Judge Christian R. Gullon, Case Number: 22PSCV02847, Date: 2023-09-14 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV02847, Date: 2023-09-14 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

DEFENDANT’S MOTION TO COMPEL ARBITRATION OF INDIVIDUAL PAGA CLAIM AND TO STRIKE OR STAY NONINDIVIDUAL PAGA CLAIM is GRANTED in part; court grants petition to compel the arbitration of Plaintiff’s individual PAGA claims and the representative/non-individual PAGA claims are stayed.[1]

This is a Private Attorneys General Act of 2004 (PAGA) action brought forth by Plaintiff (nonexempt nursing assistant of a nursing home) and other employees for various Labor Code violations.

On December 12, 2022, Plaintiff TIERRA FRANKLIN, individually, and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act filed suit against Defendant POMONA HEALTHCARE & WELLNESS CENTER, LLC.

On August 30, 2023, Plaintiff filed an opposition to the motion, including evidentiary objections.

On September 7, 2023, Defendant filed its Reply, along with its response to Plaintiff’s evidentiary objections.

The FAA applies to contracts that involve interstate commerce. (9 U.S.C. §§ 1, 2.)[2]

Section 2 of the FAA provides in relevant part: “A written provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . 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.) Under the FAA, there is a strong policy favoring arbitration. (Moses H. Cone Memorial Hospital v. Mercury Construction (1983) 460 U.S. 1, 24; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971–972.) “The overarching purpose of the FAA is to ensure the enforcement of arbitration agreements according to their terms . . . .” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 344 (Concepcion).)

On a motion to compel arbitration, a trial court is posed with determining two questions: (1) whether an enforceable arbitration agreement exists between the parties and (2) whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration any defense, such as unconscionability and waiver. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); see St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.)

In an answer in the affirmative as to both “leaves no room for the exercise of discretion by a [] court, but instead mandates that [] court[] shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” (Dean Witter Reynolds, Inc. v. Byrd (1985) 470 U.S. 213, 213.)

Before engaging in the merits of the arguments, the court provides the pertinent provisions of the ‘Alternative Dispute Resolution Policy and Agreement Acknowledgment’ (“Arbitration Agreement” or occasionally referred to as “ADR Policy”).

The ADR Policy will be mandatory for ALL DISPUTES ARISING BETWEEN EMPLOYEES, ON THE ONE HAND, AND [DEFENDANT] AND/OR THEIR RESPECTIVE EMPLOYEES AND OFFICERS (HEREINAFTER COLLECTIVELY THE “COMPANY”), ON THE OTHER HAND. Any disputes which arise and which are covered by the ADR Policy must be submitted to final and binding resolution through the procedures of the Company’s ADR Policy.

For parties covered by this Alternative Dispute Resolution Policy, alternative dispute resolution, including final and binding arbitration, is the exclusive means for resolving covered disputes (as defined below); no other action may be brought in court or in any other forum. This agreement is a waiver of all rights to a civil court action for a covered dispute; only an arbitrator, not a Judge or Jury, will decide the dispute.

Covered disputes include any dispute arising out of or related to [Plaintiff’s] employment, the terms and conditions of [Plaintiff’s] employment and/or the termination of [Plaintiff’s] employment, including, but not limited to, the following:

• Claims alleging failure to compensate for all hours worked, failure to pay overtime, failure to pay minimum wage, failure to reimburse expenses, failure to pay wages upon termination, failure to provide accurate, itemized wage statements, failure to provide meal and/or rest breaks, entitlement to waiting time penalties and/or other claims involving employee wages, including, but not limited to, claims brought under the Fair Labor Standards Act and any other statutory scheme related to wages or working hours

[Plaintiff] understand[s] and agree[s] this ADR Program prohibits [Plaintiff] from joining or participating in a class action or representative action, acting as a representative of others, excluding private attorney general claims, or otherwise consolidating a covered claim with the claim of others.

In the event that any provision of this ADR Policy is determined by a court of competent Jurisdiction to be illegal, invalid or unenforceable to any extent, such term or provision shall be enforced to the extent permissible under the law and all remaining terms and provisions of this ADR Policy shall continue in full force and effect.

