Judge David S. Cunningham, Case Number: 23STCV29086, Date: 2024-07-31 Tentative Ruling

Judge: David S. Cunningham, Case: 23STCV29086, Date: 2024-07-31 Tentative Ruling

Moving Party: Artisanal Brewers Collective, LLC (“Defendant” or “ABC”)

Plaintiff’s evidentiary objections are overruled as to numbers 1, 2, 3, and 5 and sustained as to number 4.

Defendant’s motion to compel arbitration is granted as to Plaintiff’s individual claims.

Plaintiff’s representative Private Attorneys General Act (“PAGA”) claim is stayed.

ABC owns and operates bars and restaurants. Plaintiff used to work for ABC. He claims ABC subjected him and other current and former employees to multiple wage-and-hour violations.

“[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.4^th 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.4^th 390, 396, emphasis in original.)

The burden of proof rests with the petitioner. (See Rosenthal, supra, 14 Cal.4^th 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.4^th 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. Practice Guide: Alternative Dispute Resolution (The Rutter Group December 2023 Update) ¶ 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.)

Plaintiff started working for Defendant in March 2022. (See Cuevas Decl., ¶ 5.) As part of the hiring process, Defendant emailed onboarding documents to Plaintiff. (See id. at ¶¶ 8-9, 11.) The onboarding documents included an offer letter, job application, Defendant’s employee handbook, which contained Defendant’s arbitration agreement, a meal-period waiver, a W-4 form, a wage notice, and emergency-contact form, and a direct-deposit form. (See id. at ¶ 10.)

The arbitration agreement is attached to the declaration of Yezmin Cuevas, Defendant’s director of human resources, at exhibit A. It states:

Any controversy, dispute or claim between any employee and the Company, or its officers, agents or other employees, subsidiaries, affiliates, parent, or sister corporations, shall be settled by binding arbitration, at the request of either party. The arbitrability of any controversy, dispute or claim under this policy shall be determined by application of the substantive provisions of the Federal Arbitration Act (9 U.S.C. Sections 1 and 2) ("FAA"). To the extent that the FAA is inapplicable, the arbitration law of the state in which employee works or last worked for the Company shall apply. Arbitration shall be the exclusive method for resolving any dispute, provided, however, that either party may request provisional relief from a court of competent jurisdiction, as provided under federal or state law. Even if the Company does not sign for its receipt or acknowledgment of this policy, the Company, like the employee, agrees to be bound by this policy and agrees to arbitrate all disputes with its employees or former employees.

The claims which are to be arbitrated under this policy include, but are not limited to, claims for breach of trade secret law, claims regarding breaches of confidentiality, violation of non-disclosure/non-solicitation provisions, embezzlement/conversion, employee theft, claims for wages and other compensation, claims for breach of contract (express or implied), claims for violation of public policy, wrongful termination, tort claims, claims for unlawful discrimination and/or harassment (including, but not limited to, race, religious creed, color, national origin, ancestry, physical disability, mental disability, gender identity or expression, medical condition, marital status, age, pregnancy, breastfeeding, sex or sexual orientation) to the extent allowed by law, and claims for violation of any federal, state, or other government law, statute, regulation, or ordinance, except for claims for workers' compensation, unemployment insurance benefits, and petitions or charges that could be brought before the National Labor Relations Board.

BOTH THE COMPANY AND EMPLOYEES UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES THEY ARE GIVING UP ANY RIGHT THAT THEY MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO EMPLOYMENT-RELATED MATTERS.

The employee and the Company will select an arbitrator by mutual agreement. If the employee and the Company are unable to agree on a neutral arbitrator, either party may elect to obtain a list of arbitrators from the Judicial Arbitration and Mediation Service ("JAMS"), Alternative Dispute Resolution ("ADR"), or any other reputable dispute resolution organization. An explanation of procedures and rules for both JAMS and ADR may be obtained from the Human Resources department upon request or can be found online at http://www.jamsadr.com/ and http://www.adrservices.org/.

The demand for arbitration must be in writing and must be made by the aggrieved party within the statute of limitations period provided under applicable federal and/or state law for the particular claim. Failure to make a written demand within the applicable statutory period constitutes a waiver of the right to raise that claim in any forum. Arbitration proceedings will be held in the county in which employee was last employed.

