Judge: David S. Cunningham, Case: 20STCV19057, Date: 2022-10-03 Tentative Ruling
Case Number: 20STCV19057 Hearing Date: October 3, 2022 Dept: 11
20STCV19057 (Ruiz)
Tentative Ruling Re: Motion to Join Motion Compel Arbitration
Date: 10/3/22
Time: 11:00
am
Moving Party: EmployBridge,
LLC (“Defendant” or “EmployBridge”)
Opposing Party: Elizabeth
Ruiz (“Plaintiff”)
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Defendant’s motion to join is granted.
BACKGROUND
Edelbrock Foundry, LLC (“Edelbrock”) is a California company doing
business in Los Angeles County. (See
First Amended Complaint (“FAC”), ¶ 16.)
EmployBridge is a California staffing agency. (See id. at ¶ 17.)
EmployBridge assigned Plaintiff to work for Edelbrock. Eventually, Edelbrock hired her. Plaintiff claims EmployBridge and Edelbrock
employed her. (See id. at ¶ 15; see also
Mendoza Decl., ¶¶ 5-6.)
The
case started out as a putative “wage and hour” class action. Plaintiff filed the complaint on 5/18/20,
seeking to represent current and former nonexempt employees of Edelbrock and
EmployBridge.
On
10/2/20, Plaintiff filed the FAC, adding a PAGA cause of action.
On
2/16/21, Judge Ann Jones granted EmployBridge’s motion to compel arbitration,
dismissed the class claims, and stayed the PAGA action pending the
arbitration’s completion.
On
7/7/22, Edelbrock filed a motion to compel arbitration of Plaintiff’s
individual PAGA claim and to dismiss the representative PAGA claim, which the
Court is inclined to grant in part. (See
10/3/22 Tentative Ruling Re: Motion to Compel Arbitration, pp. 1-7.)
Here,
EmployBridge moves to join Edelbrock’s motion.
DISCUSSION
Plaintiff’s opposition brief is
late. It was due 9/19/22, nine court
days before the hearing, but Plaintiff filed it after close of business on
9/20/22.
The Court has considered the late
opposition. It does not change the
outcome. As explained next, the Court
finds that the motion should be granted notwithstanding the opposition
arguments, so there is no harm.
Edelbrock’s motion to compel
arbitration is set for hearing on 10/3/22.
In the tentative ruling on that motion, the Court tentatively rejects
Plaintiff’s waiver argument, finds that an agreement to arbitrate exists,
grants the motion as to the individual PAGA claim, and stays the case as to the
representative PAGA claim. (See ibid.)
Despite
being a nonsignatory, Defendant contends it may enforce the arbitration
agreement because:
* Plaintiff alleges that Defendant was Edelbrock’s agent
during her employment, making Defendant a third-party beneficiary of the
agreement (see Motion, p. 5; see also Reply, pp. 5-8);
* “Plaintiff’s ‘claims are intimately founded in and
intertwined with [her] employment relationship with’[Defendant], and her claims
against [Defendant] are rooted in her employment relationship with Edelbrock” (Motion,
p. 6; see also Reply, pp. 3-5).
Plaintiff
responds:
* the agency allegation is inadequate to show that
Defendant is a third-party beneficiary (see Opposition, pp. 4-5);
* equitable estoppel does not apply (see id. at pp. 5-8).
Agency
“Most courts have held that a nonsignatory who is the agent
of a party to a contract containing an arbitration clause may compel the other
parties to the contract to arbitrate their claims against nonsignatory for
liability arising under the contract . . . but
not other claims.” (Warren, supra, at ¶
5:266.5, emphasis in original.)
In some situations, an agency allegation may be inadequate to
meet the nonsignatory’s burden. (See,
e.g., id. at ¶ 5:264.3; see also, e.g., Barsegian v. Kessler & Kessler
(2013) 215 Cal.App.4th 446, 451-453; Garcia v. Expert Staffing
West (2021) 73 Cal.App.5th 408, 415-416.)
The circumstances here seem different. Plaintiff alleges that Defendant and
Edelbrock jointly employed her.