“‘Although the FAA preempts any state law that stands as an obstacle to its objective of enforcing arbitration agreements according to their terms, . . . we apply general California contract law to determine whether the parties formed a valid agreement to arbitrate their dispute.’” (Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 219.) General contract law principles include taking the contract as a whole, “so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Ibid, internal citation omitted.) With that in mind, whether under state or federal law, “any ambiguities or doubts about the scope of an arbitration agreement must be resolved in favor of arbitration.” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323, emphasis added.)

Defendant argues that the arbitration provision requires the arbitration of disputes include any dispute arising out of or related to Plaintiff’s employment, the terms and conditions of Plaintiff’s employment and/or the termination of Plaintiff’s employment, including, but not limited to, conditions of employment (e.g., working conditions, wages, working hours), which are the allegations of the complaint. And as the agreement was signed by Plaintiff, then the agreement, effectively, unambiguously reflects the parties’ intent both to arbitrate disputes arising from Plaintiff’s employment conditions and to be bound by the arbitration decisions that resolve such disputes.

In Opposition, Plaintiff heavily takes issue with the lack of an enforceable arbitration agreement.[3]

Plaintiff’s predominant argument in opposition is that PAGA claims are exempted from Defendant’s class action waiver clause. Based thereon, Plaintiff’s single-cause-of-action complaint for civil penalties on behalf of aggrieved employees under PAGA should not be dismissed.

But, as noted by Defendant, the Viking River Court held the FAA preempts Iskanian’s prohibition on contractual splitting of PAGA claims such that Plaintiff’s individual PAGA claims can be split from the non-individual PAGA claims. (Reply p. 3.)[4] Specifically, the Court held the following in Viking River:

We hold that the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate. This holding compels reversal in this case. The agreement between Viking and Moriana purported to waive “representative” PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any “portion” of the waiver that remains valid must still be “enforced in arbitration.” Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim. The lower courts refused to do so based on the rule that PAGA actions cannot be divided into individual and non-individual claims. Under our holding, that rule is preempted, so Viking is entitled to compel arbitration of Moriana's individual claim.

With an understanding of Viking River and by reading the plain language of the Arbitration Agreement, the parties did not exclude arbitration of Plaintiff’s individual PAGA claims. To read otherwise (i.e., that Plaintiff’s individual PAGA claims are excluded from arbitration) would require the court to insert language into the parties’ agreement, which is impermissible as it would not give effect to the mutual intent of the parties at the time of contract formation. (See Opp. p. 3, citing Vons Companies, Inc. v. United States Fire Insurance Co. (2000) 78 Cal.App.4th 52, 58-59 [“A contract extends only to those things which it appears the parties intended to contract. Our function is to determine what, in terms and substance, is contained in the contract, not to insert what has been omitted. We do not have the power to create for the parties a contract that they did not make and cannot insert language that one party now wishes were there.”].)

To the extent that Plaintiff avers the Arbitration Agreement is ambiguous such that any ambiguiety to be resolved in favor of the non-drafting party (Opp. p. 3:13-14, citing Cal. Civ. Code section 1654) Plaintiff’s reliance on Civil Code section 1654 is misplaced. The statute provides the following: “In cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” As observed by the appellate court in Kim v. TWA Construction, Inc. (2022) 78 Cal.App.5th 808, 836, “[t]his interpretive rule applies only if ambiguity remains after recourse to other rules of construction. Section 1654 ‘does not stand for the proposition that, in every case where one of the parties to a contract points out a possible ambiguity, the interpretation favored by the nondrafting party will prevail.’” Here, applying the other rules of contract interpretation, the Arbitration Agreement is not ambiguous as to its requirement that Plaintiff’s individual claims are subject to arbitration to warrant an inquiry as to the objectively reasonable expectation of the promisee/Plaintiff. (Id. at p. 832 [“If, after this second inquiry, the ambiguity remains, ‘the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.’”].)

Therefore, as Defendant’s request to arbitrate Plaintiff’s individual PAGA claims does not contradict the express language of the Arbitration Agreement Defendant seeks to enforce, the court compels arbitration of Plaintiff’s individual PAGA claims.

Next, Plaintiff argues that Defendant has not met its “factual and evidentiary burden” to establish the existence of a valid agreement, specifically taking issue with the lack of foundation and personal knowledge of Teodoro Ko’s declaration. (Opp. pp. 5-6; see also Plaintiff’s Evidentiary Objections.)

