Judge: Kenneth J. Medel, Case: 37-2023-00002433-CU-OE-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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CASE TITLE: CASE TYPE:

Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00002433-CU-OE-CTL HORNBURG VS PACIFICA COMPANIES LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 04/14/2023

The Court notes that Plaintiff's Counsel is using the incorrect caption for the case. Even though a new plaintiff has been substituted into the action, the caption of the case must still reflect what was originally filed: HORNBURG v. PACIFICA COMPANIES LLC Case No.

37-2023-00002433-CU-OE-CTL THIRD PARTY PLAINTIFF MINA LALLY MOTION TO INTERVENE AS CLASS AND PAGA REPRESENTATIVE IS GRANTED.

On January 19, 2023, decedent Plaintiff Kody Hornburg filed this action against his former employers, Defendants Pacifica Companies, LLC and Prospect Hospitality, LP for unpaid wages, various labor code violations and related statutory penalties. On March 22, 2023, Mr. Hornburg filed a First Amended Class Action Complaint seeking relief on an individual, class-wide and representative basis under the California Private Attorneys General Act ('PAGA').

On May 16, 2023, Plaintiff Lally filed an individual Complaint against Defendants entitled Mina Lally v. Pacifica Companies, LLC, et. al., San Diego County Superior Court Case No. 37- 2023-00020893-CU-OE-CTL (the 'Lally Action'). On July 2023, a Notice of Related Case was filed. On December 13, 2023, Plaintiff Mina Lally filed a First Amended Complaint in the Lally Action. The FAC added a Seventh Cause of Action for Civil Penalties under PAGA.

On May 30, 2023, Kody Hornburg died. On November 30, 2023, this Court designated Mr. Hornburg's minor child (Julian Saycocie) as the lawful successor in interest to his individual claims alleged in the FAC and appointed Kayla Saycocie to act as the Guardian Ad Litem. However, Mr. Hornburg's death has left the putative class and PAGA representative action without a representative.

Third Party Plaintiff Mina Lally now seeks, through this Motion, to intervene and be substituted as the new class and PAGA representative and to consolidate the related action of Mina Lally v. Pacifica Companies, LLC, et. al., San Diego County Superior Court Case Number 37-2023-00020893-CU-OE-CTL (the 'Lally Action') filed on May 16, 2023, before Mr. Hornburg's death.

Intervention When a class representative loses standing to continue in his representative capacity, any other member of the class is generally permitted to intervene in an action as each class member is entitled to a share of any recovery and have a direct and immediate interest in the outcome. (See Kagan v. Gibraltar Sav. & Loan Assn (1984) 35 Cal.3d 582, 596 [holding trial court must allow consideration of replacement class representative including 'the opportunity to amend [her] complaint, to redefine the class, or to add new individual plaintiffs, or both, in order to establish a suitable representative.']; see also, Mann v. Superior Court (1942) 53 Cal.App.2d 272, 280.) Likewise, when a PAGA representative loses standing to continue acting as a proxy on behalf of the LWDA, including through death, a court may allow intervention to substitute another person as the PAGA representative. (Hutcheson v. The Superior Court (2022) 74 Cal.App.5th 932, 940 [recognizing 'if Calendar No.: Event ID:  TENTATIVE RULINGS

3075771  27 CASE NUMBER: CASE TITLE:  HORNBURG VS PACIFICA COMPANIES LLC [E-FILE]  37-2023-00002433-CU-OE-CTL a plaintiff is determined to have lacked standing, or if a plaintiff loses standing after the complaint is filed, the plaintiff may amend the complaint to substitute a new plaintiff with standing']; Hargrove v. Legacy Healthcare, Inc. (2022) 80 Cal.App.5th 782, 789 [trial court held 'we agree that a PAGA complaint may be amended to provide for the substitution of another person as the representative plaintiff in the action' while finding doctrine inapplicable to specific instance before it].) Plaintiff Lally need only show she has a 'direct and immediate interest' in the litigation, that intervention will not enlarge the issues in the case, and the reasons for intervention outweigh any opposition by the existing parties. (Pappas v. State Coastal Conservancy (2021) 73 Cal.App.5th 310, 317 ['The moving party must '[have] an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.' This requires the moving party to show their involvement will not enlarge the issues in the action, among other things.].) The trial court may also consider judicial economy and multiplicity of suits when deciding the motion. (Id.) Plaintiff Lally has a direct and immediate interest in maintaining the Hornburg class action allegations because she is a putative class member that experienced the same wage violations as Hornburg during the same time period. Thus, she stands to gain or lose by the entry of any judgment in this matter.

