Judge Bruce G. Iwasaki, Case Number: 23STCV12867, Date: 2023-08-25 Tentative Ruling

In this employment action filed on June 6, 2023, Plaintiff Russell Louis Parrish (Plaintiff) filed a single PAGA cause of action complaint against his former employer and their subsidiaries, parents, and agents, Pacific PG LLC (Pacific PG), PJ Cleveland LLC (PJ Cleveland), and PJ Escondido Inc. (PJ Escondido) (Defendant Entities), and against the owner of Defendant Entities, Ahmad R. Melezadeh (Melezadeh). The Complaint seeks relief for Plaintiff both individually and as a representative of other employees.

On July 27, 2023, Defendants Pacific PJ LLC, PJ Cleveland, LLC, PJ Escondido Inc., and Ahmad R. Malekzadeh filed a motion to compel arbitration pursuant to the parties’ arbitration agreements. In opposition, Plaintiff argues the arbitration agreements are unconscionable and Pacific PG LLC and Melezadeh lacks standing to compel the enforcement of these arbitration agreements.

Under Code of Civil Procedure section 1281.2, a court may order arbitration of a controversy if it finds that the parties have agreed to arbitrate that dispute. Because the obligation to arbitrate arises from contract, the court may compel arbitration only if the dispute in question is one in which the parties have agreed to arbitrate. (Weeks v. Crow (1980) 113 Cal.App.3d 350, 352.) Since arbitration is a favored method of dispute resolution, arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question. (Id. at p. 353; Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.)

In moving for arbitration, Defendants here request a court order compelling the parties to arbitrate all individual claims arising out of his employment with Defendants including his “individual PAGA claims,” and to stay Plaintiff’s non- arbitrable “representative PAGA claims” against Defendants pending resolution of the arbitration. (Mot., 20:20-28.)

In ruling on a petition to compel arbitration, a court must determine two threshold matters: first, whether a valid agreement to arbitrate exists; and second, whether that agreement encompasses the dispute at issue. (See Code Civ. Proc. § 1281.2.)

By way of background, Plaintiff was hired by Defendant PJ Cleveland on November 18, 2021 to work at Papa John’s Store #1336 in Escondido, California. (Neghabat Decl., ¶¶ 4-5.) Plaintiff signed an arbitration agreement with PJ Cleveland at the outset of his employment. (Neghabat Decl., ¶ 6, Ex. 2.) In February 2022, Defendant PJ Escondido bought Store #1336 and hired Plaintiff to continue working in his same position. (Neghabat Decl., ¶ 2; Rogan Decl., ¶¶ 2, 4-5.) Plaintiff signed a second arbitration agreement in relation to his employment with PJ Escondido. (Rogan Decl., ¶ 6, Ex. 3.)

Defendants now seek to compel arbitration based on these two agreements: the November 19, 2021 “Mutual Agreement to Arbitrate” signed while employed by Defendant PJ Cleveland (PJ Cleveland Agreement), and the December 18, 2022 “Dispute Resolution Agreement” signed while employed by PJ Escondido (PJ Escondido Agreement) (jointly, the Arbitration Agreements).

Defendants submit evidence that Plaintiff’s claims fall within the scope of arbitrable claims in both Arbitration Agreements. The PJ Cleveland Agreement specifically covers “all claims, disputes, and/or controversies . . . that Company may have against Employee or that Employee may have against Company or against its employees or agents in their capacity as employees or agents.” (Neghabat Decl., ¶ 6, Ex. 2.) Further, in the PJ Escondido Agreement, Plaintiff agreed to “utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to [Plaintiff’s] application for employment and/or employment by the Company. Such disputes include, but are not limited to, claims [Plaintiff] might bring against the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, any individual claims under the California Private Attorneys General Act (“PAGA”), and torts such as invasion of privacy, assault and battery, or defamation.” (Rogan Decl., ¶ 6, Ex. 3.)

