Judge Eddie C. Sturgeon, Case 37-2020-00022617-CU-OE-CTL 2023-12-08 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2020-00022617-CU-OE-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited Other employment Motion Hearing (Civil) 37-2020-00022617-CU-OE-CTL MARTINEZ VS OMNI HOTELS MANAGEMENT CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 11/14/2023

Plaintiffs Enrique Martinez and Eric Trumpe's Motion for Reconsideration and Motion to Lift Stay are DENIED. As an initial matter, the court has considered the merits of Plaintiffs' request for reconsideration given the court's inherent authority to reconsider its prior orders based on the evidence at the time or new law.

Plaintiffs' request is primarily based on reasserting its argument that because the waiver of representative claims in the arbitration agreement is unenforceable, the exclusive remedy provision requires that 'the only forum for such an action is the federal or state court in that jurisdiction' (i.e., this court). (See, e.g., ROA 73, Ex. A, §§ 2, 13.) The court already rejected this argument once in ruling on the Motion to Compel Arbitration (ROA 95) and does so again now even after reviewing Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.4th 967.

To evaluate Plaintiff's argument, there are three relevant sections of the arbitration agreement: - Section 2: 'The Company and the Associate further agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated as a class, consolidated, collective or representative action.' - Section 13: 'For claims covered by this Program, arbitration on an individual basis is the parties' exclusive remedy. . . . In the event that the waiver is found to be unenforceable or unlawful, the only forum for such an action is the federal or state court in that jurisdiction.' - Section 16.4: 'If any provision of this Program or the 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 Program or Agreement.' (ROA 73, Solis Decl., Ex A.) Plaintiff argues that because a waiver of PAGA claims is unenforceable, Section 13 requires that the entire action, including the individual PAGA claims, be heard in court.

Plaintiff has contrasted Section 13 with Viking River, where the waiver at issue included a severability clause that stated that 'any 'portion' of the waiver that remains valid must still be 'enforced in arbitration.'' (Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1924-1925.) But as this court already ruled, when read in harmony, Sections 13 and 16.4 permit the court to find various portions of the agreement enforceable in part and unenforceable in part. The waiver is unenforceable to the extent it purports to waive representative PAGA claims. The agreement is not unenforceable to the degree it purports to mandate the arbitration of Plaintiff's individual PAGA claims.

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2986516 7 CASE NUMBER: CASE TITLE: MARTINEZ VS OMNI HOTELS MANAGEMENT CORPORATION 37-2020-00022617-CU-OE-CTL Moreover, a reasonable reading of Section 13 is that 'In the event that the [class and representative] waiver is found to be unenforceable or unlawful, the only forum for such an action [i.e., a class or representative action] is the federal or state court in that jurisdiction.' In other words, class and representative claims must be heard in federal or state court to the degree the waiver is unenforceable.

However, the arbitration agreement with respect to individual claims-including individual PAGA claims-remains enforceable.

Plaintiff's positions on this point were well stated and considered by the court at oral argument on February 10, 2023. (E.g., ROA 108, Nordlund Decl., Ex. A.) The court finds Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.4th 967, which is the only new case cited to justify the motion for reconsideration, to be factually distinguishable in that the agreement there specifically and expressly invalidated the entire arbitration agreement rather than authorizing partial severance. The motion for reconsideration is denied.

Plaintiff also requests that the court lift the stay as to the representative PAGA causes of action so that they may pursue discovery. However, the California Supreme Court's ruling in Adolph v. Uber Technologies Inc. is consistent with this court's decision. (See Adolph v. Uber Technologies Inc. (2023) 14 Cal.5th 1104, 1123-1124 [approving of a procedure whereby individual claims are arbitrated first while the representative claims are stayed].) The motion to lift stay is also denied.

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