Judge Elaine Lu, Case Number: 24STCV07787, Date: 2025-04-08 Tentative Ruling

This is a putative wage-and-hour class and representative action. Plaintiff Dulce Yes (“Plaintiff”) alleges that she and the putative class members are and were employed by Defendant Long Beach Healthcare, LLC (“Defendant”) and that Defendant violated the Labor Code, Industrial Welfare Commission wage orders, and the Business and Professions Code.

On March 27, 2024, Plaintiff filed the instant class action complaint under Los Angeles Superior Court Case No. 24STCV07787 (“Class Action”). In the Class Action complaint, Plaintiff asserts ten causes of action for (1) failure to pay overtime wages, (2) failure to pay minimum wages, (3) failure to provide meal periods, (4) failure to provide rest periods, (5) waiting time penalties, (6) wage statement violations, (7) failure to timely pay wages, (8) failure to indemnify, (9) violation of Labor Code § 227.3, and (10) unfair competition.

On April 2, 2024, Plaintiff filed a representative claim under the Private Attorneys General Act (“PAGA”) under Los Angeles Superior Court Case No. 24STCV08346 (“PAGA Action”). In the PAGA Action complaint, Plaintiff asserts a single claim against Defendant for civil penalties under PAGA.

On January 6, 2025, Defendant filed the moving papers for the instant motion to compel arbitration in the Class Action. On January 30, 2025, the Court found the Class Action and PAGA Action related and designated the Class Action as the lead action. (Minute Order 1/30/25.) Due to the pending motion to compel arbitration in the lead Class Action, the Court ordered Defendant to file and serve any supplemental moving papers to compel arbitration of the PAGA claim in the PAGA Action by March 10, 2025. (Minute Order 1/30/25.) On February 20, 2025, the Class Action and PAGA Action were consolidated for all purposes. (Minute Order 2/20/25.)

On March 10, 2025, Defendant filed a supplemental memorandum of points and authorities. On March 20, 2025, Plaintiff filed a consolidated opposition. On March 25, 2025, Defendant filed a consolidated reply.

In conjunction with the opposition, Plaintiff objects to portions of the declaration of Ryan McAleenan. The Court rules as follows:

7. Sustained as to “Plaintiff’s on-boarding process took place on or around January 16, 2023 and January 17, 2023.” Overruled as to the balance (“Ms. Rosario-Groover was the DSD at the time of this onboarding process”).

13. Sustained as to “signed by Plaintiff on February 23, 2023” – Speculation, Lack of Personal Knowledge. The document may bear this date, but the witness has no personal knowledge of the date of this occurrence. Overruled as to the balance; paragraph 23 lays the foundation that the witness reviewed Plaintiff’s personnel file and pulled this document out of Plaintiff’s personnel file.

14. Sustained as to “on January 16, 2023 and January 17, 2023” – Speculation, Lack of Personal Knowledge. The documents may bear these dates, but the witness has no personal knowledge that Plaintiff actually signed the documents on these dates. Overruled as to the balance; paragraph 23 lays the foundation that the witness reviewed Plaintiff’s personnel file and pulled these documents out of Plaintiff’s personnel file.

In conjunction with the reply, Defendant Partners objects to portions of the declaration of Plaintiff Dulce Armenta. The Court rules as follows:

In general, for due process reasons, the moving party generally may not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court. (Ibid.) Thus, evidence and exhibits presented in support of a reply are not generally allowed. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.)

Accordingly, the Court will not consider the supplemental declaration of Attorney Corina Johnson filed with the reply.[1]

In the opposition, Plaintiff claims that Defendant failed to comply with the Court’s January 30, 2025 Minute Order as it “did not file moving papers concerning the PAGA Action.” (Opp. at p.2:4-5 [italics removed].) Plaintiff further claims that “Defendant’s notice of motion and motion in the Class Action has no bearing on the PAGA Action, which is a distinct and separate case.” (Opp. at p.2:9-10.) Thus, Plaintiff contends that she “has not been properly noticed regarding any motion to compel arbitration in the PAGA Action at this time, and it would be an abuse of discretion to compel Plaintiff’s PAGA Action to arbitration without proper notice and the documents required for that motion.” (Opp. at p.2:11-13.) Plaintiff is mistaken

In its January 30, 2025 Minute Order, the Court ordered Defendant to “file and serve any such supplemental moving papers to compel arbitration of the PAGA claim asserted in 24STCV08346 by 03/10/2025” if Defendant intended to file a motion to compel arbitration of the PAGA claim Plaintiff asserted in the PAGA Action. (Minute Order 1/30/25.) Defendant did so. On March 10, 2025, Defendant filed a supplemental memorandum of points and authorities in support of the instant motion to compel arbitration setting forth why the Arbitration Agreement was applicable to Plaintiff’s PAGA claim.

