Judge: Mark A. Young, Case: 22SMCV00712, Date: 2022-08-25 Tentative Ruling
Case Number: 22SMCV00712 Hearing Date: August 25, 2022 Dept: M
CASE: Williams v. Universal Protection Services et al.
CASE NO.: 22SMCV00712
MOTION: Petition/Motion to Compel Arbitration
SUMMARY OF RULING
Defendants Universal Protection Service LP, Universal Services of America LP, and Universal Protection Service, LLC’s motion to compel Plaintiff Lionel Williams’s claims to arbitration is GRANTED.
Legal Standard
Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) Accordingly, whether an agreement is governed by the California Arbitration Act (“CAA”) or the Federal Arbitration Act (“FAA”), courts resolve doubts about an arbitration agreement’s scope in favor of arbitration. (Moncharsh, supra, 3 Cal.4th at 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 [“California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general”].) “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” (Higgins v. Superior Crout (2006) 140 Cal.App.4th 1238, 1247.)
“Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration if the court determines that an agreement to arbitrate the controversy exists.” (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quotations omitted.) Accordingly, “when presented with a petition to compel arbitration, the court’s first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” (Ibid.) A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.) As with any other specific performance claim, “a party seeking to enforce an arbitration agreement must show the agreement’s terms are sufficiently definite to enable the court to know what it is to enforce.” (Ibid. [internal citations omitted].) “Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed.” (Ibid.) An arbitration agreement “must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, § 1368.) If uncertainty exists, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code, § 1654.)
The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) In opposing the motion, Plaintiff must prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.) “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.” (Ibid.)
EVIDENTIARY ISSUES
Plaintiff’s objections are OVERRULED.
Analysis
Valid Arbitration Agreement
Defendants assert that the instant claims are required to go to arbitration because Plaintiff signed an arbitration agreement covering their claims. As with any contract, mutual assent or consent is necessary for the formation of a valid arbitration agreement. (Civ. Code, §§ 1550, 1565.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code, § 1580.) The moving party bears the initial burden of showing the existence of an agreement to arbitrate by a preponderance of the evidence. (Mitri v. Arnel Mgmt. Co. (2007) 157 Cal.App.4th 1164, 1169 [“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.”].)
Plaintiff was hired as a security professional by Universal on or about August 9, 2018. (Grzywacz Decl., ¶ 12.) When Universal hired Plaintiff, he was provided a copy of Universal’s Arbitration Policy and Agreement (“Agreement”). The Agreement states: “To the fullest extent authorized by law, the Parties mutually agree to the resolution by binding arbitration of all claims or causes of action that the Employee may have against the Company, or the Company against Employee, which could be brought in a court of law. . ..” (Grzywacz Decl., ¶ 13, Ex. A, ¶ 3.) Plaintiff expressly accepted the terms of the Agreement by signing its acknowledgment page on August 9, 2018, at 12:10 p.m. and not opting out within 30 days as prescribed by the Agreement. (Grzywacz Decl., ¶ 13, Ex. A.)
Plaintiff contends that Defendants failed to authenticate his electronic signature. Under the Uniform Electronic Transactions Act, an electronic signature “is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Civ. Code, § 1633.9(a).) The effect of such electronic signature “is determined from the context and surrounding circumstances at the time of its creation, execution, or adoption, including the parties’ agreement.” (Civ. Code, § 1633.9(b).)
In Ruiz, the declaration seeking to authenticate the plaintiff’s electronic signature on an arbitration agreement was deemed insufficient where the declarant “summarily asserted” plaintiff electronically signed the agreement and “did not explain how she arrived at that conclusion or inferred [plaintiff] was the person who electronically signed the agreement” or that the electronic signature “was ‘the act’” of the plaintiff. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 844-845.) A supplemental declaration generally explaining the onboarding process, failed to explain that all Moss Bros. employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements; how an electronic signature in the name of “Ernesto Zamora Ruiz” could only have been placed on the 2011 agreement by a person using Ruiz's “unique login ID and password”; or, how the declarant otherwise ascertained how Ruiz's printed electronic signature came to be placed on the 2011 agreement. (Id., at 845.) The court concluded that in “the face of Ruiz's failure to recall electronically signing the 2011 agreement, the fact the 2011 agreement had an electronic signature on it in the name of Ruiz, and a date and time stamp for the signature, was insufficient to support a finding that the electronic signature was, in fact, ‘the act of’ Ruiz.” (Id.)