Additionally, both Arbitration Agreements explicitly state that they are governed by the Federal Arbitration Act (FAA). First, the PJ Cleveland Agreement states: “Company and Employee agree that, except as provided in this Agreement, any arbitration shall be in accordance with the Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq.” (Neghabat Decl., ¶ 6, Ex. 2, at ¶ 5.) Second, the PJ Escondido Agreement states: “Any arbitration proceeding under this agreement shall proceed under and be governed by the Federal Arbitration Act (FAA) because both I and the Company are engaged in interstate commerce.” (Rogan Decl., ¶ 6, Ex. 3, at ¶ 7.) Importantly, Defendants also submit evidence demonstrating that Defendants engaged in interstate commerce in the course of its business. (Shamsaie Decl., ¶¶ 4–7, Ex. 1; Neghabat Decl., ¶ 7; Rogan Decl., ¶¶ 8–9, Ex. 4.)

In opposition, Plaintiff does not dispute the existence or his execution of these Arbitration Agreements. (Opp., 8:4-8.) Nor does Plaintiff dispute that his employment claims fall within the scope of these Arbitration Agreements.

Based on the foregoing, Defendants have carried their burden of demonstrating the existence of a valid, binding arbitration agreements and that Plaintiff’s claims fall within the scope of these Agreements. The Court next considers the enforceability of these Agreements.

Plaintiff argues the contract is unenforceable because they are both procedurally and substantively unconscionable.

If a court finds as a matter of law that a contract or any clause of a contract is unconscionable, the court may refuse to enforce the contract or clause, or it may limit the application of any unconscionable clause so as to avoid any unconscionable result. (Civ. Code § 1670.5, subd. (a).) “An agreement to arbitrate, like any other contract, is subject to revocation if the agreement is unconscionable.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 83 [citing Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98].)

“The general principles of unconscionability are well established. A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party. [Citation.] Under this standard, the unconscionability doctrine ‘ “has both a procedural and a substantive element.” ’ [Citation.] ‘The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. [Citations.] Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided.’ [Citation.] [¶] Both procedural and substantive unconscionability must be shown for the defense to be established, but ‘they need not be present in the same degree.’ [Citation.] Instead, they are evaluated on ‘ “sliding scale.” ’ [Citation.] ‘[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to’ conclude that the term is unenforceable. [Citation.] Conversely, the more deceptive or coercive the bargaining tactics employed, the less substantive unfairness is required. [Citations.] A contract’s substantive fairness ‘must be considered in light of any procedural unconscionability’ in its making. [Citation.] ‘The ultimate issue in every case is whether the terms of the contract are sufficiently unfair, in view of all relevant circumstances, that a court should withhold enforcement.’ ” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125–126.) “The burden of proving unconscionability rests upon the party asserting it.” (OTO, supra, 8 Cal.5th at p. 126.)

Plaintiff argues the Arbitration Agreements are procedurally unconscionable because they were made conditions of employment and Plaintiff was not offered extensive time to review the agreements or negotiate its terms. (Parrish Decl., ¶¶ 4-9.)[1]

As Defendants concede, the Arbitration Agreements contains some degree of procedural unconscionability as a contract of adhesion given its “take or leave it” condition of employment. Nonetheless, Defendants argue that courts regularly uphold arbitration agreements where they are presented to employees on a “take it or leave it basis.” (See e.g., Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071; Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1123.)

Defendants’ argument is well-taken. Admittedly, the Arbitration Agreements here contains some level of procedural unconscionability arising from the circumstances of the contract negotiation (or lack thereof) and unequal bargaining power. It is undisputed that the Arbitration Agreements were conditions of employment and there was no real opportunity for Plaintiff to negotiate its terms.