Here, Ko—as the Director of Staff Development for Defendant who was oversaw and managed the standard onboarding process for Defendant and who is personally aware of the onboarding process and who personally reviewed Plaintiff’s personnel file—has adequately laid the foundation for the statements he set forth in his declaration. To the extent that Ko was to be physically present at the time of Plaintiff signing the Arbitration Agreement (see Plaintiff’s Evidenitary Objections, No. 1), that requirement is both unnecessary and unsupported by law. Ko is attesting to facts based upon his familiarity with the contents of the file and familiarity with records presented to Ko in the ordinary course of the performance of Ko’s job responsibilities, which meets evidentiary requirements. (Ko Decl., p. 3.) To the extent that Plaintiff in its evidentiary objections cites to cases, none of the cases are instructive as they pertain to requirements of affidavits in a summary judgment motion.[5]

Therefore, all objections to Ko’s declaration are OVERRULED, meaning Defendant has established that an authentic agreement to arbitrate exists.

Though Defendant has established that an Arbitration Agreement exists, that as part of its onboarding process Defendant provided Plaintiff a reasonable opportunity to review the Arbitration Agreement and ask questions (Ko Decl., ¶¶ 6-7), Plaintiff avers that she “lacked any understanding” of the arbitration agreement because she “did not feel like [she] was able to ask any questions during [the] onboarding process.” (Franklin Decl., ¶9, emphasis added.) (Opp. p. 7, see Franklin Decl., ¶¶3-10.)

Here, the court is unpersuaded by Plaintiff’s attempt to invalidate the agreement.

For one, Plaintiff does not state she was given no opportunity to review the material and ask questions; rather, Plaintiff merely did not feel like she could ask questions. Why couldn’t she ask questions? Plaintiff does not explain.

Second, to the extent that Plaintiff cites to Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, Gamboa is inapposite because there the plaintiff filed a declaration that she did “not remember the[] documents at all.” (Id. at p. 163, emphasis added.) Here, however, Plaintiff does not state she does not remember the documents. If anything, Plaintiff declares that she was provided with “numerous documents to review and sign” (Franklin Decl., ¶5), which contradicts any argument that Plaintiff was not provided requisite material. To the extent that Plaintiff is arguing she did not sign the Arbitration Agreement, that would contradict Plaintiff’s argument that she had no choice but to sign the Arbitration Agreement as a condition of employment. (Opp. p. 9, see page 9 below.) Accordingly, as Plaintiff has not declared under penalty of perjury that she never saw nor remembers signing the agreement, Plaintiff has failed to meet the burden of producing evidence to challenge the authenticity of the agreement. Effectively, the burden need not shift again to Defendant. (Opp. p. 7:9-10; see Id. at p. 165 [On motion to compel arbitration, the burden of production may shift from the moving party to the non-moving party in a three-step process].)

Third, as noted by Defendant in Reply, one who signs an instrument is deemed to assent to its terms. (Reply p. 4, citing Marin Storage & Trucking, Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049 [“Every contract requires mutual assent or consent [citation omitted] and ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing.”].) Under this general rule, Plaintiff would be deemed to have assented to the Arbitration Agreement when she signed the agreement. Furthermore, parties dealing at arm's length do not have a duty to explain to each other the terms of a written contract, particularly where, as here, the language of the contract expressly and plainly provides for the arbitration of disputes arising out of the employment relationship. (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674.) “Reasonable diligence requires the reading of a contract before signing it. A party cannot use his own lack of diligence to avoid an arbitration agreement.” (Ibid.) Thus, under yet another general rule of contract law, Plaintiff is bound by the provision of the Arbitration Agreement regardless of whether she read it or was aware of the arbitration requirement when she signed the document. (Ibid.)

Therefore, Defendant, through a preponderance of the evidence, has established an enforceable obligation to arbitrate Plaintiff’s individual PAGA claims.

Next, Plaintiff avers that Defendant is not a party to the action because “[t]here is no indication that Defendant has any association” Park Avenue Healthcare & Wellness Center. (Opp. p. 7.)