By contrast, in Espejo, the “declaration offered the critical factual connection that the declarations in Ruiz lacked,” by detailing “security precautions regarding transmission and use of an applicant’s unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line” of the agreement. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062.) The declarant, Tellez, specifically stated:
once the “Area Medical Director decides to make a physician an offer of employment, [the director] completes the employment agreement, and electronically signs the agreement, an email is generated to the applicant” with a link to the SCPMG Applicant Homepage. Access to the applicant homepage “requires the use of a private and unique username and password,” both of which are provided by phone “directly and orally to the applicant.” After logging into SCPMG's online system with this username and password, “the first thing Dr. Espejo would be required to do is re-set his password to one of his own choosing. He cannot proceed to the next page unless he re-sets his password.” At that point, according to Tellez, Espejo would have to “opt to agree to complete the employment documents using an electronic signature.” Once he agreed, he would be directed to the portion of the Applicant Homepage containing the four hyperlinks to his employment agreement, the DRP, the R&R, and a benefits handbook. “Dr. Espejo only had access to these documents by logging in and using his unique user name and password.”
…On the signature page of the employment agreement Dr. Espejo was prompted to either accept or decline the employment agreement.” If he accepted, “he was prompted to complete his name as he would sign it. Whatever name he typed into this entry is what populated on the signature line of the contract.” “Once that information was input and accepted by Dr. Espejo, then the employment agreement was finalized, including his name, date, time, and the IP address where Dr. Espejo electronically signed the agreement.” Tellez then outlined the same process with respect to the DRP. She stated that the “name Jay Baniaga Espejo could have only been placed on the signature pages of the employment agreement and the DRP by someone using Dr. Espejo's unique user name and password.... [¶] Given this process for signing documents and protecting the privacy of the information with unique and private user names and passwords, the electronic signature was made by Dr. Espejo” to the employment agreement and the DRP at the date, time, and IP address listed on the documents. Tellez therefore concluded that the copies of the employee agreement and the DRP attached to defendants' petition were true and correct copies of the documents “electronically signed by Dr. Espejo on May 22, 2011, and kept and maintained in SCPMG's records.”
(Id. at 1053-1054.)
The instant declaration provides sufficient authentication of the onboarding process to demonstrate that the electronic signature was the act of Plaintiff. The declaration of Ms. Grzywacz sets forth: (1) her position at Universal and the basis of knowledge for the facts articulated in her declaration (Grzywacz Decl., ¶¶ 1, 6, 10-11); (2) a description of the onboarding process that new hires must complete before employment can commence (Id. at ¶¶ 6-7); (3) the security features present in connection with a new hire completing the online onboarding process, including that a potential new employee must create and use a unique username and password (Id. at ¶ 6(b)-(h)); (4) that in order to complete the electronic onboarding process, a potential new employee must complete and sign all onboarding forms including the Agreement (Id. at ¶ 6(d)); (5) that potential new employees may opt-out of the Agreement by simply checking a box (Id. at ¶ 6(e)); (6) that only a potential new employee using their correct username and unique password may electronically access and sign onboarding documents with their electronic signature (Id. at ¶ 6(d)); (7) that potential new employees who do not complete the onboarding process may not begin working for Universal (Id. at ¶ 7); (8) that the full name, date and signature will not appear on the Agreement unless the employee’s e-signature box is clicked when the document is accessed using the employee’s profile while logged into the onboarding system through the employee’s username and password (Id. at ¶ 9); and that Plaintiff was hired by Universal, completed the onboarding process, expressly accepted the terms of the Agreement by electronically signing the Agreement on August 9, 2018, at 12:10 p.m. (Id. at ¶¶ 11-13). The declaration demonstrates that only Plaintiff could have placed his electronic signature onto the Agreement using unique credentials he created. Thus, the declaration properly authenticates that the electronic signature was the act of Plaintiff.