Allowing Plaintiff Lally to intervene as a class representative will not enlarge the issues in the case but will, instead, keep them exactly as they were when Hornburg initiated the class action on January 19, 2023. Specifically, Plaintiff Lally's recently filed First Amended Complaint asserting a PAGA claim in the Lally Action relies upon the Original LWDA Notice and Amended LWDA Notice filed by Hornburg in this Action-thus the claims asserted by Lally and Hornburg are identical in scope and substance, effectively making them 'co-plaintiffs' in separate actions.

The issues will not be enlarged because Hornburg and Lally each worked for Defendants during the same effective time and separated from employment on the same day-July 15, 2022. Intervention is in the interests of justice as, absent intervention, there is a possibility that an entire putative class will lose any right to recovery that may have existed in the Hornburg Action solely because Mr. Hornburg died on May 30, 2023.

PAGA Plaintiff also argues that Ms. Lally should also be substituted as the representative proxy for the LWDA under the FAC's Ninth Cause of Action for Civil Penalties under PAGA. 'The purpose of PAGA is to increase the LWDA's limited enforcement capability by authorizing aggrieved employees to enforce Labor Code provisions on the agency's behalf.' (Hutcheson, supra, 74 Cal.App.5th at 935, citing Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 86.) 'An aggrieved employee who files a suit under PAGA acts as the LWDA's proxy, and represents the 'same legal right and interest as [the LWDA] in a proceeding that is designed to protect the public,' rather than to benefit the plaintiff or other private parties. (Hutcheson, 74 Cal.App.5th at 935, citing Amalgamated Transit Union, Local 1765, AFL-CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.) A representative action under PAGA is 'a type of qui tam action,' and the LWDA, as the government entity on whose behalf the plaintiff has filed suit 'is always the real party in interest.' (Id., citing Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382.) To have standing as an 'aggrieved employee,' the Labor Code only requires the individual be 'someone who was employed by the alleged violator and against whom one or more of the alleged violations was committed' – there are no additional standing requirements imposed by the statute. (See Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1121, citing Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 84-85 and Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 930 and Labor Code § 2699, subd. (c).) Pacifica objects arguing that Ms. Lally was not the party identified in the notice to the LWDA and that her claims would be time-barred. Defendant argues that this equates to an unlawful 'assignment' of a barred PAGA claim. To pursue a claim for PAGA penalties, an aggrieved employee must notify the LWDA and the employer of the specific Labor Code violations at issue. (Hutcheson, 74 Cal.App.5th at 939, citing Labor Code § 2699.3(a)(1)(A).) The employee may then file a lawsuit if the LWDA does not respond within 65 days. (Id.) A one-year statute of limitations applies to limit a PAGA representative's right to recover individual civil penalties for herself. However, 'the fact that [the plaintiff's] individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip [the plaintiff] of her standing to pursue PAGA remedies.' (Adolph, supra, 14 Cal.5th at 1121, quoting Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 927-930.) Thus, an aggrieved employee still has Calendar No.: Event ID:  TENTATIVE RULINGS

3075771  27 CASE NUMBER: CASE TITLE:  HORNBURG VS PACIFICA COMPANIES LLC [E-FILE]  37-2023-00002433-CU-OE-CTL standing to prosecute a claim in Superior Court for civil penalties under PAGA as a proxy for the LWDA even if the individual settles her individual claims (see, Kim, supra, 9 Cal.5th at 90), or her individual PAGA claims are time barred (see Johnson, supra, 66 Cal.Ap.5th at 927) or even if the individual signs an arbitration agreement compelling her individual claims to arbitration (see Adolph, supra, 14 Cal.5th at 1121).