The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of the state in which the claim arose, or federal law, or both, as applicable to the claim(s) asserted. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies. The arbitrator shall apply the state-specific Evidence Code to the proceeding or, if none available, the Federal Rules of Evidence. The parties shall be entitled to conduct all discovery to which they would have been entitled to had the parties' controversy been filed in court, provided, however, that the arbitrator shall have the discretion to issue protective orders or otherwise limit discovery where reasonably necessary, taking into account the parties’ mutual desire to have a speedy, less formal, cost-effective dispute resolution mechanism. The arbitrator shall have the authority to hear motions for summary disposition by any party and shall apply the substantive standards governing such motions under the applicable federal or state law. Hearing on dispositive motions shall be made in accordance with the briefing and hearing schedule established by the arbitrator in accordance with the employment rules of the alternative dispute organization selected. The arbitration shall be final and binding upon the parties, except as provided in this Agreement.

Following the hearing and the submission of the matter to the arbitrator, the arbitrator shall issue a written opinion and award which shall be signed and dated. The arbitrator shall use her/his best efforts to issue the written award no later than thirty (30) days from the date the arbitration hearing concludes or the post-hearing briefs (if requested) are received, whichever is later. The arbitrator’s award shall decide all issues submitted by the parties, and the arbitrator may not decide any issue not submitted. The arbitrator shall prepare in writing and provide to the parties a decision and award which includes factual findings and the reasons upon which the decision is based. The arbitrator shall be permitted to award only those remedies in law or equity which are requested by the parties and allowed by law.

Either party shall have the right, within twenty (20) days of issuance of the arbitrator’s decision, to file a motion to reconsider (accompanied by a supporting brief) with the arbitrator, and the arbitrator shall have jurisdiction to consider and rule upon such motion. The other party shall have twenty (20) days from the date of the motion to reconsider and respond. The arbitrator thereupon shall reconsider the issues raised by the motion and, promptly, either confirm or change the decision, which (except as provided by law) shall then be final and conclusive upon the parties, except to the extent rights for appeal are provided under the FAA or applicable state law.

The final award may be appealed to another arbitrator who will be chosen by the parties in the same manner as the original arbitrator. All the rules governing judicial appeals of judgments from the Superior Court shall apply to any appeal of this award, including but not limited to the time frames, deadlines and the standards of review.

The cost of the arbitrator and other incidental costs of arbitration that would not be incurred in a court proceeding shall be borne by the Company, provided, however, that if the employee is the party initiating the claim, employee will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which employee was last employed by the Company. The parties shall each bear their own costs and attorneys’ fees in any arbitration proceeding, provided, however, that the arbitrator shall have the authority to require either party to pay the costs and attorneys’ fees of the other party, as is permitted under federal or state law, as a part of any remedy that may be ordered.

To the maximum extent permitted by law, employee hereby waives any right to bring on behalf of persons other than him/herself, or to otherwise participate with other persons in, any class, collective, or representative action (including but not limited to any representative action under the California Private Attorneys General Act (“PAGA”), or other federal, state or local statute or ordinance of similar effect). Employee understands, however, that to the maximum extent permitted by law employee retains the right to bring claims in arbitration, including PAGA claims, for themselves as an individual (and only for themselves). If a court adjudicating a case involving the Company and employee 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, and shall be stayed until the individual claim is adjudicated or resolved in the arbitration proceeding.

Only the Compliance Officer may modify this policy, only in a signed writing, and only as is necessary to make this policy enforceable under any federal, state, or local law or other applicable case law effective after this policy's initial dissemination to the workforce. Otherwise, no employee can modify this policy in any manner or enter into any agreement that is contrary to this policy. If any term, provision, covenant or condition of this policy is held by a court of competent jurisdiction or an arbitrator to be invalid, void, or unenforceable, the remaining terms and provisions of this policy will remain in full force and effect and shall in no way be affected, impaired or invalidated.

The arbitration agreement is unsigned; however, Plaintiff e-signed a document titled “Receipt and Acknowledgment[,]” acknowledging that he received the employee handbook. (Id. at Ex. A, p. 98, emphasis in original.) The acknowledgment provides:

This is to acknowledge that I have received a copy of the Artisanal Brewers Collective LLC Employee Handbook. This Handbook sets forth the terms and conditions of my employment as well as the rights, duties, responsibilities and obligations of my employment with the Company. I understand and agree that it is my responsibility to read and familiarize myself with all of the provisions of the Handbook. I further understand and agree that I am bound by the provisions of the Handbook, particularly the provision relating to the mandatory, binding arbitration of any employment-related dispute. I understand that by agreeing to arbitration, I am waiving the right to a trial by jury of the matters covered by the "Arbitration" provisions of the Handbook. I understand that if I have any question about any portion of this Handbook, I may direct those questions to the Human Resources Department including the arbitration policy found on pages 21-27.