However, the level of procedural unconscionability is low. “When arbitration is a condition of employment, there is inherently economic pressure on the employee to accept arbitration. This alone is a fairly low level of procedural unconscionability.” (Cisneros Alvarez v. Altamed Health Services Corporation (2021) 60 Cal.App.5th 572, 591.) Absent other circumstances demonstrating oppression or sharp tactics in forcing the terms of the Agreement, this alone does not render an arbitration agreement unenforceable. (See Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245 [“[t]he adhesive nature of the employment contract requires us to be ‘particularly attuned’ to her claim of unconscionability [citation], but we do not subject the contract to the same degree of scrutiny as ‘[c]ontracts of adhesion that involve surprise or other sharp practices’ ”].)

In spite of this minimal procedural unconscionability, California law requires that courts enforce the arbitration agreements unless they also find the agreement is substantively unconscionable (Baltazar, supra, 62 Cal.4th at p. 1243)

Here, Plaintiff also argues the Arbitration Agreements both contain several substantively unconscionable provisions.

First, Plaintiff argue the PJ Cleveland Agreement is overbroad in the scope of its claims that are subject to arbitration. In particular, Plaintiff points to the language in the Agreement wherein Plaintiff is bound to arbitrate “all claims, disputes, and/or controversies (collectively “claims”), whether or not arising out of Employee’s employment or the termination of employment.” Plaintiff argues this provision is one-side and oppressive because it forces Plaintiff to arbitrate claims that doe not arise out of the employment relationship, “leaving [Plaintiff] without access to a jury trial if the company committed fraud against him as a customer, or intentionally injured him as a customer.” (Opp. 12: 24-25.) In support of its argument here, Plaintiff cites Revitch v. DIRECTV, LLC (9th Cir. 2020) 977 F.3d 713.

As the Reply notes, this case is not on point. In Revitch v. DIRECTV, LLC, the question before the court was whether DIRECTV as an affiliate could enforce an arbitration provision in a contract between the plaintiff and non-party, ATT Mobility. The Court held DIRECTV could not enforce the provision because, even assuming that DIRECTV was a third-party beneficiary of an arbitration provision in a wireless services agreement that bound affiliates, DIRECTV became an affiliate only after the agreement was formed and it “had nothing to do with providing [the] wireless services” contemplated by the agreement. The court did not analyze the scope of the arbitrable claims within the arbitration provision to determine substantive unconscionability; rather, the court’s ruling was based on whether there was a mutual intent to form an arbitration agreement of the types of disputes raised in the plaintiff’s case against DIRECTV. (Id. at 721.)

Based on the forgoing, Plaintiff has presented no legal authority for the contention that a broad scope of claims covered by an arbitration provision evinces substantive unconscionability. Further, Plaintiff’s hypotheticals are of no consequence because the claims here arise clearly out of the intended scope of the agreement: employment related disputes. (See Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.App.4th 708, 720 [finding it “unnecessary to dwell on plaintiff's claims of vagueness or overbreadth [of the scope of the arbitration agreement], inasmuch as they present only phantasms in the present context. Plaintiff's claims here all arise unquestionably out of his employment or application for employment with the employer.”].)

Additionally, Plaintiff contends that the agreement is further substantively unconscionable as it actively denies signees the right to an appeal. In making this argument, Plaintiff points to Paragraph 7 of the Agreement, which states that “The arbitration shall be final and binding upon the parties.”

The argument is unpersuasive. This type of language is common in arbitration agreements and in fact “it is the general rule that parties to a private arbitration impliedly agree that the arbitrator's decision will be both binding and final.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.)

Third, Plaintiff notes that PJ Cleveland Agreement is further substantively unconscionable in that it forces Plaintiff to waive his right to bring representative PAGA actions.

It is now well-established law that pre-dispute waiver of an individual’s right to bring PAGA claims is unenforceable under California law. (Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 649-650.) However, the question of the enforceability of such a provision has no bearing on an agreement’s substantive unconscionability. That is, “the unenforceability of the waiver of a PAGA representative action does not make [it] substantively unconscionable.” (Poublon v. C.H. Robinson Co. (9th Cir. 2017) 846 F.3d 1251, 1264; see Securitas Security Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1123 [the determinations of “whether an agreement has been validly formed, and whether its terms are adhesive or unconscionable — are different from the determination of whether [the employee] entered into a knowing and intelligent waiver of her right to bring a PAGA claim ... or whether Iskanian[ v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th 348] compels a conclusion that such a waiver is unenforceable as against public policy”].) Therefore, while the Court finds the PAGA waiver unenforceable, this determination does not factor into the Court’s analysis of substantive unconscionability..