Defendant highlights several examples in the complaint. (See Reply, p. 6.) In Garcia v. Pexco, LLC (2017) 11
Cal.App.5th 782, 788, the Court of Appeal found similar allegations
sufficient to establish the agency exception.
This appears to be a basis for granting Defendant’s motion.
Equitable Estoppel
“Under the equitable estoppel doctrine, a party to an
arbitration agreement may be required to arbitrate with a nonparty. [Citations.]”
(Warren, supra, at ¶ 5:266.15.)
“A nonsignatory may enforce an arbitration clause on grounds
of equitable estoppel only when the claims against the nonsignatory are ‘dependent
upon, or founded in and inextricably intertwined with,’ the obligations imposed by the agreement containing the
arbitration clause.
[Citations.]” (Ibid., emphasis in
original.)
The equitable estoppel doctrine
applies in two circumstances:
— when the signatory must
depend on the written agreement providing for arbitration in asserting claims
against the nonsignatory; or
— when the signatory
alleges “substantially interdependent and concerted misconduct” by the
nonsignatory and a signatory and the alleged misconduct is “founded in or
intimately connected with the obligations of the underlying agreement.” [Citations.]
(Ibid.; cf. id. at ¶ 5:266.19 [noting
that, “[w]hen the nonsignatory’s claims
are not founded on and so intertwined with the contracting
parties’ agreement containing an arbitration provision, a nonparty cannot
invoke the arbitration provision to compel a party to the contract to arbitrate
with the nonparty”], emphasis in original.)
The Court agrees with Defendant. As Defendant argues, Garcia is
analogous. There, the plaintiff had an
arbitration agreement with a staffing agency.
After the staffing agency assigned the plaintiff to work for a
nonsignatory employer, the plaintiff filed Labor Code claims against both. The trial court compelled arbitration of all
claims against both defendants, and the Court of Appeal affirmed. The Court of Appeal agreed that the plaintiff
was equitably estopped from denying the nonsignatory’s right to arbitrate
because his claims were “intimately founded in and intertwined with his
employment relationship” with the staffing agency. (Garcia, supra, 11 Cal.App.5th
at 787 [emphasizing that the plaintiff’s claims against the nonsignatory were
“rooted in his employment relationship” with the staffing agency].) The facts here are substantively similar and
support application of equitable estoppel.
Plaintiff asserts that the Court should
not apply equitable estoppel because Edelbrock’s arbitration agreement took
effect on 6/5/18, the day Edelbrock hired Plaintiff as a direct employee. Plaintiff claims Defendant should not get the
benefit of Edelbrock’s agreement since she had already concluded her employment
with Defendant by that time. (See
Opposition, pp. 5-7.)
The Court disagrees. The agreement covers “past” claims. (Mendoza Decl., Ex. A, p. 1; see also Reply,
p. 3.) Necessarily, per the plain language,
it applies to claims that arose when Defendant employed Plaintiff and assigned
her to Edelbrock. The claims are
intertwined.
Plaintiff also asserts that Garcia
has been criticized. She cites Soto
v. O.C. Communications, Inc. (N.D. Cal., Nov. 21, 2018, Case No.
17-cv-00251-VC) 2018 WL 10534324. (See
Opposition, pp. 7-8.)
The assertion is unavailing. Soto is a district court
decision. It does not say that Garcia
is wrong; it merely expresses “some doubt” about Garcia. (Soto, supra, 2018 WL 10534324, at *
2.) Regardless, in Franklin v.
Community Regional Medical Center (9th Cir. 2021) 998 F.3d 867,
which postdates and trumps Soto, the Ninth Circuit reasoned that Garcia
“is not an ‘outlier’ case” and that “[t]here are no California decisions
inconsistent with Garcia[.]” (Franklin,
998 F.3d at 871, 872, underlined case name added.) The Ninth Circuit found “no evidence that
the California Supreme Court would reject Garcia’s reasoning.” (Id. at 872, underlined case name added.)
Accordingly, the Court finds
equitable estoppel applicable and grants Defendant’s motion.
