Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Brilliant Earth LLC 

 

RESPONDING PARTY: Plaintiff Veronica Cusimano 

 

BACKGROUND 

Plaintiff Veronica Cusimano was employed by Defendant Brilliant Earth LLC for four and a half months.  Plaintiff’s Complaint alleges a single cause of action under the Private Attorneys General Act (“PAGA”).  Plaintiff asserts her PAGA claims on behalf of herself and “other non-exempt California employees who currently work or formerly worked for Defendants.”  (Compl. ¶1.) 

Plaintiff alleges that Defendant failed to include bonuses earned by Plaintiff and other aggrieved employees in the calculation of their regular rates for overtime pay, meal and rest period premiums and sick pay.  (Compl. ¶1(a).)  Plaintiff also claims Defendant failed to provide rest and meal periods, pay rest and meal break premiums, reimburse necessary business expenses, provide accurate wage statements, and pay all wages due upon separation.  (Compl. ¶¶ 1(b)-(f).)   

This hearing is on Defendant’s petition to compel arbitration.  Defendant argues that a valid arbitration agreement exists which requires arbitration of the individual PAGA claims asserted by Plaintiff, and that Plaintiff lacks standing to pursue the non-individual PAGA claims pursuant to Viking River Cruises v. Moriana (2022) 142 S. Ct. 1916. 

LEGAL STANDARD 

Under CCP §1281.2, “[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  

“The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.) 

In deciding whether to compel arbitration, judges identify the controversy and then decide whether it is within the scope of the arbitration provisions. (Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.) “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.  The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.” (California Correctional Peace Officers Ass'n v. State¿(2006) 142 Cal.App.4th 198, 205.) 

 

REQUEST FOR JUDICIAL NOTICE 

Plaintiff seeks judicial notice of a (1) supplemental letter brief filed in the matter of Adolph v. Uber Technologies, Inc. (Exhibit A) and (2) a California Supreme Court Docket for the matter captioned Adolph v. Uber Technologies, Inc. (Exhibit B).  Defendant does not oppose the request to judicially notice the docket, but argues the Court cannot judicially notice the arguments raised in the supplemental letter brief.  The Court agrees.  To the extent Plaintiff asks the Court to judicially notice that the Supreme Court is considering an issue relevant to this motion, the docket serves that purpose.  However, to the extent Plaintiff is asking the Court to consider the truth of matters and arguments raised in the supplemental brief, judicial notice is improper.  (Bach v. McNelis¿(1989) 207 Cal. App. 3d 852, 865¿(not proper for court to take judicial notice of truth of matters asserted in¿a brief);¿Moore v. Regents of University of California¿(1990) 51 Cal.3d 120, 125 (court does not “assume the truth of contentions, deductions, or conclusions”¿ of law whether such appear on face of the pleading or exhibits thereto).)  Accordingly, the Court grants the judicial notice as to Exhibit A and denies judicial notice as to Exhibit B. 

TIMELINESS OF OPPOSITION 

Defendant argues that Plaintiff’s Opposition is untimely, and the Court should strike it.  Plaintiff’s Opposition was due nine court days before the hearing on April 27, 2023.  (Code Civ. Proc. § 1005(b).)  Plaintiff filed her Opposition on April 14, 2023 which is nine court days before April 27, 2023.  Accordingly, Plaintiff’s Opposition is timely.   

DISCUSSION 

Plaintiff does not dispute that she voluntarily signed the Arbitration Agreement.  Rather, Plaintiff argues that the Arbitration Agreement is invalid and unenforceable because it includes a wholesale waiver of PAGA claims that is non-severable.  The Court agrees.   

The Supreme Court in Viking River Cruises v. Moriana held that “wholesale waiver[s] of PAGA claims … remain invalid.”  (142 S. Ct. at 1924-1925.)  Here, the Arbitration Agreement waives all representative claims, and a PAGA claim is by definition a representative claim.  The Agreement states: “The arbitration will take place on an individual basis without resort to any form of class or representative action (the ‘Class Action Waiver’).  THE CLASS ACTION WAIVER PRECLUDES YOU FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING A LEGAL DISPUTE.” (Exs. A-B to Yas Decl.)   

In Perez v. U-Haul Co. of California (2016) 3 Cal.App. 5th 408, 420, the California Court of Appeals held that “because the parties did not agree to arbitrate representative claims, and that a PAGA action is by definition a form of representative claim … PAGA claims are categorically excluded from the arbitration agreement.”  Thus, because there is a wholesale waiver of PAGA claims, the Arbitration Agreement is unenforceable.   

Defendant cites to federal court cases that have concluded a “representative claim” includes only non-individual PAGA claims and therefore a waiver of representative claims is not a wholesale waiver of PAGA claims.  (See, e.g., Dhaliwal v. Ace Hardware Corp. (E.D. Cal. Mar. 17, 2023) 2023 U.S. Dist. LEXIS 45492 at *21-*22 (no wholesale waiver of PAGA claims where Agreement provides that¿non-individual¿PAGA claims are waived, but¿individual¿PAGA claims may be brought); Valencia v. Mattress Firm Inc. (N.D. Cal. Feb. 16, 2023) 2023 U.S. Dist. LEXIS 26863 at *7-*8 (“True, the agreement provides for the waiver of ‘any right to bring claims as class, collective or representative action.’  The immediately preceding sentence, however, makes clear that ‘[a]ll claims covered by this Agreement are intended to be brought and resolved on an individual basis.’ … This shows that the phrase ‘representative action’ refers to non-individual or class claims.  The agreement therefore allows plaintiff to raise the individual portion of her PAGA claim and does not operate as a wholesale waiver.”).)  But the Court is bound by Perez, and these federal court cases are not controlling.   

The defendant in Viking River was able to compel the plaintiff’s individual PAGA claim to arbitration notwithstanding the illegal wholesale PAGA waiver because the arbitration agreement there included a severability clause.  It “provide[d] that if the waiver provision [was] invalid in some respect, any portion of the waiver that remain[ed] valid must still be enforced in arbitration.  Based on this clause, Viking was entitled to enforce the [arbitration] agreement insofar as it mandated arbitration of [plaintiff’s] individual PAGA claim.”  (Viking, 142 S.Ct. at 1925.)   

Unlike in Viking River, the Arbitration Agreement here does not contain any severability provision, but instead contains the exact opposite – an express non-severability provision that dictates that the Class Action Waiver is “non-severable from the agreement to arbitrate the Legal Dispute.”  (Ex. B to Yas Decl.)   

Securitas Security Services USA, Inc. v. Superior Court (2015) 234 Cal.App.4th 1109, 1125 is instructive.  There the employer and employee entered into an arbitration agreement with a non-severability provision similar to the one at issue here: “Notwithstanding any other clause in this Agreement, the preceding [class and representative action waiver] shall not be severable from this Agreement …”  Based on this non-severability clause, the Court held that while the trial court “correctly determined the class [and representative] action waiver to be unenforceable, it erred by then severing the waiver from the [arbitration] agreement.”  (Id. at 1126.)  Because the illegal provision was non-severable, the arbitration agreement was “unenforceable in its entirety,” and the trial court must “vacate its order and enter a new order denying [the defendant’s] motion to compel arbitration.”  (Id. at 1126-1127.) 

Because the Court concludes the arbitration agreement is unenforceable, it does not go on to consider whether the non-individual PAGA claims should be dismissed or stayed.   

CONCLUSION 

Based on the foregoing, the Court DENIES Defendant’s petition to compel arbitration.   

 

IT IS SO ORDERED. 

 

DATED: April 27, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court