Judge Theresa M. Traber, Case 22STCV05062 2023-02-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV05062, Date: 2023-02-22 Tentative Ruling

Case Number: 22STCV05062 Hearing Date: February 22, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 22, 2023 TRIAL DATE: NOT SET

CASE: Jesus Nunez v. The Micro Connection Enterprises, Inc., et al.

CASE NO.: 22STCV05062

MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendants The Micro Connection Enterprises, Inc.; Personal Care Performance Group, Inc., and ESG Personnel Leasing (Doe 1)

RESPONDING PARTY(S): Plaintiff Jesus Nunez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action, filed on February 9, 2022, under the Private Attorneys General Act of 2004 for multiple wage and hour violations. Plaintiff alleges that Defendants regularly failed to pay wages owed, failed to provide meal and rest periods, and failed to provide accurate wage statements, and terminated Plaintiff in retaliation for complaining about these failures.

Defendants move to compel arbitration and stay this action.

TENTATIVE RULING:

Defendants’ motion to compel Plaintiff’s individual claims, including Plaintiff’s individual PAGA claims to binding arbitration is GRANTED

Plaintiff’s representative PAGA claims are ordered STAYED pending resolution of the arbitration, unless and until a contrary result is required by the California Supreme Court in its ruling in the pending case of Adolph v. Uber Technologies, S274671.

All hearings on this matter are placed off-calendar.

The Court sets a hearing on the status of Adolph v. Uber Technologies and of the arbitration as a whole for August 22, 2023, at 9:00 AM.

DISCUSSION:

Defendants move to compel arbitration and stay this action. Defendants also request that the Court dismiss Plaintiff’s representative claims under the Private Attorneys General Act of 2004 (PAGA).

Plaintiff’s Evidentiary Objections

Plaintiff raises numerous objections to the declarations of Robert Compani and Sally Villalobos filed in support of this motion. Plaintiff cites no law requiring the Court to rule on objections in connection with a motion to compel arbitration, as opposed to a special motion to strike under Code of Civil Procedure section 425.16, or a motion for summary judgment or adjudication under section 473(c). Further, the Court finds that Plaintiff’s evidentiary objections are without merit, attacking the weight of the statements and evidence provided rather than their admissibility. These objections are therefore OVERRULED.

Defendants’ Requests for Judicial Notice

Defendants request that the Court take judicial notice of (1) Micro Connection’s registration of Personal Care Performance Group as a fictitious business name; (2) ESG’s Statement of Information filed with the California Secretary of State on October 5, 2021; (3) ESG’s Statement of Information filed with the California Secretary of State on August 25, 2022; and (4) the statement of ESG’s current status on the California Secretary of State website as of February 8, 2023.

Defendants’ requests are GRANTED pursuant to Evidence Code section 452(c) (official acts of the executive branch of this state). In so doing, the Court takes notice only of the existence of these documents, not of the truth of their contents.

Existence of Arbitration Agreement

Under 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. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendants offer, as proof of an arbitration agreement with the Plaintiffs, a document entitled Dispute Resolution Agreement presented in English. (Declaration of Ashley N. Pham ISO Mot. Exh. A.) The document bears Plaintiff’s signature and is dated October 5, 2020. (Id.) The document states that it is an agreement between the signatory and ESG Personnel Leasing. (Id.)

Plaintiff argues that this document does not match the documents identified in other exchanges between the parties, or with the documents produced in discovery. Plaintiff also points out that the document produced contains inconsistent pagination and image quality. Plaintiff contends that these defects in the reproduction render the authenticity of the document suspect. However, Plaintiff has not provided the referenced documents for comparison. Defects in the reproduction of the agreement, without actual evidence challenging its authenticity, are not sufficient for the Court to reject Defendants’ evidence, provided under penalty of perjury, that Plaintiff contracted with ESG to arbitrate certain claims.

The Court therefore finds that there is an agreement to arbitrate between Defendant ESG and the Plaintiff.

Applicability of the FAA

The Agreement states “Any arbitration proceeding under this agreement shall proceed under and be governed by the Federal Arbitration Act (“FAA”).” (Pham Decl. Exh. A § 7.) Plaintiff does not dispute that the Federal Arbitration Act governs the arbitration agreements.

Scope of the Arbitration Agreements

Defendants contend that the scope of the Agreement covers all of Plaintiffs’ individual claims, including Plaintiff’s PAGA claims. Plaintiffs dispute this contention.

“The scope of arbitration is a matter of agreement between the parties.” (See, e.g., Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.) “A party can be compelled to arbitrate only those issues it has agreed to arbitrate.” (Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 419.)

The Agreement states, in relevant part:

1. I and ESG Personnel Leasing, Inc. (“the Company”) all subsidiaries, and contracted clients agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my 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, 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.

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 under the California Workers’ Compensation Act, claims for benefits brought before the Employment Development Department, claims for wages brought before the California Labor Commissioner, or other claims that are not subject to arbitration under law. . . .

