, or representative proceeding,” “regardless of whether the action is filed in arbitration or in court.” (Id. p. 3.)

 

Waiver

Plaintiff does not dispute the existence or the applicability of the Agreement to his individual claims, but argues that Defendant has waived its right to compel arbitration. The Court disagrees.

 

“[A]lthough voluntary arbitration agreements comply with public policy and enjoy specific enforcement under state law, a party to an arbitration agreement may by its conduct ‘waive’ its right to compel arbitration.” (Davis v. Blue Cross of Northern California (1979) 25 Cal.3d 418, 425.) “[N]o single test delineates the nature of the conduct of a party that will constitute such a waiver.” (Id. at 426.) A party resisting arbitration on the grounds of waiver “bears a heavy burden . . . and any doubts regarding a waiver allegation should be resolved in favor of arbitration.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.)

“In determining waiver, a court can consider “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether 'the litigation machinery has been substantially invoked' and the parties 'were well into preparation of a lawsuit' before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place'; and (6) whether the delay 'affected, misled, or prejudiced' the opposing party.” (Sobremonte v. Superior Ct. Bank of Am. Nat. Tr. & Sav. Ass'n (1998) 61 Cal.App.4th 980, 992.) “[W]hether litigation results in prejudice to the party opposing arbitration is critical in waiver determinations.”(Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 448.)

            Plaintiff commenced this action on March 5, 2021. Defendant filed its Answer on April 21, 2021, which asserted “Arbitration/Class Waiver Agreements” as an affirmative defense. (Answer ¶ 4.) Defendant then demanded arbitration in August 2021, after which Plaintiff requested that Defendant delay its Motion to Compel Arbitration so that the parties could attempt settlement. (Lambert Reply Decl. ¶ 3.) In October 2021, the parties agreed to stay formal discovery and litigation during meditation. (Lambert Reply Decl. ¶ 4.) On February 22, 2022, Plaintiff cancelled the scheduled mediation on the basis that he did not receive necessary discovery from Defendant. (Greifinger Decl. ¶ 15.) Defendant subsequently moved to compel arbitration on March 8, 2022. The action was then stayed on April 6, 2022, pending the decision of the U.S. Supreme Court in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 (Viking River).

These facts do not satisfy Plaintiff’s “heavy burden” to show waiver. Defendant’s actions were not inconsistent with the right to arbitrate; Defendant notified Plaintiff of its intention to compel arbitration at the outset of this action and filed its demand for arbitration shortly thereafter. Defendant’s delay in filing its motion was consistent with the parties’ mutual agreement to first attempt mediation. (Lambert Reply Decl. ¶ 3.) Plaintiff has also presented no evidence showing that he was prejudiced by Defendant’s conduct.

Representative PAGA claims

While the parties agree that Plaintiff’s individual claims are arbitrable pursuant to Viking River, Defendant argues that Plaintiff’s representative PAGA claims must be dismissed pursuant to the Agreement’s waiver of class, collective, or representative claims. (Senia Decl. ¶ 8, Ex. A, p. 3.) However, Viking River did not abrogate California law holding that a contractual waiver provision is invalid “if construed as a wholesale waiver of PAGA claims.” (Viking River, 142 S.Ct. at 1924; see Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383.) The section in the Agreement purporting to waive Plaintiff’s representative claims remains unenforceable based on this rule. As in Viking River, pursuant to the Agreement’s severability clause (Senia Decl., Ex. A, p. 5), Defendant may only “enforce the agreement insofar as it mandated arbitration of [plaintiff’s] individual PAGA claim.” (Viking River, 142 S.Ct. at 1925.)

The remaining question is whether Plaintiff has standing to assert his non-individual PAGA claims after his individual PAGA claims have been compelled to arbitration. In Viking River, the Court concluded that the plaintiff did not retain standing: “[A]s 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.” (Id. at 1925.)

 

However, Justice Sotomayor’s concurrence clarified that the issue of standing under PAGA was a question ultimately to be decided by California courts:

The Court concludes that the FAA poses no bar to the adjudication of respondent Angie Moriana's “non-individual” PAGA claims, but that PAGA itself “provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding.” Thus, the Court reasons, based on available guidance from California courts, that Moriana lacks “statutory standing” under PAGA to litigate her “non-individual” claims separately in state court. Of course, if this Court's understanding of state law is wrong, California courts, in an appropriate case, will have the last word.

(Viking River, 142 S.Ct. at 1925.)

            In Gregg v. Uber Technologies, Inc. (2023) 89 Cal.App.5th 786, the Court of Appeal concluded that “an alleged ‘aggrieved employee’ [Citation] is not stripped of standing to assert non-individual PAGA claims in court simply because he or she has been compelled to arbitrate his or her individual PAGA claim.” (Id. at 344; accord Nickson v. Shemran, Inc. (Cal. Ct. App. 2023) 306 Cal.Rptr.3d 835, 845.) The California Supreme Court has also taken up the issue of PAGA standing in Adolph v. Uber Technologies, Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App., Apr. 11, 2022), review granted (Cal. July 20, 2022). The Court agrees with the parties that a stay of the representative claims is appropriate pending issuance of the decision in Adolph.