As explained by Defendant in Reply, Park Avenue Healthcare Center is the DBA for Defendant. (Reply p. 4, see also Gonzalez Decl.)

Therefore, Defendant is a party to the Arbitration Agreement such that the Arbitration Agreement does not fail for want of mutual assent.

The California Supreme Court has stated the following regarding the general principles of unconscionability.

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. Under this standard, the unconscionability doctrine has both a procedural and a substantive element. The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided. Both procedural and substantive unconscionability must be shown for the defense to be established, but they need not be present in the same degree. Instead, they are evaluated on ‘a sliding scale.’ [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to conclude that the term is unenforceable. Conversely, the more deceptive or coercive the bargaining tactics employed, the less substantive unfairness is required … 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, internal citations omitted, emphasis added.)[6]

Plaintiff argues that her inability to thoroughly review the documents and requirement that she sign the Arbitration Agreement as part of a “take-it-or -leave it employment condition” (Opp. p. 8) evidences procedural unconscionability (i.e., unequal bargaining power and lack of meaningful choice).

But, as noted by Defendant, Plaintiff could have sought more time to review the documents. In fact, Plaintiff did not immediately sign her Employee Handbook and At-Will Acknowledgment Form. (Reply p. 5.) Plaintiff signed those materials on the second day of her onboarding process on April 23, 2021, suggesting should Plaintiff have sought more time to review the Arbitration Agreement, the request very well would have been granted.

As for Plaintiff’s argument that she had no choice to sign the agreement, it is true that arbitration contracts imposed as a condition of employment are typically adhesive, hinting at procedural unconscionability (OTO, LLC, supra, 8 Cal.5th at p. 126). But the inquiry does not end there. “The pertinent question, then, is whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.” (Ibid, internal citations omitted, italics original). To determine the presence of such circumstances, there are five considerations to examine: “(1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney.” (Id. at pp. 126-128.)

Here, however, neither Plaintiff’s declaration nor Plaintiff’s discussion section on procedural unconscionability provide illuminating facts about the circumstances surrounding the formation and negotiations of the Arbitration Agreement. For example, neither document sets forth any discussion Defendant may have had with Plaintiff before Plaintiff was presented with and signed the Arbitration Agreement. “Absent any evidence, we cannot just assume there was procedural unconscionability.” (Performance Team Freight Systems, Inc. v. Aleman (2015) 241 Cal.App.4th 1233, 1248.) Thus, absent evidence and a thorough analysis, the argument is waived. (Ables v. Ghazale Brothers, Inc. (2022) 74 Cal.App.5th 823, 828 [“The arguments in Ables's brief are undeveloped, lack sufficient citations to authority and to the record, and fail to allege any trial court error. Consequently, we consider them forfeited. [Citations omitted]. It was Ables's burden, not ours, to make arguments from legal authority….”].)[7]

Having established that Plaintiff has not demonstrated procedural unconscionability, then the Arbitration Agreement cannot be deemed unconscionable because a contract to arbitrate is unenforceable under the doctrine of unconscionability when there is both a procedural and substantive element of unconscionability. (See Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Caal.4th 83, 114 [“The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability”], emphasis added.)

Even assuming arguendo that Plaintiff made an adequate showing of procedural unconscionability, Plaintiff’s arguments to demonstrate that the Arbitration Agreement is unfair is unavailing.

First, Plaintiff states that the Arbitration Agreement is unfair because the employment related disputes covered by the Arbitration Agreement are ones that would be brought by employees against employers (not vice versa). However, absent an elaboration by Plaintiff, the court is not entirely certain as to the relevancy of this argument. In any event, as noted by Defendant, the Arbitration Agreement binds both Plaintiff and Defendant, not just Plaintiff.

Second, as to Plaintiff’s argument that the Arbitration Agreement is unfair because she did not have the opportunity to modify the terms, Plaintiff has not provided authority. Plaintiff cites to Asmus v. Pac. Bell (2000) 23 Cal.4th 1, but that case is distinguishable on two fronts: it involved a summary judgment motion (not motion to compel arbitration) and involved an employment term allowing for unilateral termination of a policy (not specifically an arbitration provision). As for the citation to Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, that case is distinguishable. While the Ingle court determined that the employer’s ability to modify or terminate the dispute resolution agreement unilaterally rendered the contract substantively unconscionable, it did so based upon (i) inadequate notice and (ii) “[t]he adhesive nature of the contract and the provisions with respect to coverage of claims, the statute of limitations, class claims, the filing fee, cost-splitting, remedies.” (Id. at pp. 1179-1180.) Here, however, as with procedural unconscionability, Plaintiff has not set forth facts nor evidence (i.e., an analysis) to illustrate substantive unconscionability.