Date: 10/3/22
Time: 11:00
am
Moving Party: Edelbrock
Foundry, LLC (“Defendant” or “Edelbrock”)
Opposing Party: Elizabeth
Ruiz (“Plaintiff”)
Department: 11
Judge: David
S. Cunningham III
________________________________________________________________________
TENTATIVE RULING
Defendant’s motion to compel arbitration is granted as to the individual
PAGA[1]
claim, and the case is stayed as to the representative PAGA claim.
BACKGROUND
Edelbrock is a California company doing business in Los Angeles
County. (See First Amended Complaint
(“FAC”), ¶ 16.)
EmployBridge, LLC (“EmployBridge”) is a California staffing agency. (See id. at ¶ 17.)
EmployBridge assigned Plaintiff to work for Edelbrock. Eventually, Edelbrock hired her. Plaintiff claims EmployBridge and Edelbrock
both employed her. (See id. at ¶ 15; see
also Mendoza Decl., ¶¶ 5-6.)
The
case started out as a putative “wage and hour” class action. Plaintiff filed the complaint on 5/18/20,
seeking to represent current and former nonexempt employees of Edelbrock and
EmployBridge.
On
10/2/20, Plaintiff filed the FAC, adding a PAGA cause of action.
On
2/16/21, Judge Ann Jones granted EmployBridge’s motion to compel arbitration,
dismissed the class claims, and stayed the PAGA action pending the
arbitration’s completion.
Here,
Edelbrock moves to compel arbitration of Plaintiff’s individual PAGA claim and
to dismiss the representative PAGA claim.
DISCUSSION
Late
Opposition
Plaintiff’s opposition brief is
late. It was due 9/19/22, nine court
days before the hearing, but Plaintiff filed it after close of business on
9/20/22.
The Court has considered the late
opposition brief. It does not change the
outcome. As explained next, the Court
finds that the motion should be granted notwithstanding the opposition
arguments, so there is no harm.
Waiver
Plaintiff contends the motion
should be denied because Defendant waived the right to compel arbitration. Specifically, Plaintiff contends Defendant
delayed, suddenly filing the motion after the parties spent eight months
preparing to mediate the PAGA claims.
(See Opposition, pp. 8-11.)
Defendant asserts that it would
have been futile to file the motion sooner because, prior to the High Court’s
decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906
(“Viking River”), the law prohibited arbitration of individual PAGA
claims. (See Motion, pp. 12-16, 17-18;
see also Reply, pp. 8-9.)
“The right to compel arbitration arises from the parties'
contract and, as with other contractual rights, is subject to waiver. Such waiver may be express or implied from the
parties' conduct. [Citations.]” (Warren, et al., Cal. Prac. Guide: Alt. Disp.
Res. (The Rutter Group 2021) ¶ 5:167.)
“Waiver usually ‘denotes the voluntary relinquishment of a
known right . . .’ But ‘it can also
refer to the loss of a right as a result of a party's failure to perform an act
it is required to perform, regardless of the party's intent to relinquish the
right.’ [Citation.]” (Id. at ¶ 5:167.1.)
“Waiver of the right to arbitrate ‘does not require a
voluntary relinquishment of a known right . . .’ For example, a party may waive the right by an
untimely demand even without any intent to forgo the procedure.” (Ibid.) “In this circumstance, waiver is similar to ‘a
forfeiture arising from the nonperformance of a required act.’ [Citation.]”
(Ibid.)
“A party seeking to prove waiver of a right to arbitration
must demonstrate ‘(1) knowledge of
an existing right to compel arbitration; (2) acts inconsistent with
that existing right; and (3) prejudice to
the party opposing arbitration.’
[Citation.]” (Id. at ¶ 5:168,
emphasis in original.)
“The law favors arbitration,
and waiver will not be ‘lightly inferred.’ The party claiming the other waived the right
to arbitrate ‘bears a heavy burden of proof.’
[Citations.]” (Id. at ¶ 5:169,
emphasis in original.)