Plaintiff was clearly aware that Defendant intended to compel arbitration of the PAGA claim on the same grounds as the instant motion filed in the Class Action. Defendant identified in its February 13, 2025 joint statement that it intended to move to compel arbitration of Plaintiff’s PAGA claim, and it timely filed supplemental papers seeking to compel arbitration of Plaintiff’s PAGA claim. There is no distinct separation between the Class Action and the PAGA Action as they have been consolidated for all purposes. (Minute Order 2/20/25.) In sum, with regard to Defendant moving to compel arbitration of Plaintiff’s PAGA claim, Plaintiff has been provided “notice, an opportunity to respond, and a hearing.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.) Moreover, Plaintiff has opposed Defendant’s motion to compel arbitration of Plaintiff’s PAGA claims on the merits. (See e.g., Opp. at pp.13-16.) Thus, Plaintiff has waived any notice defects. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Citations.) This rule applies even when no notice was given at all. (Citations.)’”].)

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972.) Under Code of Civil Procedure section 1281, a “written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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:

(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . .” (Code Civ. Proc., § 1281.2.)

The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (1998) 68 Cal.App.4th 83, 88.) When presented with a petition to compel arbitration, the trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Ibid.)

“Rosenthal [v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394] explained: ‘[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. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ (Rosenthal, supra, at 413.) According to Rosenthal, facts relevant to enforcement of the arbitration agreement must be determined ‘in the manner . . . provided by law for the . . . hearing of motions.’ (Rosenthal, supra, at 413, quoting § 1290.2.) This ‘ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.’ (Rosenthal, supra, at 413-414; . . .).” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761-762.)

Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) “With respect to the moving party’s burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court.” (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.)

Here, Defendant asserts that all of Plaintiff’s claims are subject to an arbitration agreement. In support of this assertion, Defendant presents the declaration of Ryan McAleenan, the current Administrator for Defendant. (McAleenan Decl. ¶ 4.) Defendant’s facility is at 3232 E Artesia Blvd., Long Beach, CA 90805, and Defendant was previously doing business as Windsor Gardens Convalescent Center of Long Beach. (McAleenan Decl. ¶ 6.) “Plaintiff was employed by Defendant as a Cook from January 16, 2023 through April 24, 2023.” (McAleenan Decl. ¶ 12.)

As Administrator, “part of [McAleenan’s] job duties include overseeing hiring procedures, onboarding, training and development of employees, including employees in Defendant’s Dietary department like Plaintiff[.]” (McAleenan Decl. ¶ 11.) As Administrator, McAleenan is also familiar with all of the onboarding documents and is familiar with Defendant’s document recordkeeping procedures for onboarding documents. (McAleenan Decl. ¶ 13.)

Defendant’s Director of Staffing Development conducts the onboarding process for new employees over two days. (McAleenan Decl. ¶ 15.) During onboarding, the Director of Staffing Development distributes the onboarding documents to new employees – including the Arbitration Agreement – and is available to answer any questions or concerns. (McAleenan Decl. ¶ 16.) The onboarding documents – including the Arbitration Agreement – are kept in a secure cabinet in the Director of Staffing Development’s office. (McAleenan Decl. ¶¶ 17, 23.)

Plaintiff’s onboarding records show that her onboarding took place on January 16, 2023 and January 17, 2023 and was overseen by Armay Rosario-Groover – Defendant’s former Director of Staffing Development. (McAleenan Decl. ¶¶ 7, 20, 23.) Plaintiff signed the Arbitration Agreement on February 23, 2023 – more than a month after onboarding. (McAleenan Decl. ¶ 21.) The Arbitration Agreement provides in relevant part:

1. I and Long Beach Healthcare, LLC (Evergreen) agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my application for employment and/or employment by the Company. Such disputes include, but are not limited to, claims I might bring against the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, any individual claims under the California Private Attorneys General Act (“PAGA”), and torts such as invasion of privacy, assault and battery, or defamation. Such disputes also include claims that the Company might bring against me such as, for example, theft of money or trade secrets, breach of a confidentiality agreement, or breach of a contract. I and the Company each specifically waive our respective rights to bring such claims against the other in a court of law and to have a trial by jury. By signing below, I expressly waive the right to bring a class, collective, representative or PAGA claim (unless such waiver is prohibited by controlling law) seeking any relief on behalf of others.

3. My agreement to arbitrate claims against the Company includes claims I might bring against the Company's parent, subsidiaries, affiliates, customers, or client entities as well as against owners, directors, officers, managers, employees, agents, contractors, attorneys, benefit plan administrators, and insurers of the Company or of its parent, subsidiaries, affiliates, customers, of client entities. I also agree to arbitrate claims pursuant to the terms of this Agreement against any person or entity I allege to be a joint employer with the Company as well as claims brought against staffing companies, employee leasing companies, professional employer organization or payroll processing vendors that the Company has utilized/

4. Both I and the Company agree that any claims we might pursue against the other in arbitration under this agreement shall be brought in my individual capacity or that of the Company. This agreement shall not be construed to allow or permit the consolidation or joinder of claims of other claimants, or to permit such claims to proceed as a class or collective action. No arbitrator shall have the authority under this agreement to order any such class or collective action. Any dispute regarding the validity, scope, or enforceability of this agreement, or concerning the arbitrability of a particular claim, shall be resolved by a court, not by the arbitrator. I agree to waive any substantive or procedural rights that I may have to bring or participate in an action brought on a class or collective basis.