All in all, as to the issue of unconscionability, the Arbitration Agreement is not unconscionable, rendering it enforceable.

Relying upon Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73 and Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, Plaintiff avers that should the court order arbitration of Plaintiff’s individual claims, the non-individual PAGA claim should not dismissed.[8]

The court agrees with Plaintiff in so far as Plaintiff retains standing representative PAGA standing but disagrees that the matter should be stayed pending arbitration of Plaintiff’s individual claims.

As statutory standing is an issue of state law, state courts were not bound by the U.S. Supreme Court’s interpretation in Viking River that a PAGA plaintiff lacks statutory standing to pursue PAGA claims when her individual claim is pared away to arbitration, which was a point that Justice Sotomayor flagged in a concurrence.[9] And working with what may have been a mistaken view of California law, the California Supreme Court in Adolph clarified the issue: “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.” (Adolph, supra, 14 Cal.5th at p. 1114).

Thus, applying Adolph, Plaintiff maintains standing to pursue non-individual PAGA claims in court. As for whether to stay the proceeding pending arbitration, Adolph provides the solution:

When a case includes arbitrable and nonarbitrable issues, the issues may be adjudicated in different forums while remaining part of the same action. Code of Civil Procedure section 1281.4 states that upon order[ing] arbitration of a controversy which is an issue involved in an action, the court should stay the action …The statute makes clear that the cause remains one action, parts of which may be stayed pending completion of the arbitration.

Therefore, as the California Supreme Court has endorsed the stay of the non-individual claims pending the outcome of arbitration, the court does so here.

Based on the foregoing, the court GRANTS the motion such that Plaintiff is compelled to arbitrate her individual PAGA claim and the non-individual PAGA claim is stayed (not stricken).

[1] The court requests Defendant submit a new proposed order that eliminates any references to the striking of the non-individual PAGA allegations.

[2] Here, Defendant asserts that by transacting business online and with out-of-state entities and purchasing out-of-state goods, that it clears the low bar for what’s considered involvement in interstate commerce. (Motion p. 10) Plus, a review of the arbitration agreement provides that the FAA applies. (Ko Decl., Ex. A, p. 9 of 10 of PDF [“The parties acknowledge that this Agreement evidences a transaction involving interstate commerce . . . any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act [citation omitted].”].) Plaintiff does not dispute that the FAA applies. Therefore, the FAA applies.

[3] The court will address the handful of arguments in the order presented by Plaintiff’s headers. To the extent that there is an overlap in some of the arguments, it is not the court’s duty to stich the arguments together to create coherent reasoning.

[4] The Court in Viking River defined “individual PAGA claim” to refer to claims based on Labor Code violations suffered by the plaintiff. (Viking River (2022) 142 S. Ct. 1906, 1916.) Non-individual claims are “representative.”

[5] See e.g., Snider v. Snider (1962) 200 Cal.App.2d 741; see also Southern Pacific Co v. Fish (1958) 166 Cal.App.2d 353, 362.

[6] OTO, LLC was cited by Plaintiff in opposition.

[7] Briefly, the circumstances here do not demonstrate significant oppression because unlike OTO, LLC wherein neither the contents nor significant of the employment-related documents were explained (id. at p. 127), here, a review of the Arbitration Agreement provides in layman’s terms the nature of arbitration agreements.

[8] Defendant’s motion did not address Adolph, though it was discussed in Reply.

[9] (Viking River, supra, at p. 1925 (concurrence Sotomayor, J. [“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.”].) For this reason, Defendant’s characterization that Kim is “no longer persuasive” (Motion p. 16) is inaccurate because Viking River did not redefine statutory standing under PAGA. (Though the court acknowledges that Kim is not entirely instructive as it only addressed the standing impact of the settlement of non-PAGA individual damages (not violations) claims.)