Based on these rules, The Court finds the waiver argument
unavailing. Viking River was
decided on 6/15/22. Defendant moved to
compel arbitration on 7/7/22, less than a month later. (See Reply, pp. 8-9.) Defendant is correct that Viking River
changed the law and that it would have been futile to move before the Viking
River decision. (See Viking River,
supra, 142 S.Ct. at 1917 [noting that “California law prohibit[ed]
division of a PAGA action into” individual and representative claims]; see also
Iskanian v. CLS Transportation
Los Angeles, LLC (2014)
59 Cal.4th 348, 376 [stating that “futility as grounds for delaying
arbitration is implicit in the general waiver principles” endorsed by the
California Supreme Court]; Reply, pp. 7-8.)
It follows that Defendant did not waive the right to compel arbitration.
Existence and Assent
“[W]hen
a petition to compel arbitration is filed and accompanied by prima facie
evidence of a written agreement to arbitrate the controversy, the court itself
must determine whether the agreement exists and, if any defense to its enforcement
is raised, whether it is enforceable.” (Rosenthal
v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394,
413.)
“Under ‘both federal and state law, the threshold
question . . . is whether there is an agreement to arbitrate.’” (Cruise v. Kroger Co. (2015) 233
Cal.App.4th 390, 396, emphasis in original.)
The
burden of proof rests with the petitioner.
(See Rosenthal, supra, 14 Cal.4th at 413 [requiring the
petitioner to prove the existence of the agreement “by a preponderance of the
evidence”].) To meet the burden, “the provisions of the written
agreement and the paragraph that provides for arbitration . . . must be stated
verbatim or a copy must be physically or electronically attached to the
petition and incorporated by reference.”
(Cal. Rules of Court, rule 3.1330; see also Condee v. Longwood
Management Corp. (2001) 88 Cal.App.4th 215, 218 [same].)
“Competent
evidence is required to establish both the existence of the arbitration
agreement and any ground for denial.”
(Knight, et al., Cal. Prac. Guide: Alternative Dispute Resolution (The
Rutter Group 2021) ¶ 5:321.) “The
verified petition (and attached copy of the agreement) normally proves the
existence of the arbitration agreement. Affidavits
or declarations may be necessary when factual issues are tendered.” (Ibid.)
Edelbrock
officially hired Plaintiff on 6/5/18.
(See Mendoza Decl., ¶ 6.) “During
the onboarding process,” Edelbrock provided the subject arbitration agreement
to her. (Id. at ¶ 8.)
The
agreement is titled “MUTUAL AGREEMENT TO BINDING ARBITRATION OF
CLAIMS[.]” (Id. at Ex. A, p. 1,
bolding and capitalizing in original.)
It
states that the parties “mutually consent” to use binding arbitration to
resolve all claims and controversies, it identifies covered and uncovered
claims, it provides that the Federal Arbitration Act (“FAA”) applies, it
requires arbitration to be conducted according to JAMS rules unless the parties
agree, in writing, to use other procedural rules, and it
notes that Edelbrock engages in interstate commerce. (See id. at Ex. A, pp. 1-3, 5.)
It contains “class and PAGA
waiver,” “jury waiver,” and severability provisions:
To the maximum
extent permitted by law, I hereby waive any right to bring on behalf of persons
other than myself, or to otherwise participate with other persons in, any
class, collective, or representative action (including but not limited to
any representative action under [PAGA], or other federal, state or
local statute or ordinance of similar effect). I understand, however, that to
the maximum extent permitted by law I retain the right to bring claims in
arbitration, including PAGA claims, for myself as an individual (and only for
myself). If a court adjudicating a case involving the Company and me were to
determine that there is an unwaivable right to bring a PAGA representative
action, any such representative action shall be brought only in court, and not
in arbitration.
* * *
I UNDERSTAND BY
VOLUNTARILY AGREEING TO THIS BINDING ARBITRATION PROVISION, BOTH I AND THE COMPANY
GIVE UP OUR RIGHTS TO TRIAL BY JURY.