With respect to PJ Escondido Agreement, Plaintiff asserts similar substantive unconscionability claims. Plaintiff argues the scope of the arbitration provision is overbroad because it purports to include claims by and against “joint employers,” and further notes that the agreement contains a PAGA waiver. For the reason stated above, these arguments are not well-taken.

Additionally, Plaintiff argues that the PJ Escondido Agreement impermissibly shifts the fees and costs of arbitration onto the employee and contains different arbitration initiation procedure for employers, than for employees.

With respect to arbitration costs argument, “when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.” (Armendariz, supra, 24 Cal.4th at pp. 110–111.)

Here, the PJ Escondido Agreement at Paragraph 8 states: “The Company will pay the arbitrator’s fees and other costs relating to arbitration. . . . It is agreed that the Company shall not be responsible for paying the arbitrators’ fees and costs for the arbitration hearing sooner than 60 days before the commencement of the arbitration hearing.” (Rogan Decl., ¶ 6, Ex. 3.)

Defendants argue that this portion of the PJ Escondido Agreement is narrowly related to “fees and costs for the arbitration hearing” and simply ensures that Defendants are not required to pay such costs until the arbitration hearing appears inevitable. No portion of the PJ Escondido Agreement expressly requires Plaintiff to advance fees and costs associated with the arbitration proceedings and the Court declines to read such language into the Agreement.

Finally, Plaintiff notes that, under Paragraph 6 of the Agreement, an employee is required to provide written notice of his or her “wish to bring a claim to arbitration” to “the Company’s Director of Human Resources . . ..” Plaintiff notes that no such notice is required if Defendant PJ Escondido wishes to initiate arbitration. Plaintiff claims that this results in the employee, like Plaintiff, being required to take additional steps at additional costs in order to pursue their rights.

The Provision is admittedly one-sided. However, “[i]f an employer does have reasonable justification for a one-sided arrangement, the lack of mutuality would not be unconscionable. But without such justification, ‘[courts] must assume that it is.’ ” (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 487. Here, Defendants argue that the provision was intended to provide a means for a Plaintiff to initiate an arbitration. While this reasoning is not particularly persuasive, there does not appear to be any real “cost” to the employee. As the California Supreme Court explained in Sanchez: “Not all one-sided contract provisions are unconscionable; hence the various intensifiers in our formulations: ‘overly harsh,’ ‘unduly oppressive,’ ‘unreasonably favorable.’ ” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910.) And as a practical matter, how else can an employee who wishes to bring a claim to arbitration do so without notifying the employer? The notice requirement provision is not “oppressive” to an employee or “overly one-sided” to the benefit of the employer such that the lack of mutuality is inconsequential.

Thus, although the Arbitration Agreements contain some minimal procedural unconscionability, there is no substantive unconscionability. Based on the foregoing, the Court finds the Arbitration Agreements are not unenforceable.

Lastly, Defendants argue that non-signatories, Pacific PJ and Malekzadeh, may enforce the Arbitration Agreements as agents, third-party beneficiaries, or under the doctrine of equitable estoppel.

The PJ Cleveland Agreement was entered into by “PJ Cleveland, LLC and all or its related entities and subsidiaries” and covers claims “Employee may have against Company or against its employees or agents in their capacity as employees or agents.” (Neghabat Decl., ¶ 6, Ex. 2.) The PJ Escondido Agreement similarly covers claims brought against “the Company’s parent, subsidiaries, affiliates, customers, or client entities as well as against owners, directors, officers, managers, employees, [and] agents.” (Rogan Decl., ¶ 6, Ex. 3.) The PJ Escondido Agreement also states: “I also agree to arbitrate claims pursuant to the terms of this Agreements against any person or entity I allege to be a joint employer with the Company. . . .” (Rogan Decl., ¶ 6, Ex. 3.)