5. Both I and the Company agree that any claims under PAGA must be pursued in my individual capacity in arbitration. This agreement shall not be construed to allow or permit the consolidation or joinder of PAGA claims of other claimants. No arbitrator shall have the authority under this agreement to order any such collective action or joinder of claims. Any dispute regarding the validity, scope or enforceability of this provision, or concerning the arbitrability of a PAGA claim, shall be resolved by a court, not by the arbitrator. To the full extent permissible under the law, I agree to waive any substantive or procedural rights that I may have to bring or participate in a PAGA action brought on a collective or non-individual basis. I acknowledge that nothing herein precludes me from pursuing my individual PAGA claim in arbitration. I further acknowledge that upon my execution of this Agreement, I lack standing to pursue, litigate, or act as a representative for any non-individual PAGA claims in a court of law. If any term, provision, or portion of this paragraph is deemed invalid or unenforceable, it shall be severed and the remainder shall remain enforceable in arbitration.

6. If I wish to bring a claim to arbitration under this agreement, I understand that I must provide written notice of such a claim to the Company’s Administrator ] [sic] at 3232 Hast Artesia Boulevard. I understand that I have the right to.be represented by an attorney in the arbitration of any claim under this agreement, but it is not required that I have an attorney. I further understand that I must present notice of any claim in arbitration before the statute of limitations expires for that type of claim. At the beginning of any arbitration process under this agreement, I and the Company will need to select an arbitrator by mutual agreement. Such an arbitrator shall be a retired California Superior Court Judge, retired United States District Court Judge or Magistrate, or another qualified and impartial person that I and the Company decide upon, and shall be subject to disqualification on the same grounds as would apply to a judge in a court proceeding. In the event we cannot agree on the selection of an arbitrator, J and the Company will select an alternative dispute resolution provider and request from that provider a list of an odd number of potential arbitrators. From that list we will alternatively strike arbitrators, with the Company going first, until one arbitrator is left. That arbitrator shall be the arbitrator who will hear our case. If I and the Company cannot agree on an alternative dispute resolution provider, an arbitrator will be appointed according to law.

7. Any arbitration proceeding under this agreement shall proceed under and be governed by the Federal Arbitration Act (“FAA”) because both I and the Company are engaged in interstate commerce. To the extent they are not contrary to the FAA, the procedures of the California Arbitration Act (“Act”) shall also apply. The Act is found at California Code of Civil Procedure section 1280 and the following sections. Section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery shall also apply, and the arbitrator shall have the same authority as a state or federal court would have to issue subpoenas to third parties for production of documents and for depositions, in addition to subpoenas to appear at any arbitration hearing, In any arbitration proceeding under this agreement, all California rules of pleading (including the right of demurrer), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, judgment on the pleadings, and judgment under Code of Civil Procedure Section 631.8 shall apply and be observed, unless I and the Company agree otherwise. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. Likewise, all communications during or in connection with the arbitration proceedings are privileged in accordance with California Civil Code Section 47(b). The arbitrator’s award(s) shall include the arbitrator’s written reasoned opinion. Resolution of all disputes shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of “just cause”) other than such controlling law.

8. The Company will pay the arbitrator’s fees and other costs relating to the arbitration forum but I and the Company will be responsible for our own costs and for our attorneys’ fees should we choose to be represented by counsel, unless the arbitrator shifts one party’s costs and attorneys’ fees to the other party in accordance with applicable law. It is agreed that the Company shall not be responsible for paying the arbitrator’s fees and costs for the arbitration hearing sooner than 60 days before the commencement of the arbitration hearing.

9. If any term or provision or any portion of this agreement is deemed invalid or unenforceable, it shall be severed and the remainder of this agreement shall be enforceable, Under no circumstances shall this agreement be construed to allow the joinder of claims in arbitration or arbitration on a class, collective, representative, or other similar basis. I acknowledge that this Agreement is not intended to interfere with my tights to collectively bargain, to engage in protected, concerted activity, or to exercise other rights protected under the National Labor Relations Act.

10. I confirm that I have had time to read this agreement and ask the Company’s representative any questions I had about the agreement prior to signing this agreement.

The Arbitration Agreement appears to bear Plaintiff’s handwritten signature. (McAleenan Decl. ¶ 24, Exh. A.) “[D]efendants may meet their initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party’s signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060; see also Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [“The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.”].) Accordingly, Defendant meets its moving burden by providing a copy of the Arbitration Agreement that appears to be hand signed by Plaintiff. (McAleenan Decl. ¶ 24, Exh. A.)

