Judge: Randall J. Sherman, Case: 2022-01242308, Date: 2022-10-07 Tentative Ruling

Defendant Warmel Management Company’s Petition to Compel Individual Arbitration, Dismiss Class and PAGA Claims, and Stay Action, is granted in part and denied in part.  The motion is granted in that plaintiff’s individual claims, including his individual PAGA claims, are ordered to arbitration, and plaintiff’s class claims are dismissed without prejudice.  The motion is denied in that plaintiff’s representative PAGA claims will not be dismissed, but will be stayed pending completion of the arbitration and pending the California Supreme Court’s decision in Adolph v. Uber Technologies, Inc., Case No. S274671.  Plaintiff’s Request for Judicial Notice is denied as moot.  The Case Management Conference set for November 18, 2022 is ordered off calendar.  A Post-Arbitration Review Hearing is set for April 6, 2023 at 9:00 a.m.  The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete.

The court concludes that there exists a valid agreement to arbitrate the individual claims, including the individual PAGA claims, asserted by plaintiff and that no grounds exist to bar enforcement of the agreement.  CCP §1281.2.  The Federal Arbitration Act applies because defendant is engaged in interstate commerce, and the agreement provides that it is governed by the FAA.  Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal. App. 5th 834, 840.  The arbitration agreement applies to plaintiff’s individual claims because they arise out of plaintiff’s employment.  The class action waiver is enforceable because the agreement is subject to the Federal Arbitration Act.  Epic Systems Corp. v. Lewis (2018) 138 S. Ct. 1612, 1616; Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 364.

Plaintiff disputes that he signed the arbitration agreement.  However, defendant has shown by a preponderance of the evidence that plaintiff electronically signed the arbitration agreement and that Todd Horner had the authority to sign the agreement on defendant’s behalf.  Yergensen Dec. ¶5, Ex. A; Horner Dec. ¶¶ 3-4; Supp. Yergensen Dec. ¶¶ 4-21, Exs. C-E; Richards Dec. ¶4, Exs. G-H.  Defendant’s Paycom system shows that on May 18 and 19, 2020, plaintiff completed several steps, including setting up direct-deposits using personal bank information that defendant could not have known.  Thus, defendant has satisfied its burden as required by Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1059.

Plaintiff also argues that a Confirmation of Receipt of Employee Handbook states that the Employee Handbook supersedes all agreements, understandings and representations concerning plaintiff’s employment with defendant, but this document simply discusses plaintiff’s at-will status, and thus does not supersede an arbitration agreement that instead covers the method of resolving disputes over plaintiff’s employment with defendant.

Although the lead opinion in Viking River Cruises concluded that a plaintiff lacks standing to bring non-individual PAGA claims, and that those claims should be dismissed, that conclusion is not controlling, and the California Supreme Court is set to decide that very issue in Adolph v. Uber Technologies, Inc.  The more prudent course is for this court to await that decision (although if defendant prevails at the arbitration, that issue may be moot).

Defendant is ordered to give notice of the ruling unless notice is waived.