Substituting a PAGA plaintiff to act as the proxy for the LWDA does not involve an unlawful 'assignment' of a PAGA claim. (Hutcheson, supra, 74 Cal.App.5th, at 943.) An individual is merely acting as a proxy of the LWDA (the real party in interest) and can be replaced by any other qualified 'aggrieved employee' to act as the LWDA proxy so long as they meet the minimal standing requirements. As the Hutcheson court stated, 'nothing in the statute prohibits [substitution]' of a representative plaintiff and '[w]e see no bar to [the original plaintiff], who acts as the proxy of the LWDA, substituting a qualified plaintiff to take his place as the LWDA's proxy.' (Id., at 941-942.) Thus, if both plaintiffs are 'aggrieved employees,' and both plaintiffs submitted the required notice under Labor Code section 2699.3 alleging the same general labor code violations, then it is entirely appropriate to substitute a new plaintiff as proxy for the LWDA which 'remains the real party in interest' on claims the defendants have had notice of since inception of the matter. (Id., at 941.) This is true even if the second PAGA representative filed her own notice under Labor Code section 2699.3, after the original PAGA representative filed his notice. (Id.) '[T]o conclude otherwise would create a 'hurdle [] that impede[s] the effective prosecution of representative PAGA actions,' thereby 'undermining the Legislature's objectives.'' (Hutcheson, supra, 74 Cal.App.5th at 942, citing Kim, supra, 9 Cal.5th at 87.) Plaintiff Hornburg was a qualified aggrieved employee that acted as the proxy for the LWDA when he filed the First Amended Complaint on March 22, 2023. (Chackel Decl., ¶¶ 4-10; Exs. 1-3 to the NOL.) Notably, Plaintiff Lally was likewise a qualified aggrieved employee at the time Mr. Hornburg's First Amended Complaint was filed-as they were both employed by Defendants during the same time period through July 15, 2022. (Chackel Decl., ¶¶ 4-12.) Mr. Hornburg's death did not eliminate the LWDA's interest in this lawsuit-in fact the LWDA remains the 'real party in interest' in the Ninth Cause of Action for Civil Penalties under PAGA that is now pending before this Court. Instead, the death of Mr. Hornburg merely raises the question of whether there exists another 'qualified plaintiff to take his place as the LWDA's proxy.' (Hutcheson, supra, 74 Cal.App.5th at 941-942.) Plaintiff Mina Lally clearly meets the standard for a 'qualified plaintiff' that can take Mr. Hornburg's place as the LWDA's proxy in this lawsuit.

She has standing as an 'aggrieved employee' under the PAGA statute as 'someone who was employed by the alleged violator and against whom one or more of the alleged violations was committed.' (Hutcheson, 74 Cal.App.5th at 939, citing Kim, supra, 9 Cal.5th at 83-84.) Specifically, Ms. Lally worked for both Defendants from 2016 through July 15, 2022, and alleges she was subject to the same wage violations as Mr. Hornburg. (Amended LWDA Notice, Ex. 7 to the NOL; Lally First Amended Complaint, ¶¶ 1-3, 75-91, Ex. 10 to the NOL.) Significantly, she was an 'aggrieved employee' during the same time period as Plaintiff Hornburg-through July 15, 2022, meaning she is properly deemed an 'aggrieved employee' for purposes of Hornburg's case and therefore a proper substitute into Hornburg's case because their employment spanned similar time periods. (Chackel Decl., ¶¶ 4-28; Ex. 10, Lally First Amended Complaint; Ex. 3, Hornburg First Amended Class Action Complaint; Ex. 11, Proposed Second Amended Class Action Complaint).

On September 14, 2023, Ms. Lally served an Amended LWDA Notice in conjunction with Mr. Hornburg's estate specifically joining in the identical underlying wage violations originally alleged in Mr. Hornburg's January 9, 2023, LWDA Notice (Ex. 6 to the NOL). The 65 day statutory waiting period expired on November 18, 2023 without the LWDA taking action. Therefore, Ms. Lally has been deputized to act on behalf of the LWDA.

On December 13, 2023, Plaintiff Lally filed her own First Amended Complaint in the Lally Action alleging a Seventh Cause of Action for Civil Penalties under PAGA based upon the same general facts and legal theories asserted by Mr. Hornburg in this Action. (Ex. 8 to the NOL.) Thus, Ms. Lally is clearly a 'qualified plaintiff' that can properly substitute as a new proxy for the LWDA in this Action without prejudice to Defendants who have been on notice of the PAGA claim in this matter since January 2023.