In opposition, Plaintiff contends that (1) Defendant fails to authenticate Plaintiff’s signature, and (2) the Arbitration Agreement is unconscionable and therefore unenforceable.

In opposition, Plaintiff states that she began working for Defendant in January 2023 as a cook. (Armenta Decl. ¶ 4.) Plaintiff “do[es] not recall ever seeing this ‘Dispute Resolution Agreement’ document before it was presented to [her] by [her] counsel.” (Armenta Decl. ¶ 7.) Although Plaintiff admits that she does recall signing some documents while starting her employment with Defendant, she does not recall seeing any arbitration agreement. (Armenta Decl. ¶ 8.) “[Plaintiff] ha[s] no recollection of signing any agreement related to arbitration with Defendants in February of 2023, and [she] therefore contest[s] that the signature on the English language document titled ‘Dispute Resolution Agreement.’” (Armenta Decl. ¶ 9.)

There is a split of authority as to whether merely claiming not to remember an arbitration agreement is sufficient to challenge its authenticity. (See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 [finding that a party opposing arbitration can challenge the authenticity of an arbitration agreement bearing a handwritten signature by “testify[ing] under oath or declar[ing] under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.”]; Compare Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 758 [holding that “[i]f a party confronted with his or her handwritten signature on an arbitration agreement is unable to allege that the signature is inauthentic or forged, the fact that that person does not recall signing the agreement neither creates a factual dispute as to the signature's authenticity nor affords an independent basis to find that a contract was not formed.”]; see also Ramirez v. Golden Queen Mining Company, LLC (2024) 102 Cal.App.5th 821, 825 [finding that “an individual is capable of recognizing his or her handwritten signature and if that individual does not deny a handwritten signature is his or her own, that person's failure to remember signing the document does not create a factual dispute about the signature's authenticity.”].)

The Court finds the reasoning in Lyere and Ramirez more compelling as a party can recognize their own handwritten signature and can unequivocally confirm or deny its authenticity. Thus, Plaintiff’s mere lack of recollection in signing the Arbitration Agreement is insufficient to challenge its authenticity.

Moreover, even if the Court were to follow the reasoning in Gamboa and find that Plaintiff’s lack of recollection is sufficient to challenge the authenticity of Plaintiff’s handwritten signature on the Arbitration Agreement, the Court would still conclude that Defendant’s evidence sufficiently authenticates Plaintiff’s handwritten signature.

“Once [Plaintiff] challenge[s] the validity of that signature in his opposition, [Defendants] [are] then required to establish by a preponderance of the evidence that the signature was authentic.” (Espejo, supra, 246 Cal.App.4th at p.1060.) “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) “[W]hile all writings must be authenticated before they are received into evidence (§ 1401), the proponent's burden of producing evidence to show authenticity (§ 1400) is met ‘when sufficient evidence has been produced to sustain a finding that the document is what it purports to be.’ [Citations.] The author's testimony is not required to authenticate a document (§ 1411); instead, its authenticity may be established by the contents of the writing (§ 1421) or by other means (§ 1410 [no restriction on ‘the means by which a writing may be authenticated’] ). ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.’ [Citations.]” (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) Moreover, documents may be authenticated under the business records exception. (Evid. Code § 1271.) “Authentication requires the entries to have been made in the regular course of business, at or near the event and the method and time of preparation tend to indicate the entry's trustworthiness.” (People v. Landau (2016) 246 Cal.App.4th 850, 872, Fn.7.)

As the trier of fact,^{^[2]} the Court may determine the genuineness of the signature on the arbitration agreement by comparing it with signatures on other documents admittedly signed by Plaintiff.

In conjunction with the moving papers, Defendant includes Plaintiff’s onboarding documents that she signed. (McAleenan Decl. ¶ 25, Exh. B.) Plaintiff admits that she does recall these other documents and that she does recall signing them. (Armenta Decl. ¶¶ 5, 8.)

In opposition, Plaintiff contends that these onboarding documents should not be considered because these onboarding documents “were not documents signed with Defendant, but with Windsor Gardens Convalescent Center of Long Beach, which is clear by the Windsor logo on the documents[,]” (Opp. at p.1:13-14 [emphasis removed]), and thus, McAleenan could not authenticate or lay the foundation for these documents. This contention is belied by the factual record and Plaintiff’s own allegations.

Plaintiff alleges that she was employed by Defendant from January 2023 through April 2023. (Class Action Complaint ¶ 2.) Plaintiff confirms in her declaration that “[she] began working for Defendant in or around January 2023 as a cook[.]” (Armenta Decl. ¶ 4.) Though the onboarding documents appear to identify Windsor Gardens Convalescent Center of Long Beach – not Defendant – McAleenan clarifies in his declaration that Windsor Gardens Convalescent Center of Long Beach was the former doing business as name for Defendant’s facility. (McAleenan Decl. ¶ 6.) Thus, considering Plaintiff’s own allegation that she worked for Defendant as a cook starting in January 2023, and Defendant’s evidence that Windsor Gardens Convalescent Center of Long Beach was the former doing business as name for Defendant’s facility, McAleenan could properly authenticate and lay the foundation for Plaintiff’s onboarding documents with Defendant.