Notably, Plaintiff contends in the memorandum that he does not remember signing this agreement. However, Plaintiff fails to provide any evidence of this fact. (Williams Decl., ¶¶ 2-3.) This further separates this case from Ruiz, where the plaintiff averred that he was unable to recall signing the agreement.
There is no reasonable dispute that the claims here fall under the scope of the broad arbitration provision. The agreement specifically outlines that the following claims are subject to arbitration:
claims for breach of any contract (written or oral, express or implied)); fraud, misrepresentation, defamation, or any other tort claims; claims for discrimination and/or harassment; claims for wrongful termination; claims for retaliation; claims for non-ERISA-covered benefits (such as vacation, bonuses, etc.); claims for wages or other compensation, penalties or reimbursement of expenses; and, claims for violation of any law, statute, regulation, ordinance or common law, including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, as amended, California’s Unruh Civil Rights Act, the Age Discrimination in Employment Act of 1967, the Older Workers’ Benefit Protection Act of 1990, the Americans with Disabilities Act, the California Fair Employment & Housing Act, the California Labor Code (including claims brought pursuant to the Private Attorneys General Act), California Wage Orders, the California Health & Safety Code, California’s Confidentiality of Medical Information Act, Health the Family and Medical Leave Act, the Moore-Brown-Roberti Family Rights Act/California Family Care and Medical Leave Law, the Consolidated Omnibus Budget Reconciliation Act of 1985, the Fair Labor Standards Act, and any other applicable federal, state, or local laws relating to discrimination in employment and/or wage and hour laws, whether currently in force or enacted hereafter.
(Emphasis Added.)
This broad clause would apply to the claims at hand. On May 18, 2022, Plaintiff filed his Complaint alleging 14 causes of action primarily arising from gender and race discrimination experienced during the course of employment. (Compl., ¶¶ 7-8, 44, 55, 78, 180.) The Complaint’s causes of action specifically regard violations of Labor Code sections, FEHA discrimination, FEHA retaliation, and wrongful termination among other covered claims. Accordingly, the Court finds that there is an arbitration agreement between the parties that cover the claims.
FAA Applies to the Agreement
Plaintiff further argues that his wage and hour claims are not arbitrable because his employment relationship did not involve interstate commerce. Arbitration agreements included in contracts evidencing a transaction involving interstate commerce “shall be valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) Interstate commerce is defined as “commerce among several states” and required for the application of the FAA. (9 USC § 1.)
The question of whether federal law governs an arbitration agreement is a question of law involving the interpretation of statutes and the contract with no extrinsic evidence. (Rodriguez v. Am. Techs., Inc. (2006) 136 Cal.App.4th 110, 117.) “In accordance with choice-of-law principles, the parties may limit the trial court’s authority to stay or deny arbitration under the CAA by adopting the more restrictive procedural provisions of the FAA.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157.)
To give effect to the intent of Congress in enacting the FAA, courts broadly construe the term “involving commerce.” (Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 268.) The FAA applies to arbitration agreements if the economic activity at issue, when considered in the aggregate, bears on interstate commerce in a substantial way, even if the particular conduct of the parties does not itself affect interstate commerce. (Citizens Bank v. Alafabco, Inc. (2003) 539 U.S In deciding FAA coverage, “[the court] must broadly construe the phrase ‘evidencing a transaction involving commerce,’ because the FAA ‘embodies Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause…’ In determining whether the employment agreement involved interstate commerce, the parties’ subjective intent is not the determining factor.” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1286 [referencing 9 U.S.C. § 2].) . 52, 56-57.) For example, in Khalatian v. Prime Time Shuttle, Inc. (2015) 327 Cal.App.4th 651, the court held that the arbitration agreement regarding plaintiff’s employment, driving shuttles only in California, involved interstate commerce because “the passengers using the employer’s service often traveled from other states[ ] [and] passengers purchased package deals on the Internet which included hotel accommodations, airfare, and vouchers for free airport transportation which the customers used to board the employer’s airport shuttles.” (Id. at pp. 657-658.)