WHETHER OR NOT I HAVE SIGNED A SEPARATE AGREEMENT TO ARBITRATE, I UNDERSTAND THAT MY EMPLOYMENT WITH THE COMPANY IS SUBJECT TO BINDING ARBITRATION, WHICH IS SET FORTH IN THE “ARBITRATION” SECTION OF THE HANDBOOK. THIS AGREEMENT TO ARBITRATE CONSTITUTES A WAIVER OF ANY RIGHT THAT THE COMPANY OR I MAY HAVE TO BRING AND PURSUE ANY CLAIM IN A COURT OF LAW WITH A TRIAL BY JUDGE OR JURY. I UNDERSTAND AND ACKNOWLEDGE THAT THE AGREEMENT TO ARBITRATE CONTAINS A WAIVER OF MY ABILITY TO ACT AS A CLASS REPRESENTATIVE IN ANY CLASS ACTION PROCEEDING OR TO PARTICIPATE IN ANY CLASS PROCEEDING AS A MEMBER OF A CLASS. ARBITRATION PROVIDED FOR UNDER THIS AGREEMENT IS THE EXCLUSIVE METHOD TO RESOLVE ANY DISPUTES OR CONTROVERSIES THAT THE COMPANY OR I MAY HAVE, WHETHER OR NOT ARISING OUT OF MY EMPLOYMENT OR TERMINATION OF THAT EMPLOYMENT WITH THE COMPANY.

I understand the Company has the right to amend, modify, rescind, delete, supplement or add to the provisions of this Handbook, as it deems appropriate from time to time in its sole and absolute discretion except where prohibited by law. (The Company will only make changes to this Handbook's Arbitration policy as are necessary to make the Arbitration policy enforceable under any federal, state, or local law or other applicable case law effective after this Handbook's initial dissemination to its workforce). I further understand that my employment is at will and no manager, supervisor, or other employee of the Company, other than the Chief Administrative Officer or the Chief Executive Officer of the Company, can enter into an agreement for continued or indefinite employment or employment for a specific term, position, or rate of pay, and that any such agreement must be in writing.

My signature below certifies that I understand that the foregoing agreement on at will status is the sole and entire agreement between the Company and me concerning the duration of employment and the circumstances under which my employment may be terminated. It supersedes all prior agreements, understandings and representations concerning my employment with the Company.

Facts and terms like these normally suffice to demonstrate an agreement to arbitrate, but Plaintiff raises an assent challenge. He claims Defendant fails to show that he “read, understood, and agreed to be bound by” the agreement’s terms. (Opposition, p. 8.)

The Court disagrees. Lack of memory is not a defense. Nor is failure to read. (See, e.g., Ramos v. Westlake Services LLC (2015) 242 Cal.App.4^th 674, 687 [“[T]he fact that [the plaintiff] signed a contract in a language he may not have completely understood would not bar enforcement of the arbitration agreement. If [the plaintiff] did not speak or understand English sufficiently to comprehend the English Contract, he should have had it read or explained to him.”].) Moreover, the acknowledgment’s plain language contradicts Plaintiff’s claim:

(Cuevas Decl., Ex. A, p. 98, capitalizing in original.) Again, it is uncontested that Plaintiff e-signed the acknowledgment.[1] [2]

Plaintiff also claims the motion should be denied because Defendant failed to submit the entire handbook (see Opposition, p. 7), and the handbook and acknowledgment “do not constitute an arbitration agreement[.]” (Id. at pp. 7-8, capitalizing and italicizing deleted.)

The first point is unpersuasive. It would be against efficiency and the interests of justice to deny the motion simply because Defendant filed excerpts instead of the whole document. Indeed, Plaintiff submitted the full handbook with the opposition papers (see Grigoryan Decl., Ex. A), so it is part of the record and can be considered.

Multiple cases address the second point. They recognize that an unsigned arbitration agreement – which is part of, or provided in connection with, an employee handbook – can be enforced if the employee signed an acknowledgment of receipt. The acknowledgment’s language is a salient feature to evaluate. (See Mitri v. Arnel Management Co. (2007) 157 Cal.App.4^th 1164, 1173; see also Gorlach v. Sports Club Co. (2012) 209 Cal.App.4^th 1497, 1507-1511; Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4^th 373, 381-385; Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5^th 781, 788-792; Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4^th 1511, 1519-1522; Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5^th 748, 782-791; Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4^th 1153, 1158-1160; Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4^th 50, 68-70; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4^th 771, 804-806.)

Given these authorities, the following factors support finding that an arbitration agreement exists:

* the handbook’s table of contents identifies pages and sections pertaining to arbitration (see Grigoryan Decl., Ex. A, p. 1);

* Defendant’s arbitration agreement appears on pages 26 through 32 of the handbook (see id. at Ex. A, pp. 26-32);

* Plaintiff’s e-signature on the acknowledgment is uncontested (see id. at Ex. A, p. 98; see also Cuevas Decl., Ex. A, p. 98); and

* the acknowledgment states that the “‘ARBITRATION’ SECTION OF THE HANDBOOK” is binding on Plaintiff regardless of whether he signed it. (Grigoryan Decl., Ex. A, p. 98, capitalizing in original; see also Cuevas Decl., Ex. A, p. 98.)