The Court also agrees with Plaintiff Lally's substitute as a proxy for the LWDA means that the class and PAGA allegations relate back to the filing of Mr. Hornburg's action.

Pending Arbitration Motion Defendants argue Plaintiff cannot intervene as a class representative (not a PAGA representative) Calendar No.: Event ID:  TENTATIVE RULINGS

3075771  27 CASE NUMBER: CASE TITLE:  HORNBURG VS PACIFICA COMPANIES LLC [E-FILE]  37-2023-00002433-CU-OE-CTL because Mr. Hornburg signed an arbitration agreement that waived the right to act as a class representative. That motion, as it relates to Mr. Hornburg's remaining individual claims, is discussed below.

However, for purposes of intervention, Ms. Lally is not bound by any purported arbitration agreement signed by decedent Hornburg. Ms. Lally's qualifications to act as a substitute class representative should not be determined based upon Mr. Hornburg's arbitration agreement. Instead, if Defendants wish to compel arbitration of Ms. Lally's class action claims under the proposed Second Amended Complaint (as the new substitute plaintiff), this ruling is without prejudice to defendant filing a separate motion to compel arbitration as to the proposed Second Amended Complaint in this matter after it is filed.

(discussed below) That motion would have to stand or fall based upon an arbitration agreement purportedly signed by Ms. Lally, not Mr. Hornburg.

THIRD PARTY PLAINTIFF MINA LALLY'S MOTION TO CONSOLIDATE RELATED CASES IS GRANTED.

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters at issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.' (Civ. Proc. Code § 1048(a).) 'The discretion granted to the court must necessarily be broad and will not be interfered with on appeal, except for an abuse thereof.' (Nat'l Elec.

Supply Co. v. Mt. Diablo Unified Sch. Dist. (1960) 187 Cal.App.2d 418, 421.) Consolidating these two actions is efficient because they are effectively the same claims brought by the same plaintiff representative (Mina Lally), using the same attorneys, against the same defendants. Thus, there is no need to have separate actions in different departments, which would require two courts to oversee the identical PAGA litigation and result in significant misuse of judicial and party resources.

Judicial economy is served, and all parties will benefit from consolidation by defending a single lawsuit in this Court rather than spend time and money conducting discovery, motion work and trials before different departments.

This action is consolidated for all purposes with the Related Action of Mina Lally v. Pacifica Companies, LLC, et. al., San Diego County Superior Court Case Number 37-2023-00020893-CU-OE-CTL.

HORNBURG v. PACIFICA COMPANIES LLC Case No. 37-2023-00002433-CU-OE-CTL is designated as the lead action. Pursuant to Rule of Court 3.350(c), any subsequent document must be filed only in the lead case. Pursuant to Rule of Court 3.350(d), all documents filed in the consolidated case must include the caption and case number of the lead case, followed by the case number of the consolidated case.

PACIFICA COMPANIES LLC's MOTION TO COMPEL ARBITRATION AS TO HORBURG'S INDIVIDUAL CLAIMS IS GRANTED.

As stated above, on May 30, 2023, Kody Hornburg died in a tragic accident. On November 30, 2023, this Court designated Mr. Hornburg's minor child (Julian Saycocie) as the lawful successor in interest to his individual claims alleged in the FAC and appointed Kayla Saycocie to act as the Guardian Ad Litem.

As to the individual claims in the FAC, the Court finds that they are compelled to arbitration.

On July 20, 2019, Plaintiff electronically signed a document entitled 'Employee Acknowledgements' wherein he voluntarily agreed waive his right to participate or bring a class proceeding and to arbitrate the claims asserted against Defendants. Id. at ¶ 15, Ex. 7. Specifically, Plaintiff agreed: 'I and Oasis agree that any legal dispute with my Worksite Employer, Oasis, or any other party that may have an employment relationship with me arising out of or in connection with my employment, application for employment, or separation from employment for which I am, was, or would be paid through Oasis will be resolved exclusively through binding arbitration by a neutral arbitrator as provided in this agreement and, to the extent not inconsistent with this agreement, under the rules o fa neutral arbitration service. The arbitrator will have the authority to grant the same remedies as a federal court (but no more), will apply the Federal Rules of Evidence and any applicable statutes of limitation, will render a reasoned, written decision based only on the evidence adduced and the law, and can grant attorney fees and costs to the prevailing party subject to applicable law. Id. With respect to his class action waiver, Plaintiff's the Arbitration Agreement provides that Plaintiff agreed that Plaintiff could only sue only in his 'individual capacity and not as a member or representative of a class.' Id. Calendar No.: Event ID:  TENTATIVE RULINGS