First, the agreement provides that “The interpretation and enforceability of this Agreement shall be governed by the Federal Arbitration Act.” Second, Defendants demonstrate that the contract affects interstate commerce under the broad definition provided by caselaw. Universal provides security professional services in multiple states for various types of properties, including but not limited to airports, retail centers, residential communities, office buildings, and distribution/manufacturing facilities. Grzywacz Decl., ¶ 4.) Universal provides services to both California and non-California residents. (Id.) Critically, Universal regularly purchases goods and services from firms located outside of the state. (Id.) Since Universal purchases goods from firms located outside of California, Plaintiff’s employment with Universal “involves” interstate commerce. Accordingly, the FAA applies and preempts substantive California law that would limit arbitration agreements, such as Labor Code section 229.
Procedural Unconscionability
Plaintiff argues that the agreement is unconscionable. 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 unconscionable 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.)
As to procedural unconscionability, the Court finds little surprise or oppression. The record shows that the arbitration agreement was conspicuous and Plaintiff voluntarily e-signed the agreement. At the time Plaintiff went through the onboarding process, the Agreement was a standalone document provided to each employee. (Grzywacz Decl., ¶ 6.) The onboarding system also allowed as much time as employees need to securely review and e-sign the Agreement. (Ibid.) This included an acknowledgement, as follows:
Acknowledgment of Receipt of arbitration policy and agreement
I, the undersigned employee, acknowledge that I have received a copy of the Company’s Arbitration Policy and Agreement (the “Agreement”). I understand that I am bound by the terms of this Agreement, unless I affirmatively opt-out of the Agreement within 30 days of my receipt of the Agreement by completing and returning the Election to Opt-Out of Arbitration Policy and Agreement form provided to me along with the Agreement. By my signature below, I acknowledge that I have had an opportunity to read the Agreement, that I have had an opportunity to ask questions about the Agreement, and that I understand the Agreement.
Below the acknowledgment, the agreement provides for an option between an “I agree” and “I Opt Out of Arbitration Policy.” This was a stand-alone arbitration agreement that was not a condition of employment. Thus, the Court finds little to no procedural unconscionability that would otherwise be present in employment contracts. (See Baltazar v. Forever 21 Inc. (2016) 62 Cal.4th 1237, 1246; [Courts do not recognize that “adhesive” arbitration agreements in the employment context establish a high degree of procedural unconscionability absent “surprise or other sharp practices”]; see also Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 248; [the fact that an arbitration agreement is presented as a “take-it-or-leave-it” contract of adhesion in the employment context, alone only establishes a modest degree of procedural unconscionability].)
Plaintiff asserts that Defendants failed to attach or otherwise provide the procedural rules governing the arbitration. Plaintiff fails to demonstrate that a failure to attach arbitration rules, by itself, creates procedural unconscionability. An employer’s failure to attach the arbitration rules to an arbitration agreement requires courts to scrutinize the substantive unconscionability of terms that were “artfully hidden” but does not otherwise add to the procedural unconscionability of the agreement. (E.g., Baltazar, supra, 62 Cal.4th at 1246; Nguyen, supra, 4 Cal.App.5th at 248-249.) Plaintiff does not point to any such terms, artfully hidden or otherwise.
Substantive Unconscionability
As to substantive unconscionability, an agreement is substantively unconscionable if it imposes terms that are “overly harsh,” “unduly oppressive,” “unreasonably favorable,” or “so one-sided as to ‘shock the conscience.’ ” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911.) “All of these formulations point to the central idea that unconscionability doctrine is concerned not with ‘a simple old-fashioned bad bargain’ [citation], but with terms that are ‘unreasonably favorable to the more powerful party.’ [Citation.]” (Id. at 911.) “These include ‘terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms, or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction.’ ” (Ibid.)
Plaintiff argues that the agreement is unconscionable because it contains a jury trial waiver, there are limitations to discovery, contains a unilateral termination/medication provision, requires an informal pre-arbitration dispute resolution process (providing a “free peek” at his case), and contains an improper class action waiver. The Court does not find that any of these issues provide sufficient substantive unconscionability to justify denial of the motion.