In a side-by-side comparison, the similarities between Plaintiff’s admitted handwritten signatures and Plaintiff’s signature on the Arbitration Agreement are apparent.

The Court finds that Plaintiff’s signature on these other documents – the authenticity of which Plaintiff does not dispute – appear nearly identical to the signature on the Arbitration Agreement. Notably, Plaintiff fails to address whether she recognizes any of these signatures -- the signature on the Arbitration Agreement and the signatures on the relatively contemporaneously executed onboarding documents. The Court finds that Defendant has established, by a preponderance of the evidence, that Plaintiff signed the Arbitration Agreement.

“A party seeking to enforce an arbitration agreement has the burden of showing FAA preemption.” (Lane v. Francis Capital Mgmt. LLC (2014) 224 Cal.App.4th 676, 687.) “The FAA applies to contracts that involve interstate commerce (9 U.S.C. §§ 1, 2), but since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement.” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) If the agreement is silent, the FAA provides for enforcement of arbitration provisions in any “‘contract evidencing a transaction involving commerce.’ (9 U.S.C. § 2.)” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277.) Accordingly, “[t]he party asserting the FAA bears the burden to show it applies by presenting evidence establishing the contract with the arbitration provision has a substantial relationship to interstate commerce[.]” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 234.)

Here, the Arbitration Agreement expressly provides that the FAA applies. (McAleenan Decl. ¶ 24, Exh. A at ¶ 7 [“Any arbitration proceeding under this agreement shall proceed under and be governed by the Federal Arbitration Act (‘FAA’) because both I and the Company are engaged in interstate commerce. To the extent they are not contrary to the FAA, the procedures of the California Arbitration Act (‘Act’) shall also apply.”].) The Arbitration Agreement clearly incorporates the FAA and specifies that the agreement is governed by the FAA. (Davis, supra, 84 Cal.App.5th at p.963.)

Accordingly, the FAA applies to the Arbitration Agreement and will preempt the California Arbitration Act to the extent that the California Arbitration Act is inconsistent.

1. I and Long Beach Healthcare, LLC (Evergreen) agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my application for employment and/or employment by the Company. Such disputes include, but are not limited to, claims I might bring against the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, any individual claims under the California Private Attorneys General Act (“PAGA”), and torts such as invasion of privacy, assault and battery, or defamation. Such disputes also include claims that the Company might bring against me such as, for example, theft of money or trade secrets, breach of a confidentiality agreement, or breach of a contract.

2. The only exceptions to binding arbitration shall be for claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits or other forms of compensation under the California Workers’ Compensation Act, claims for benefits brought before the Employment Development Department, individual claims for wages brought before the California Labor Commissioner, or other claims that are not subject to arbitration under law, including but not limited to claims for sexual harassment and/or sexual assault brought under state or federal law unless I voluntarily elect to submit such claims to arbitration. Moreover, nothing herein shall prevent me from filing a charge or complaint with the United States Equal Employment Opportunity Commission, the California Civil Rights Department, or any local agency that allows me to file an administrative charge or complaint. Once the agency’s proceedings are completed, however, if wish to pursue the matter further, I understand that I must do so under this Agreement.

Here, Plaintiff’s claims in the Class Action complaint and the PAGA Action complaint each arise from Plaintiff’s employment relationship with Defendant Partners. (Class Action Complaint ¶ 2; PAGA Action Complaint ¶ 4.) Thus, all of Plaintiff’s claims in the Class Action complaint and PAGA Action complaint are subject to the Arbitration Agreement.

“Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges.” (Baker, supra, 13 Cal.App.5th at p.1160.)

“California courts analyze unconscionability as having a procedural and a substantive element.” (Kinney v. United Healthcare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329.) “[B]oth elements must be present before a contract or contract provision is rendered unenforceable on grounds of unconscionability.” (Ibid.) The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) It consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” (Ibid.) Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree. (Armendariz v. Found Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114.) “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. [Citations.] 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.) “The party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 247.)

“ ‘Procedural unconscionability’ concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] It focuses on factors of oppression and surprise. (Ibid.)” (Kinney, supra, 70 Cal.App.4th at p.1329.) “ ‘ “ ‘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.’ ” ’ ” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126.) “ ‘[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.’ ” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244.)

Plaintiff asserts that the Arbitration Agreement is procedurally unconscionable because (1) the Arbitration Agreement was in English, and Plaintiff is a Spanish speaker who has an extremely limited understanding of English, and (2) it is an adhesion contract.

