Judge: Barbara M. Scheper, Case: BC710735, Date: 2023-03-01 Tentative Ruling
Case Number: BC710735 Hearing Date: March 1, 2023 Dept: 30
Calendar No.
Recinos vs. Pacific
American Fish Co. Inc., et. al.,
Case No. BC710735
Tentative Ruling
re: Defendant’s Motion to Compel
Arbitration
Defendant PriorityWorkforce, Inc. (Defendant)
moves to compel Plaintiff Edwin Recinos’s (Plaintiff) individual claims under
the Private Attorneys General Act (PAGA) to binding arbitration and dismiss
Plaintiff’s remaining 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 operative Second
Amended Complaint (SAC) asserts one cause of action against Defendant, his
former employer, and Defendant Pacific American Fish Co., Inc., a client of
Defendant, for alleged PAGA violations including failure to provide meal and
rest breaks, inaccurate wage statements, and failure to pay wages. (SAC ¶¶ 7-14.)
Defendant presents an Arbitration
Agreement (the Agreement) between Plaintiff and Defendant dated August 14,
2014. (Cox Decl. ¶ 6, Ex. 1.) The Agreement provides that the parties “agree to
arbitrate any and all claims and disputes, claims, or controversies (‘claims’)
they may have against each other,” and that “the parties agree that each will
not assert class action or representative action claims against the other in
arbitration and otherwise.” (Ibid.) The Agreement also contains a
severability clause providing, “[a] court or other entity construing this
Agreement should administer, modify, or interpret it to the extent and such
manner as to render it enforceable.” (Id. p. 2.)
Plaintiff does not dispute the
existence of the Agreement or its application to his “individual” PAGA claims
pursuant to the U.S. Supreme Court’s decision in Viking River Cruises, Inc.
v. Moriana (2022) 142 S.Ct. 1906 (Viking River). However, Plaintiff
requests that the Court stay this action as to his representative PAGA claims
pending the decision of the California Supreme Court 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 that a stay is
proper.
In Viking River, after finding that the
plaintiff’s individual PAGA claims were subject to arbitration, the Court
considered whether the plaintiff still possessed standing to maintain her
non-individual claims, and concluded that she did not: “[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.) Defendant argues that this Court should
follow the reasoning of the majority in Viking River. However, Justice
Sotomayor’s concurrence in Viking River 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 (Sotomayor, S.,
concurring).)
In Adolph v. Uber Technologies,
Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App., Apr. 11, 2022), review
granted (Cal. July 20, 2022), the California Supreme Court has taken up the
issue of whether a plaintiff retains statutory standing to maintain
representative PAGA claims after his individual claims have been compelled to
arbitration. Given that the decision in Adolph will be controlling on
the issue at hand, a stay of this action pending issuance of Adolph is
proper, despite the resulting delay. (See Dominguez v. Sonesta International
Hotels Corporation (N.D. Cal., Jan. 3, 2023) 2023 WL 25707, at *7 [“[w]hile
the decision may not issue for many months, there is a significant likelihood
that the California Supreme Court will, in fact, issue a decision in Adolph
that will provide important guidance with respect to how the representative
PAGA claims should be handled.”].)