First, the purported limitations on discovery are permissible. The agreement provides the following statement on discovery during arbitration:
(c) Discovery. The Parties agree that reasonable discovery is essential to the just resolution of any claims which may be covered by this Arbitration Policy and Agreement. Accordingly, nothing in this Arbitration Policy and Agreement or in the AAA Rules shall be interpreted to limit the Parties' rights to reasonable discovery. Rather, reasonable discovery shall be allowed that is sufficient to ensure the adequate arbitration of any claims covered by this Arbitration Policy and Agreement. Generally, the Parties agree that reasonable discovery means up to three depositions per side, one set of requests for production of documents with up to 35 requests, and one set of interrogatories with up to 25 interrogatories. In the event that the Parties believe this scope of discovery is inadequate, the Parties shall meet and confer and try to reach agreement on the scope of discovery and the arbitrator shall have discretion to resolve any disagreement concerning the scope of discovery and to allow discovery determined by the arbitrator to be reasonably necessary to the just resolution of the dispute considering the streamlined nature and purpose of arbitration.
(Grzywacz Decl., Ex. A, p. 6, ¶ 6c, Emphasis added.) This “limitation” on discovery provides for more than minimal discovery” required by Armendariz. (Armendariz, supra, 24 Cal.4th at 102.)
Plaintiff also claims that the unilateral modification/termination provision is substantively unconscionable. Plaintiff only relies on outdated authority for this proposition. More recent California authority suggests that such a provision is not unconscionable due to the implied covenant of good faith and fair dealing. (Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1472; see also 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199 [
[unilateral modification provision in employee handbook was not “so one-sided as to shock the conscience” since discretionary power to modify terms of handbook with written notice carried the duty to exercise that right fairly and in good faith]; Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425 [arbitration agreement which allowed retroactive modifications was illusory and invalid].) Accordingly, the Court does not conclude that this adds to any substantive unconscionability.
As the purported “sneak peek” provision, the Second District rejected a similar argument in Serpa:
Relying on language in [Nyulassy], Serpa contends the agreement to arbitrate “requires” her to submit her dispute informally to the company before seeking arbitration and thus unfairly gives the CSI parties a “free peek” at her case. (See id. at pp. 1282–1283, 16 Cal.Rptr.3d 296 [given unilateral nature of agreement requiring only employee to arbitrate his claims, the additional requirement that employee submit claim to supervisors before seeking to arbitrate claims, while seemingly laudable effort at informal resolution, was actually just an effort to obtain a “free peek” at employee's case].) The agreement states that if the dispute “cannot be resolved through informal internal efforts, I will submit” the claim to binding arbitration. “Informal internal efforts” are not defined in the agreement or the handbook, and there is no reasonable basis to infer the agreement requires anything other than some informal notice of a grievance before proceeding to arbitration. This case is thus far different from the provisions in Nyulassy, which the court found unacceptable primarily because it was yet another employer-based mechanism in an agreement permeated by unilateral provisions favoring the employer. (Id. at p. 1283, 16 Cal.Rptr.3d 296.) Moreover, to the extent the cited language is anything other than precatory, a requirement that internal grievance procedures be exhausted before proceeding to arbitration is both reasonable and laudable in an agreement containing a mutual obligation to arbitrate. It plainly does not “shock the conscience” so as to vitiate the arbitration agreement.
(Serpa, supra, 215 Cal.App.4th at 710.)
As to the class waiver, Plaintiff also relies on outdated law set forth in Iskanian, but abrogated by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906:
We hold that the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate. This holding compels reversal in this case. 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. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any “portion” of the waiver that remains valid must still be “enforced in arbitration.” Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim. The lower courts refused to do so based on the rule that PAGA actions cannot be divided into individual and non-individual claims. Under our holding, that rule is preempted, so Viking is entitled to compel arbitration of Moriana's individual claim.
(Id. at 1924–1925.) Thus, the Court cannot conclude that that a class waiver is per se unconscionable.
Conclusion
Defendants meet their burden to demonstrate the existence of an arbitration agreement between the parties that covers Plaintiff’s claims. Plaintiff, in turn, fails to demonstrate that the agreement is unconscionable. Defendants’ motion is therefore GRANTED and the Court orders Plaintiff’s claims to arbitration, as discussed above. The entire action is STAYED pending the completion of the arbitration. (CCP § 1281.4.)