Plaintiff states that “[she] speak[s] Spanish, and, while [Plaintiff] understand[s] and know[s] some individual words in English, [she] cannot communicate in English in any substantial way.” (Armenta Decl. ¶ 3.) Plaintiff provides no clarity as to what she means in her claim that she is unable to communicate in English in “any substantial way.” Nor is it clear how limited her English understanding is. This is critical as the moving papers provide substantial proof that Plaintiff has a clear understanding of at least reading and writing in English if not more.

Plaintiff’s onboarding documents are fully in English and Plaintiff correctly completed all documents including what appears to be a test in English and handwritten answers to English test questions. (McAleenan Decl. ¶ 25, Exh. B.) Plaintiff also verified in her employment application that she could read, write, and speak English. (McAleenan Decl. ¶ 25, Exh. B.) Plaintiff provides no explanation as to this feat that would appear impossible for someone unable to read and write English. Thus, the evidentiary record shows that Plaintiff could have read and understood the Arbitration Agreement in English if she chose to.

Regardless, even presuming that Plaintiff could not comprehend the Arbitration Agreement, Plaintiff could have had it explained to her. (McAleenan Decl. ¶ 21.) Nor does it appear that Plaintiff was rushed into signing the Arbitration Agreement as she signed it a month after receiving it. (McAleenan Decl. ¶¶ 20, 24.) Plaintiff provides no explanation as to why she could not or did not ask for the Arbitration Agreement to be explained to her by a friend or relative. Plaintiff’s claimed and unsupported inability to read the agreement is not a basis for denying arbitration.

“[Plaintiff’s] decision to sign a document [she] could not read is not a basis for avoiding an arbitration agreement.” (Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519.) “‘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.’” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1215 [internal citation omitted].) “It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it.” (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal. App. 4th 158, 163.) Generally, “one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him.” (Id.) “[T]he mere fact that a contract term is not read or understood by the non-drafting party or that the drafting party occupies a superior bargaining position will not authorize a court to refuse to enforce the contract.” (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)

The term adhesion contract “ ‘signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’ [Citation.]” (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817.)

Here, the Arbitration Agreement was a condition of employment. (See Braud Decl., ¶ 4, Exhibit B, p. LONG_BEACH_HC_000005 [“I understand that any and all disputes regarding my employment with the Company [at that time, Windsor], . . . are subject to the Alternative Dispute Resolution process, which includes final and binding arbitration. I also understand and agree, as a condition of employment, to submit any such disputes for resolution under that process . . ..”].) Moreover, the Arbitration Agreement was presented on a take-it-or-leave-it basis as a part of onboarding. (McAleenan Decl. ¶ 16.) Thus, Plaintiff shows that the Arbitration Agreement is an adhesion contract.

“It is well settled that adhesion contracts in the employment context, that is, those contracts offered to employees on a take-it-or-leave-it basis, typically contain some aspects of procedural unconscionability.” (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) However, “this adhesive aspect of an agreement is not dispositive.” (Ibid.) In the absence of “surprise or other sharp practices,” courts do not recognize that “adhesive” arbitration agreements establish a high degree of procedural unconscionability. (Baltazar v. Forever 21 Inc. (2016) 62 Cal.4th 1237, 1245.)

At most, the Court finds that Plaintiff shows a minimal degree of procedural unconscionability. However, “a finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915.)

“Substantive unconscionability” focuses on the terms of the agreement and whether those terms are “so one-sided as to ‘shock the conscience.’” (Kinney, supra, 70 Cal.App.4th at p.1330.)

Plaintiff contends that the Arbitration Agreement is substantively unconscionable because (1) it non-mutually includes third parties, and (2) the Arbitration Agreement contains a waiver of public injunctive relief.

Relying on Cook v. University of Southern California (2024) 102 Cal.App.5th 312, Plaintiff contends that the Arbitration Agreement is unconscionable because it limits arbitration claims to only Plaintiff while allowing Defendant’s parent companies, subsidiaries, agents, employees, etc. to bind Plaintiff to arbitration.

In Cook, the plaintiff filed suit against her employer – a University – for claims arising from her employment including race discrimination, failure to accommodate health-related time-off requests, and retaliatory harassment. (Cook, supra, 102 Cal.App.5th at p.317.) The employer moved to compel arbitration. There the arbitration agreement provided that employee “agree[d] to the resolution by arbitration of all claims, whether or not arising out of Employee's University employment, remuneration or termination, that Employee may have against the University or any of its related entities[.]” (Id. at p.317 [italics added].) The arbitration agreement further provided that it “shall survive the termination of Employee's employment, and may only be revoked or modified in a written document that expressly refers to the ‘Agreement to Arbitrate Claims’ and is signed by the President of the University.” (Ibid.) The trial court denied the defendant’s motion to compel arbitration on the grounds that the agreement was unconscionable. (Id. at pp.317-319.) The Court of Appeal affirmed concluding – in relevant part – that the arbitration agreement’s scope and duration were unconscionable. (Id. at pp.321-326.)