Defendants claim the Arbitration Agreements incorporate Plaintiff’s claims against Pacific PJ and Malekzadeh, as agents of, or joint employers with, the other Defendants.

In opposition, Plaintiff contends that Defendants Pacific PJ and Malekzadeh have done nothing to establish or prove that they were subject to or parties of the Arbitration Agreements.

Generally, one must be a party to an arbitration agreement to be bound by it or invoke it. (Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 785.) However, nonsignatories sued as agents of a signatory may enforce an arbitration agreement. (Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1284.) For example, in Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418, the plaintiff sued the Rams and various individuals “in their capacities as “ ‘owners, operators, managing agents, and in control [sic] of’ ” the Rams for breach of contract. (Id. at pp. 409–410, 418.) The Court of Appeal reversed the trial court’s denial of defendants’ petition to compel arbitration, holding that if “the individual defendants, though not signatories, were acting as agents for the Rams, then they are entitled to the benefit of the arbitration provisions.” (Id. at p. 418.)

Here, Plaintiff relies on the holding in Hernandez v. Meridian Management Services, LLC (2023) 87 Cal.App.5th 1214 to argue Defendants failed to carry their burden to demonstrate that Defendants Pacific PJ and Malekzadeh have such an agency relationship with the other Defendants. Hernandez does not support Plaintiff’s position.

In Hernandez, the plaintiff signed an arbitration contract with an employer called Intelex. While working for Intelex from 2015 to 2020, Hernandez also worked for other companies, referred to as “Other Firms.” After the plaintiff’s termination in 2020, the plaintiff brought employment claims against the Other Firms, “but her complaint avoided mention of Intelex.” (Hernandez, supra, 87 Cal.App.5th 1214, 1217.) Nonetheless, the plaintiff alleged that “the Other Firms shared the same legal and physical address; the same human resources person; the same controller; the same payroll department; the same risk management and legal services; and the same centralized information technology.” (Id.) During litigation, the Other Firms moved to compel arbitration based on the plaintiff’s arbitration agreement with Intelex. (Id. at 1218.)[2] The plaintiff opposed this motion, noting she never contracted for arbitration with any Other Firm and Intelex was not a party to the litigation. (Id.)

Importantly, the Hernandez court held that the Other Firms did not meet their burden of showing equitable estoppel or agency. Defendants presented no evidence that the Other Firms were agents of Intelex and no allegations in the Plaintiff’s complaint alleging otherwise. Further, with respect to equitable estoppel, the court explained: “The linchpin of the estoppel doctrine is fairness. The Other Firms complain that it is unfair for [the plaintiff] to tailor her complaint in such a way as to avoid arbitration. But it isn't, really. There is nothing wrong with either party wanting to appear in court, or in arbitration. And it isn't as though [the plaintiff] is trying to have it both ways—to appear in court, she has completely given up her claims against Intelex. Parties make tactical ‘bargains’ like this all the time.” (Id., at p. 1219 [emphasis added].)

Unlike in Hernandez, Plaintiff here is trying to “have it both ways.” The Complaint here alleges identical claims against the signatories and non-signatory parties to the Arbitration Agreements. Further, Plaintiff alleges that “each of the defendants was the agent, principal, employee, employer, representative, joint venture or co-conspirator of each of the other defendants, either actually or ostensibly, and in doing the things alleged herein acted within the course and scope of such agency, employment, joint venture, and conspiracy.” (Compl., ¶ 31.)