Concerning the FAA, the agreement’s wording is clear. It states that “[t]he arbitrability of any controversy, dispute or claim under this policy shall be determined by application” of the FAA’s “substantive provisions[.]” (Grigoryan Decl., Ex. A, p. 26; see also Cuevas Decl., Ex. A, p. 26.)

Because of the clear wording, the Court does not need to decide whether Defendant’s evidence shows an impact on interstate commerce.

Plaintiff asserts that the agreement is unconscionable. (See Opposition, pp. 9-13.)

“[U]nconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, internal quotation marks omitted.) “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.” (Ibid.) “But they need not be present in the same degree.” (Ibid.) “Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.” (Ibid.) “In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Ibid.)

For procedural unconscionability, Plaintiff asserts that the agreement is a contract of adhesion and that it was hidden in the handbook. (See Opposition, pp. 9-12.)

The first point is unavailing. Plaintiff does not cite evidence establishing that Defendant presented the agreement on a take-it-or-leave it basis. More importantly, “a predispute arbitration agreement is not invalid merely because it is imposed as a condition of employment.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1122–1123.) Stated another way, “the mandatory nature of an arbitration agreement does not, by itself, render the agreement unenforceable.” (Ibid.; see also Knight, supra, at ¶ 5:146 [“The mere fact an adhesion contract is involved does not per se render the arbitration clause unenforceable. Rationale: Such contracts are ‘an inevitable fact of life for all citizens – businessman and consumer alike.’”], emphasis in original.)

The second point also fails. To reiterate, the handbook’s table of contents identifies the pages dealing with arbitration, the agreement appears on handbook pages 26 through 32, Plaintiff acknowledged receiving the handbook and agreement, and he acknowledged that the agreement would be binding on him even if he did not sign it. These factors belie Plaintiff’s claim of surprise.

For substantive unconscionability, Plaintiff contends the agreement requires sexual-assault and sexual-harassment claims to be arbitrated (see Opposition, pp. 12-13), fails to exclude public-injunction claims from arbitration (see id. at p. 13), and restricts the arbitration location. (See ibid.)

The Court disagrees. Plaintiff does not allege sexual-assault and sexual-harassment causes of action; he does not seek a public injunction; under the agreement, arbitration of such claims is limited “to the extent allowed by law[;]”[3] and, in compliance with the FAA, the arbitration is expected take place in the county and district where Plaintiff worked for Defendant and where Defendant filed the motion to compel. (Cuevas Decl., Ex. A, p. 26; see also Reply, p. 9.)

Defendant contends the class claims should be stricken. (See, e.g., Motion, p. 14.)

The Court agrees with Defendant. The Court strikes the class claims because the agreement appears to waive class claims (see Cuevas Decl., Ex. A, pp. 28, 98), and the waiver is enforceable under the FAA. (See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4^th 348, 359-360 [finding that the FAA preempts “a state’s refusal to enforce [] a [class] waiver on grounds of public policy or unconscionability”].)

Defendant contends the individual PAGA claim should be arbitrated and the representative PAGA claim should be dismissed or stayed. (See Motion, pp. 11-13; see also Reply, pp. 9-10.)

Plaintiff claims the Court has discretion to deny a stay and to litigate the representative PAGA claim while the arbitration is pending. (See Opposition, pp. 14-15.)

Prior to Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 (“Viking River”), Iskanian controlled. “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[.]” (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.

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.

* Iskanian is preempted to the extent it bars dividing PAGA claims into individual and representative claims;

* the defendant is allowed 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. The California Supreme Court reversed it in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5^th 1104.

This is a recurring issue in numerous cases on the Court’s docket. Considering Iskanian, Viking River, and Adolph, the Court’s approach has been to compel individual PAGA claims to arbitration and to stay representative PAGA claims until the arbitrations finish. Discretion or not, the Court believes the same should be done here.

[1] Plaintiff did not file a declaration. He does not declare that he requested an explanation or that he failed to receive opportunities to read the agreement and to consult attorneys.

[2] Plaintiff’s “fraud in the execution” argument is unavailing. (See Opposition, pp. 8-9.) Plaintiff cites zero evidence showing fraud. (See ibid.) Plus, he expressly agreed that the agreement would be binding on him, signed or not. (See Cuevas Decl., Ex. A, pp. 26, 98.)

[3] The arbitrator can assess the arbitrability of these claims if Plaintiff moves to add them during the arbitration.