The Court of Appeal found that the plain language of arbitration agreement required the plaintiff to arbitrate claims that were unrelated to her employment with the defendant and all related entities. (Id. at p.321.) The Court of Appeal held that because “the arbitration agreement does not spell out any need for the broad scope and [the defendant] did not make any attempt to factually establish this need in the trial court … [the defendant] ha[d] not established a legitimate justification for the broad scope of the arbitration agreement.” (Id. at p.325.) Thus, the Court of Appeal found no error in the trial court’s conclusion that the broad scope of the arbitration agreement was unconscionable. (Ibid.)

As to duration, the Court of Appeal concluded that by requiring written permission from the President of the University to terminate the arbitration agreement, the duration was unlimited. (Id. at p.325.) Coupled with the broad scope of the arbitration agreement – i.e., the inclusion of claims unrelated to the plaintiff’s employment – and the one sided inclusion of related entities “if [the plaintiff] was ‘the victim of a botched surgery in [one of defendant’s] hospital in 15 years, her claims could be subject to the arbitration agreement.’” (Id. at p.318.) Thus, the Court of Appeal concluded that it was not error for the trial court to find that this duration coupled with the broad scope was unconscionable. (Id. at p.326.)

The agreement in Cook was demonstrably different from the Arbitration Agreement here. In Cook, “[t]he plain language of the agreement require[d] [the plaintiff] to arbitrate claims that [were] unrelated to her employment with [the defendant].” (Cook, supra, 102 Cal.App.5th at p. 321.) Moreover, the agreement in Cook had an “infinite” duration as it survived termination of the plaintiff's employment and could only be revoked in a writing signed by the plaintiff and the president of the defendant. (Id. at pp.316-318.) The Arbitration Agreement here does not include any similar language

Here, Plaintiff is required to arbitrate “all disputes that might arise out of or be related in any way to [Plaintiff’s] application for employment and/or employment by the Company. … includ[ing] claims [Plaintiff] might bring against the Company's parent, subsidiaries, affiliates, customers, or client entities as well as against owners, directors, officers, managers, employees, agents, contractors, attorneys, benefit plan administrators, and insurers of the Company or of its parent, subsidiaries, affiliates, customers, of client entities.” (McAleenan Decl. ¶ 24, Exh. A [italics added].) Thus, while it is theoretically “one-sided” to require Plaintiff to arbitrate her employment-related claims against defendant's owners, directors, etc., while not specifically requiring them – as they are not signatories – to arbitrate disputes relating to Plaintiff's employment, there does not appear to be any practical effect to this alleged one-sidedness because the Arbitration Agreement covers only Plaintiff’s employment claims.

A waiver of the right to bring a representative claim under PAGA is against public policy and unenforceable. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383 abrogated on other grounds by Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639.) “[T]he FAA does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract.” (Id. at p.360.)

Here, Plaintiff claims that there is an improper representative PAGA waiver. Plaintiff is mistaken. In relevant part the Arbitration Agreement provides that “[b]y signing below, I expressly waive the right to bring a class, collective, representative or PAGA claim (unless such waiver is prohibited by controlling law) seeking any relief on behalf of others. … To the full extent permissible under the law, I agree to waive any substantive or procedural rights that I may have to bring or participate in a PAGA action brought on a collective or non-individual basis.” (McAleenan Decl. ¶ 24, Exh. A [bold added].) By limiting the PAGA waiver to apply only to the “extent permissible under the law” and by virtue of the fact that Iskanian invalidates a waiver of Plaintiff’s representative PAGA claims, the terms of the Arbitration Agreement here necessarily do not include a waiver of PAGA representative claims. Accordingly, there is no improper representative PAGA waiver.

In opposition, Plaintiff contends that she is only bringing a non-individual PAGA claim, and therefore, there is no individual portion of a PAGA claim to first be sent to arbitration. Two recent authorities provide guidance on this issue.

In Leeper v. Shipt, Inc. (2024) 107 Cal.App.5th 1001, the plaintiff asserted a PAGA claim for various Labor Code violations against her employer. (Id. at pp.1005-1006.) The plaintiff alleged that she brought the action “ ‘on a representative, non-individual basis’ ” and only sought “ ‘non-individual’ ” remedies, including “ ‘non-individual civil penalties.’ ” (Id. at p.1006.) The employer defendant moved to compel arbitration. The trial court denied the employer’s motion on the basis that the plaintiff had not brought any individual PAGA claim which could be compelled to arbitration. (Ibid.)

The Second District Court of Appeal reversed, concluding that based on PAGA’s statutory language, “a necessary component of every PAGA action is an individual PAGA claim, and thus that [Plaintiff], having alleged a cause of action under PAGA has, as a matter of law, alleged both an individual claim and a representative claim.” (Leeper, supra, 107 Cal.App.5th at p.1008.)