To be clear, these boilerplate allegations in the Complaint do not constitute judicial admissions that are binding on Plaintiff. In Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, the Court of Appeal rejected the defendants' contention that they were entitled to enforce the arbitration agreement based on the agency allegations in the complaint. (Barsegian, supra, 215 Cal.App.4th at p. 451.) The court observed: “Complaints in actions against multiple defendants commonly include conclusory allegations that all of the defendants were each other's agents or employees and were acting within the scope of their agency or employment.” (Ibid.) The Barsegian court reasoned not every factual allegation in a complaint constituted a judicial admission. (Id. at pp. 451–452.) That is, “a judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party. The factual allegation is removed from the issues in the litigation because the parties agree as to its truth.... [¶] A judicial admission is therefore conclusive both as to the admitting party and as to that party's opponent. [Citation.]” (Id. at p. 452.) The Barsegian court distinguished Thomas v. Westlake (2012) 204 Cal.App.4th 605 because there it was not clear whether all sides conceded as to the mutual agency of the defendants. (Id. at p. 453.)^{^[3]}

Like the defendants in Barsegian, Defendants here do not concede they are agents of each other and have submitted no evidence they have a preexisting agency relationship with each other. Defendants merely rely on the boilerplate agency allegations in the Complaint. Defendants have failed to meet their burden of establishing they are parties under the arbitration agreement as agents of signatory Defendants. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15; City of Hope v. Cave (2002) 102 Cal.App.4th 1356, 1369–1370.)

Rather, the Court finds that the facts here support enforcement of the Arbitration Agreements by nonsignatory parties pursuant to the doctrine of equitable estoppel. The facts in Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 are instructive.

In Garcia v, the plaintiff had an arbitration agreement with his employer, Real Time Staffing Services. He sued Real Time and a worksite employer, Pexco, for labor law violations. (Id. at pp. 784–785.) The appellate court affirmed the order compelling arbitration because even though Pexco was a nonsignatory, it could compel arbitration because “all of [plaintiff’s] claims are intimately founded in and intertwined with his employment relationship with Real Time,” with whom he agreed to arbitrate “ ‘any dispute.’ ” (Id. at pp. 787, 784.) Thus, plaintiff could not “link Pexco to Real Time to hold it liable for alleged wage and hour claims, while at the same time arguing the arbitration provision only applies to Real Time and not Pexco.” (Id. at p. 788.) As joint employers, Pexco and Real Time were agents of each other in their dealings with Garcia. (Ibid.)

Plaintiff’s claims against nonsignatory parties are “rooted in his employment relationship” with the signatory parties. (Garcia v. Pexco, supra, 11 Cal.App.5th at p. 787.) Therefore, Plaintiff’s claims against both Pacific PJ and Malekzadeh may be compelled to arbitration because such claims are subject to the Arbitration Agreements.

Accordingly, the Court grants Defendants’ motion to compel arbitration is granted as to Plaintiff’s individual Labor Code claims. The remaining representative PAGA claims are stayed pending the outcome of arbitration.

[1] Plaintiff argues that “Regarding the PJ Cleveland Purported Agreement, there is also additional evidence of oppression leading to significantly greater procedural unconscionability than would a run-of-the mill adhesion contract. Specifically, at the time that Mr. Parrish was provided with the arbitration agreement and other employment documents, Defendants took several steps to ensure that Mr. Parrish would feel pressure to sign and rush through the documents without properly reading them before signing.” (Opp. 10:6-11.) However, review of Plaintiff’s evidence simply does not support the presence of any such “steps.”

[2] Prior to the motion to compel arbitration, the Other Firms sought to join Intelex as a necessary party, but the trial court denied this motion. (Ibid.)

[3] In Thomas, the complaint alleged the defendants acted as an agent for each of the other defendant. (Thomas v. Westlake, supra, 204 Cal.App.4th at p. 614.) The Court of Appeal concluded plaintiff's allegations of an agency relationship among defendants constituted binding judicial admissions that allowed the nonsignatory parties to invoke the benefits of the arbitration agreement. (Id. at pp. 614–615.) The appellate court held the nonsignatory parties could enforce arbitration clauses contained in plaintiff's account agreements as alleged agents of the signatory defendant. (Id. at p. 618.)

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