* * *
Construction and
Severability:
If any provision of
this Agreement is adjudged to be void or otherwise unenforceable, in whole or
in part, such adjudication shall not affect the validity of the remainder of
the Agreement. All other provisions shall remain in full force and effect based
on the parties’ mutual intent to create a binding agreement to arbitrate their
disputes.
(Id. at Ex. A, pp. 2, 6, italics
added, capitalizing and bolding in original.)
It addresses arbitrator
selection, explains how to initiate arbitration, and discusses arbitration
procedures, motion practice, fees and costs, and judicial review. (See id. at Ex. A, pp. 3-5.)
Just above the
signature lines, it emphasizes:
Voluntary
Agreement:
I ACKNOWLEDGE
THAT I HAVE CAREFULLY READ THIS AGREEMENT, THAT I UNDERSTAND ITS TERMS, THAT
ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND ME RELATING TO THE
SUBJECTS COVERED IN THE AGREEMENT ARE CONTAINED IN IT, AND THAT I HAVE ENTERED
INTO THE AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR
REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT
ITSELF.
I UNDERSTAND THAT
BY SIGNING THIS AGREEMENT I AM GIVING UP MY RIGHT TO A JURY TRIAL ON ANY CLAIM
THAT I MAY HAVE AGAINST EDELBROCK, INCLUDING , BUT NOT LIMITED TO CLAIMS UNER
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 AS AMENDED, THE FAIR EMPLOYMENT &
HOUSING ACT OF CALIFORNIA, AS SET FORTH IN CALIFORNIA GOVERNMENT CODE, THE
LABOR CODE, CLAIMS FOR WAGES, COMPENSATION AND BENEFITS, EXCEPT AS OUTLINED
ABOVE, AND ANY CLAIMS ARISING IN CONTRACT OR TORT.
I FURTHER
ACKNOWLEDGE THAT I HAVE BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT
WITH MY PRIVATE LEGAL COUNSEL AND HAVE AVAILED MYSELF OF THAT OPPORTUNITY TO
THE EXTENT I WISH TO DO SO.
(Id. at Ex. A,
pp. 6-7, bolding and capitalizing in original.)
Importantly, Plaintiff’s printed
name and signature appear on the signature line, and her initials appear in
other parts of the agreement. (See id.
at ¶ 10 and Ex. A, pp. 5, 6, 7.) She
does not dispute that she signed the agreement.
These provisions and facts
demonstrate an agreement to arbitrate.
Enforcement
Defendant argues that the Court
should grant the motion as to Plaintiff’s individual PAGA claim and dismiss the
representative PAGA claim because Plaintiff lacks standing. (See Motion, pp. 16-17; see also Reply, pp.
11-14.)
Plaintiff claims the “PAGA
waiver” provision is unenforceable, and she should be permitted to litigate the
representative PAGA claim. (See
Opposition, pp. 11-15.)
Prior to Viking River, the
applicable law was Iskanian. “Iskanian’s
principal rule prohibits waivers of ‘representative’ PAGA claims in the first
sense.” (Viking River, supra, 142
S.Ct. at 1916, underlined case name added.)
“That is, it prevents parties from waiving representative standing
to bring PAGA claims in a judicial or arbitral forum.” (Ibid., emphasis in original.) “But Iskanian also adopted a secondary
rule that invalidates agreements to separately arbitrate or litigate
‘individual PAGA claims for Labor Code violations that an employee suffered,’
on the theory that resolving victim-specific claims in separate arbitrations
does not serve the deterrent purpose of PAGA.”
(Id. at 1916-1917, underlined case name added; see also, e.g., Knight,
supra, at ¶ 5:49.4m [citing California case law for the proposition that a
“single count under PAGA could not be ‘split into an arbitrable individual
claim and a nonarbitrable representative claim”].)