In Rodriguez v. Packers Sanitation Services Ltd., LLC (2025) 330 Cal.Rptr.3d 258, the plaintiff filed a PAGA claim against his employer “acting ‘in a Representative Capacity only[.]’” (Ibid.) The employer defendant moved to compel arbitration prior to SCOTUS’s decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639. Prior to the reply, the US Supreme Court issued its ruling in Viking River Cruises. (Rodriguez, supra, 330 Cal.Rptr.3d at p.259.) The arbitration agreement provided that the FAA applied and that it exempted “other claims that are not subject to arbitration under current law.” (Id. at p.258 [italics in original].) The trial court denied arbitration on the grounds that “current law” meant the law as it stood when the parties entered the agreement – i.e., prior to Viking River Cruises – and therefore, the PAGA claim could not be compelled to arbitration under Iskanian. (Rodriguez, supra, 330 Cal.Rptr.3d at p.259.)

The Fourth District Court of Appeal “affirm[ed] the order on the ground that [the plaintiff] [wa]s not asserting individual PAGA claims …, and the trial court therefore could not have erred by failing to compel such claims to arbitration.” (Id. at p.260.) The Fourth District Court of Appeal disagreed with Leeper finding that:

In essence, Leeper decided that (1) under Labor Code section 2699, subdivision (a), an individual PAGA claim is a necessary component of a PAGA action; therefore, (2) all PAGA actions, including the complaint under consideration, included an individual PAGA claim. But the second conclusion does not follow from the first. In other words, even if we were to agree with Leeper's interpretation of Labor Code section 2699, subdivision (a)—a question we reserve for another day—just because a PAGA action must include an individual PAGA claim does not mean any particular complaint brought under the auspices of PAGA does contain one. It means that a PAGA complaint should contain an individual PAGA claim, not that it does. Plaintiffs commonly file complaints that do not conform to statutory requirements.

Here, the Court need not decide which authority to follow – i.e., Leeper or Rodriguez. Unlike Leeper and Rodriguez, Plaintiff does not allege that she is bringing the PAGA claim on a non-individual basis only. In fact, the PAGA complaint alleges that she is bringing the PAGA claim on behalf of herself individually and on behalf of other aggrieved employees. (PAGA Complaint at p.2:1-3 [“Plaintiff DULCE ARMENTA, as an aggrieved employee, and on behalf of all other aggrieved employees under the Labor Code Private Attorneys’ General Act of 2004, alleges as follows:”] [bold and italics added].) There is no distinction in the complaint before this Court that Plaintiff is seeking to assert only non-individual claims and only non-individual relief.

Because Plaintiff alleges that she is bringing the PAGA claim on behalf of herself individually and on behalf of other aggrieved employees, the individual portion of Plaintiff’s PAGA claim must be compelled to arbitration.

A provision in an employment agreement that requires arbitration and prohibits class or collective actions is enforceable under the FAA and does not run afoul of the National Labor Relations Act. (See Epic Systems Corp. v. Lewis (2018) 584 U.S. 497.) Moreover, the FAA preempts California's doctrines of public policy and unconscionability to the extent they prohibit class action waivers of an employee's un-waivable rights. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 359-360 abrogated on other grounds by Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639.) Accordingly, under the FAA, class action waivers are valid and enforceable.

Here, the Arbitration Agreement expressly provides that “[Plaintiff] expressly waive[s] the right to bring a class, collective, representative or PAGA claim (unless such waiver is prohibited by controlling law) seeking any relief on behalf of others.” (McAleenan Decl. ¶ 24, Exh. A at ¶ 1.) Plaintiff does not dispute that the Arbitration Agreement contains a waiver of class action claims. Accordingly, pursuant to the class action waiver, Plaintiff’s putative class action claims have been waived and must be dismissed.

Based on the foregoing, Defendant Long Beach Healthcare, LLC’s motion to compel arbitration is GRANTED ONLY AS TO THE INDIVIDUAL COMPONENT OF PLAINTIFF’S PAGA CLAIM.

Pursuant to the class action waiver, Plaintiff’s putative class action claims are dismissed.

The remainder of Plaintiff’s claims – specifically, the non-individual portion of Plaintiff’s PAGA claims – are STAYED for all purposes pending arbitration pursuant to Code of Civil Procedure section 1281.4. The parties are ordered to file a joint status report no later than July 9, 2025 regarding the progress of arbitration including the name of the arbitrator, the status of timely payment of arbitration fees, and the stay. The Court hereby sets a Non-Appearance Case Review for July 16, 2025, at 8:30 a.m., Department 9.

The Judicial Assistant shall give notice to Defendants, and Defendants are ordered to file proof of service of the instant order on all other parties within 5 days.

[1] Even if the Court were to consider the reply evidence – i.e., the supplemental declaration of Attorney Corina Johnson – the outcome of the instant motion would not be affected.

[2] “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.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)