Judge: Linda S. Marks, Case: 2021-01232498, Date: 2022-12-12 Tentative Ruling

1. Motion to Compel Arbitration filed by Diamond Resorts International Marketing, Inc. on 8/9/22
2. Status Conference

Defendant Diamond Resorts International Marketing, Inc.’s (“Defendant”) unopposed Motion to Compel Arbitration is GRANTED except as to Plaintiff’s representative PAGA claim.

In compelling arbitration, “the moving party bears the burden of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165; Cal. Rules of Court, rule 3.1330.) “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.” (Ibid. [internal citations omitted].) “If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.” (Ibid.)

Here, Defendant satisfied its burden to compel arbitration, except as to Plaintiff’s representative PAGA claim.

Defendant provided the Mutual Binding Arbitration Agreement between Plaintiff Robert Kasprzyk and Defendant Diamond Resorts International Marketing, Inc. (ROA # 57, Declaration of Mollie Jones, ¶ 4, Ex. A) Defendant established the Arbitration Agreement bears Plaintiff’s signature and Plaintiff does not contest that he signed the Arbitration Agreement presented.

The Arbitration Agreement provides a long list of claims that are covered under the Arbitration Agreement, including those “that have arisen or may arise between [the employee] and the Company, including without limitation any dispute arising out of or related to [the employee’s] application for employment, employment, and/or separation of employment with the Company and survives after the employment relationship terminates.” As relevant here, the Arbitration Agreement expressly includes “claims based upon or related to employment discrimination, harassment, retaliation, defamation (including post-employment defamation or retaliation), breach of a contract or covenant, fraud, negligence, violation of public policy, emotional distress, breach of fiduciary duty, trade secrets, unfair competition, wages, bonuses, commissions or other compensation or monies claimed to be owed, vacation or sick pay, meal and rest periods, wrongful termination, tort claims, equitable claims, and all statutory and common law claims under state, local or federal law, unless specifically excluded below.”

Plaintiff’s representative PAGA claim is not subject to arbitration pursuant to the terms of the Arbitration Agreement and because the state is an interested party in the representative PAGA claim as “[r]elief under PAGA was designed primarily to benefit the general public, not the party bringing the action.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.)

The Arbitration Agreement contains a class action waiver provision but this provision is unenforceable since public policy mandates that an employee cannot waive their right to bring a representative PAGA claim. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, abrogated by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 on other grounds; Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1924–1925, reh’g denied (U.S., Aug. 22, 2022, No. 20-1573) 2022 WL 3580311 [“The agreement between Viking and Moriana purported to waive ‘representative’ PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner.”].)

The representative PAGA claim cannot be arbitrated and under California authority the claim should not be dismissed because individual PAGA may be pursued separate from representative PAGA claims. (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 85-92; Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, reh’g denied (U.S., Aug. 22, 2022, No. 20-1573) 2022 WL 3580311; East Quincy Services Dist. v. General Accident Ins. Co. of America (2001) 88 Cal.App.4th 239, 246 [“As we repeatedly remind litigants, on questions of state law even United States Supreme Court decisions are not controlling.”].)

Tentative Ruling: Defendant Diamond Resorts International Marketing, Inc.’s (“Defendant”) unopposed Motion to Compel Arbitration is GRANTED except as to Plaintiff’s representative PAGA claim.

Defendant is to give notice.