Judge: Carolyn M. Caietti, Case: 37-2022-00047743-CU-OE-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2022-00047743-CU-OE-CTL PELLETIER VS ABC LEGAL SERVICES LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/28/2023

Defendant ABC Legal, Inc.'s Motion to Compel Arbitration is DENIED.

The party seeking to compel arbitration bears the burden of proving the existence of an arbitration agreement to arbitrate a controversy and a party to the agreement refuses to arbitrate that controversy.

(C.C.P., § 1281.2; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Once the existence of the arbitration agreement is established, courts may only deny arbitration if the opposing party demonstrates a ground for denial. (C.C.P., § 1281.2) Based on the documents provided, including a copy of the parties' Independent Contractor Services Agreement (ICSA), Defendant proved the existence of an arbitration agreement. (ROA 22 – Declaration of Timothy Dinehart, at Ex. A.) However, this dispute is not covered by the arbitration agreement.

'The scope of arbitration is a matter of agreement between the parties. A party can be compelled to arbitrate only those issues it has agreed to arbitrate.' (Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 419; see also, Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (explaining a party cannot be required to submit to arbitration any dispute which he has not agreed to so submit).) Here, the arbitration provision states '[a]ll claims or controversies....will be resolved by binding arbitration.' (Ex A, at § 18(h).) It then provides examples of arbitrable claims. However, Defendant does not include in its moving papers discussion of section 18(i), titled 'Claims not subject to arbitration.' This section provides, 'this Agreement does not prohibit the filing of the following ... (5) any other charge filed with or communication to a federal, state or local government office, official or agency (for numbers (2) through (5) collectively, a 'government complaint').' As explained by the California Supreme Court, a PAGA claim is legally and conceptually different from an employee's own suit for damages and statutory penalties. An employee suing under PAGA does so as the proxy or agent of the state's labor law enforcement agencies. Every PAGA claim is a dispute between an employer and the state. (Kim v. Reins Int'l California, Inc. (2020) 9 Cal.5th 73, 81.) Plaintiff maintains section 18(h) is a carve out for PAGA claims since Plaintiff must outline her accusations against Defendant to the LWDA as a prerequisite to filing suit. (Lab. Code, § 2699.3(a)(1); Kim, supra, 9 Cal.5th at p. 81 ['An employee seeking PAGA penalties must notify the employer and the Labor and Workforce Development Agency (LWDA) of the specific labor violations alleged....'].) Here, Plaintiff was required to and filed her PAGA letter with the LWDA. (ROA 36 - Declaration of Shaun Markley, at ¶ 2, Ex. 7.) Calendar No.: Event ID:  TENTATIVE RULINGS

2944086  56 CASE NUMBER: CASE TITLE:  PELLETIER VS ABC LEGAL SERVICES LLC [E-FILE]  37-2022-00047743-CU-OE-CTL Defendant does not meaningfully or persuasively reply. At most, Defendant argues, '[t]he plain language of [section 18(i)] establishes that complaints or communications to government agencies are not prohibited from being made outside arbitration. Section 18(i) contains no language suggesting that a civil action is exempt from arbitration merely because pre-filing exhaustion to a government agency is required by statute.' (Reply, at p. 9:9-12.) But this ignores and does not reconcile the title of 'Claims not subject to arbitration' and the language of 'except that this Agreement does not prohibit the filing of...' To the extent the language is uncertain, 'where, as here, the written agreement has been prepared entirely by the employer, it is a 'well established rule of construction' that any ambiguities must be construed against the drafting employer and in favor of the nondrafting employee.' (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 248.) This favors Plaintiff's interpretation that her PAGA claim is a 'Claim[] not subject to arbitration.' Thus, Defendant did not meet its burden of proving an agreement to arbitrate this controversy and the burden did not shift to Plaintiff to demonstrate a ground for denial.

The Court also declines to issue a stay.

For these reasons, the motion to compel arbitration is DENIED.

The Case Management Conference remains on calendar.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

Defendant is ordered to serve written notice of the Court's final order on all parties by August 22, 2023.

Plaintiff is reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID:  TENTATIVE RULINGS

2944086  56