In Viking River, the
plaintiff “executed an agreement to arbitrate any dispute arising out of her
employment.” (Viking River,
supra, 142 S.Ct. at 1916.) “The agreement contained a ‘Class Action
Waiver’ providing that in any arbitral proceeding, the parties could not bring
any dispute as a class, collective, or representative PAGA action.” (Ibid.) “It also contained a severability clause
specifying that if the waiver was found invalid, any class, collective,
representative, or PAGA action would presumptively be litigated in court.” (Ibid.) “But under that severability clause, if any ‘portion’
of the waiver remained valid, it would be ‘enforced in arbitration.’” (Ibid.)
“After leaving her position” with the defendant, the
plaintiff “filed a PAGA action . . . in California court.” (Ibid.)
“Her complaint contained a claim that [the defendant] had failed to
provide her with her final wages within 72 hours, as required by” Labor Code
sections 101 and 102. (Ibid.) “But the complaint also asserted a wide array
of other code violations allegedly sustained by other . . . employees,
including violations of provisions concerning the minimum wage, overtime, meal periods,
rest periods, timing of pay, and pay statements.” (Ibid.)
The defendant “moved to compel arbitration of [the plaintiff’s] ‘individual’
PAGA claim” – i.e., “the claim that arose from the violation she suffered — and
to dismiss her other PAGA claims.”
(Ibid.) “The trial court denied
that motion, and the California Court of Appeal affirmed, holding that
categorical waivers of PAGA standing are contrary to state policy and that PAGA
claims cannot be split into arbitrable individual claims and nonarbitrable ‘representative’
claims.” (Ibid.)
The Court of Appeal’s ruling “was dictated by . . . Iskanian.” (Ibid., underlined case name added.) “Iskanian’s principal prohibition
required the lower courts to treat the representative-action waiver” in Viking
River “as invalid insofar as it was construed as a wholesale waiver of PAGA
standing.” (Id. at 1917, underlined case
name added.) “The agreement's severability
clause, however, allowed enforcement of any ‘portion’ of the waiver that
remained valid, so the agreement still would have permitted arbitration of [the
plaintiff’s] individual PAGA claim even if wholesale enforcement was
impossible.” (Ibid.) “But because” Iskanian “prohibits
division of a PAGA action into constituent claims, the state courts refused to
compel arbitration of that claim as well.”
(Ibid.)
The United States Supreme Court
granted review and reversed, holding, eight to one, that the FAA preempts Iskanian
“insofar as it precludes division
of PAGA actions into individual and non-individual claims through an agreement
to arbitrate.” (Id. at 1924.) The opinion instructs:
This holding compels reversal in this
case. The agreement between [the
defendant] and [the plaintiff] 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, [the defendant] was
entitled to enforce the agreement insofar as it mandated arbitration of [the
plaintiff’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 [the defendant] is entitled to compel arbitration of
[the plaintiff’s] individual claim.
(Id. at 1924-1925, underlined case names added.)
The opinion continues:
The remaining question is what the lower
courts should have done with [the plaintiff’s] non-individual claims. Under our holding in this case, those claims
may not be dismissed simply because they are “representative.” Iskanian’s
rule remains valid to that extent. But
as 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. [Citation.] When an employee's own dispute is pared away
from a PAGA action, the employee is no different from a member of the general
public, and PAGA does not allow such persons to maintain suit. [Citation.]
As a result, [the plaintiff] lacks statutory standing to continue to
maintain her non-individual claims in court, and the correct course is to
dismiss her remaining claims.
(Id. at 1925, underlined case
name added.)
Four takeaways seem apparent:
* Iskanian’s
prohibition against waiving representative PAGA claims stands;
* Iskanian
is preempted to the extent it bars dividing PAGA claims into individual and
representative claims;
* the presence
of a severability clause allows the defendant to compel the plaintiff’s
individual PAGA claim to arbitration; and
* once the
plaintiff’s individual PAGA claim is compelled to arbitration, he or she lacks
standing to maintain the representative PAGA claim.
The High Court’s standing ruling
is nonbinding. In fact, the California
Supreme Court is set to decide the standing question in a case called Adolph
v. Uber Technologies, Inc.
Accordingly, the Court:
* compels
Plaintiff’s individual PAGA claim to arbitration; and
* stays the case
as to the representative PAGA claim until the California Supreme Court rules.