3075771  27 CASE NUMBER: CASE TITLE:  HORNBURG VS PACIFICA COMPANIES LLC [E-FILE]  37-2023-00002433-CU-OE-CTL Two days before he signed his Arbitration Agreement with Oasis, on July 18, 2019, on his first day of work at La Valencia Hotel, Plaintiff signed approximately thirteen onboarding documents which identify Prospect Hospitality dba La Valencia Hotel as Plaintiff's employer. Id. at ¶¶ 8, 11-19, Exhs. 3-11. In particular, Plaintiff signed: (1) an acknowledgement of receipt and compliance with Prospect Hospitality LP employee handbook; (2) an acknowledgement of receipt of the hotel's written policy against unlawful harassment; (3) IT policy; (4) an acknowledgement of receipt of the Hotel's cell phone usage policy; (5) an acknowledgement of receipt of the Hotel's employee vision statement; (6) an acknowledgement of receipt of the Hotel's standards of conduct; (7) an acknowledgement of receipt for the Hotel's Uniforms, Dress, and Grooming Standards; (8) confidentiality agreement; (9) two acknowledgements of receipt of the Hotel's meal period and rest policies; and (10) two Hotel policy documents regarding disciplinary action related to meal penalties. Shoemaker Decl. ¶¶ 4-15, Exhs. 1-11. Thus, Plaintiff knew that his worksite employer was Prospect Hospitality dba La Valencia Hotel. The wage statements received by Plaintiff identified both Oasis and Prospect Hospitality LP dba La Valencia Hotel as his employer.

Shoemaker Decl. ¶ 17, Ex. 12.

In Opposition, plaintiff argues that defendant has not properly authenticated the signature of Mr.

Hornburg on the arbitration agreement. 'The moving party can meet its initial burden by attaching to the motion or petition a copy of the arbitration agreement purporting to bear the opposing party's signature.' Gamboa v. Ne. Cmty. Clinic, 72 Cal. App. 5th 158, 165 (2021). 'The arbitration proponent must first recite verbatim, or provide a copy of, the alleged agreement.' Iyere v. Wise Auto Grp., 87 Cal. App. 5th 747, 755 (2023).

Defendant provides a declaration of Luis Torres, the PEO Systems and Project Analyst for Paychex, Inc., the company responsible for the online onboarding process. Plaintiff electronically signed the Arbitration Agreement during his employment. Mr. Torres confirms the signature on Plaintiff's Arbitration Agreement is Plaintiff's signature, explains how he arrived at such conclusion, details the various security measures employed during and after an employee's electronic onboarding, and walks through the step-by step process which led him to the conclusion that Plaintiff signed his Arbitration Agreement and entered his signature on such document, as well as numerous other documents executed during the onboarding process. Torres Decl. at ¶¶ 3- 8, 10, 15, Exhs. 1, 7. Plaintiff has not offered any contrary evidence.

Plaintiff argues Torres fails to properly authenticate Plaintiff's signature because he did not personally observe Plaintiff at a computer executing the electronic signature. The custodian of the arbitration agreement (Torres) need not be present or employed when the document was created or signed in order to authenticate the document in a company's files. Iyere, 87 Cal. App. 5th at 758-59. Rather, California Civil Code §1633.9(a), which addresses the authentication of electronic signatures, provides that the act of signing electronically can be attributed to a person 'in any manner, including showing of the efficacy of any security procedure applied to determine the person to which the electronic record or signature was attributable' and such determination is made 'from the context and surrounding circumstances at the time of its creation, execution, or adopt, including the parties agreement, if any, and otherwise as provided by law.' Cal. Civ. Code § 1633.9 (a) & (b). The burden turns on specific indicia of reliability demonstrated in the processes associated with the use of the username and password which can be supported by the content of supporting declarations of those familiar with the processes relevant to the creation of the electronic signature. Espejo v. S. California Permanente Med. Grp., 246 Cal. App. 4th 1047,1062 (2016) (HR declaration that provided details regarding the security precautions and steps of the signing applicant sufficient to establish electronic signature was properly authenticated); see also Smith v. Rent-A-Ctr., Inc., 2019 WL 1294443, at *5 (E.D. Cal. 2019) (human resources declaration authenticated electronically signed arbitration agreement where onboarding portal required each new employee to create unique pin number to which the employee only had access, such login was required to view and sign onboarding documents).

Plaintiff argues that he agreement is unconscionable. Procedural and substantive unconscionability must both be present for a court to exercise its discretion to refuse to enforce an arbitration provision under the doctrine of unconscionability. (See Armendariz v. Foundation Health Psychcare Services, 24 Cal.4th 83, 114 (2000).) The two types of unconscionability are evaluated on a sliding scale whereby ''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.'' Plaintiffs bear the 'burden to prove both procedural and substantive unconscionability.' Crippen v. Central Valley RV Outlet (2004) Calendar No.: Event ID:  TENTATIVE RULINGS

3075771  27 CASE NUMBER: CASE TITLE:  HORNBURG VS PACIFICA COMPANIES LLC [E-FILE]  37-2023-00002433-CU-OE-CTL 124 Cal.App.4th 1159, 1165.

Arbitration agreements which are mandatory conditions of employment are valid and enforceable. The Ninth Circuit recently held mandatory arbitration agreements are permissible by law as a condition of employment under the FAA, affirmatively striking down a legislative attempt to prohibit pre-dispute employment arbitration agreements. Chamber of Com. of the United States of Am. v. Bonta, 62 F.4th 473, 478 (9th Cir. 2023). This is consistent with longstanding California precedent. See, Lagatree v. Luce, Forward, Hamilton & Scripps, LLP, 74 Cal. App. 4th 1105, 1122–23 (2000); Serpa v. California Surety Investigations, Inc., 215 Cal. App. 4th 695, 704 (2013); see also Roman v. Superior Court, 172 Cal. App. 4th 1462, 1470–71 (2009) ('whatever procedural unfairness is inherent in an adhesion agreement in the employment context, it [is] limited [when] [t]he arbitration provision was not buried in a lengthy employment agreement'); Valdez v. Terminix Inter'l Co. Ltd P'ship, 2015 WL 4342867, *4 (C.D.

Cal. July 14, 2015) ('the mere fact that an employment contract is drafted by an employer and may be nonnegotiable likely does not suffice to make it unconscionable.') (reversed in part on other grounds by Valdez v. Terminix Inter'l Co. Ltd P'ship, Fed Appx. 592 (9th Cir. 2017)).

No evidence of coercion, duress or surprise is presented. The Arbitration Agreement is stated in the third, and largest, of five paragraphs in the one page Employee Acknowledgments and is in the same (and easily readable) font as the other paragraphs The entirety of the third paragraph solely addresses the terms and rules applicable to the agreement to arbitrate. Rather than providing pages of legal-ease, the Arbitration Agreement consists of a single, easy to read stand-alone document. Torres Decl., Ex. 7.

As to substance, plaintiff argues the Arbitration Agreement is substantively unconscionable because it does not reference the specific rules or procedures of a particular arbitration service. The Arbitration Agreement specifically provides that the arbitrator may provide all remedies available in court and must follow the Federal Rules of Evidence. The Arbitration Agreement's silence as to the specific discovery limitations does not support a finding of substantive unconscionability. Sanchez v. W. Pizza Enterprises, Inc., 172 Cal. App. 4th 154, 177, (2009), citing Armendariz, 24 Cal.4th at 106-107.

Plaintiff argues the Arbitration Agreement is not mutual. The Arbitration Agreement provides that any claims 'arising out of or in connection with [Plaintiff's] employment'...will be resolved exclusively through binding arbitration[.]' Torres Decl., Ex. 7. There is no language that the agreement would not apply to defendants.

Plaintiff also concede that Mr. Hornburg's PAGA claims do not survive his death. Thus, Mr. Hornburg's individual claims do not survive. There are no PAGA claims asserted by Mr. Hornburg. (Ms. Lally as intervenor is assuming PAGA claims.) The Court GRANTS Plaintiffs Leave to File a Second Amended Complaint consistent with the above ruling.

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