3. My agreement to arbitrate claims against the Company includes claims I might bring against the Company’s parent, subsidiary, affiliated 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, subsidiary, affiliated or client entities. I also agree to arbitrate claims against any person or entity I allege to be a joint employer with the Company.

(Pham Decl. Exh. A. p. 1.) On its face, the Agreement appears to explicitly apply to Plaintiff’s wage and hour and employment claims. In opposition, Plaintiff contends that Defendants have not adequately established that the Agreement applies to Micro Connection and PCPG. The Court disagrees. Defendants have provided statements by the CEOs of ESG and Micro Connection stating that ESG was engaged by Micro Connection and PCPG to provide PEO services. (Declaration of Robert Compani ISO Mot. ¶ 3; Declaration of Sally Villalobos ISO Mot. ¶ 3.) Further, the Villalobos declaration states that PCPG is a fictitious name for Micro Connection, and that the two are the same entity. (Id. ¶ 2.) These statements, provided under penalty of perjury by individuals whose position as CEO provides a foundation for their knowledge, are sufficient to establish that Micro Connection and PCPG are clients of ESG, and therefore that they are explicitly covered by the terms of the Agreement.

Defendants also contend that this agreement applies to Plaintiff’s PAGA claims, and, therefore, that Plaintiff’s individual PAGA claims should be compelled to arbitration and his representative claims dismissed. Section 4 of the Agreement states:

I and the Company agree that any claims we might pursue against the other in arbitration under this agreement shall be brought in the individual capacity of myself or 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. If under applicable law a representative claim under the California Private Attorneys General Act ("'PAGA'') is found to be unwaivable and such an action is pursued in court, I and the Company agree that any such PAGA claim will be severed and stayed pending resolution of claims that are arbitrable.

(Pham Decl. Exh. A. p.1.) The Court agrees with Defendant that Plaintiff’s individual PAGA claim falls within the broad scope of the arbitration agreement in that it constitutes a dispute that arises out of and is related to Plaintiff’s employment with Defendant.

Motion to Compel Individual PAGA Claim to Arbitration and Dismiss Representative Claims

Defendants contend that, in light of the United States Supreme Court’s holding in Viking River Cruises v. Moriana, (2022) 142 S. Ct. 1906 (“Moriana”), all of Plaintiff’s claims, including the individual PAGA claim, should be compelled to arbitration, and the representative claims under PAGA dismissed. The Court must first address the threshold question of the effect of Moriana on Plaintiff’s PAGA claim.

The California Supreme Court held in its landmark decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 58 Cal.4th 380 (“Iskanian”) that where “an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law.” (Id., at pp. 383-384.) The Court also ruled that an agreement that permitted the employee to bring only “individual” PAGA claims does not permit its enforcement because splitting the individual and representative claims in this manner “does not serve the purpose of the PAGA.” (Id., at p. 384.) In addition, the Iskanian Court held that a PAGA claim lies outside the FAA’s coverage because it is an action held by the State, rather than a dispute between an employee and employer. (Id., at p. 388.) Based on this reasoning, the Court concluded that “California's public policy prohibiting waiver of PAGA claims, whose sole purpose is to vindicate the Labor and Workforce Development Agency's interest in enforcing the Labor Code, does not interfere with the FAA's goal of promoting arbitration as a forum for private dispute resolution.” (Id., at pp. 388-389.)

In Moriana, the U.S. Supreme Court approved the Iskanian rule that private arbitration agreements cannot effectuate “a wholesale waiver of PAGA claims,” holding that such a state rule is not preempted by the FAA. (Moriana, at p. 1925.) In so doing, the U.S. Supreme Court held that “the FAA does not require courts to enforce contractual waivers of substantive rights and remedies.” (Id., at p. 1919.) It also resisted the employer’s contention that a state rule invalidating contractual bans on representative PAGA actions should be treated the same as state nullifications of class-action prohibitions, which the high court had held to be preempted by the FAA in AT&T Mobility LLC v. Concepcion (2011) 131 S. Ct. 1740. Instead, the Moriana Court held that a representative PAGA action litigated by an aggrieved employee on behalf of the State was significantly different from a class action where a plaintiff prosecuted the individual claims of absent class members. (Id., at pp. 1920-1921.) It also dismissed the notion that allowing arbitration of representative actions was necessarily contrary to the “bi-lateral” nature of arbitrations and, thus, incompatible with the FAA. (Id., at pp. 1921-1923.) Accordingly, the Court ruled that the FAA does not preempt state laws, like the holding in Iskanian, that invalidate contractual prohibitions on arbitrating PAGA representative claims. (Id.)

The Moriana Court next addressed what it described as the secondary Iskanian rule and found it to be preempted by FAA “insofar as it precludes the division of PAGA actions into individual and non-individual claims through an agreement to arbitration.” (Moriana, at p. 1924.) The Court’s analysis was based principally on its interpretation of PAGA’s standing and claim joinder rules. (Id. at pp. 1923-1924.) The Court observed that PAGA “permits ‘aggrieved employees’ to use the Labor Code violations they personally suffered as a basis to join to the action any claims that could have been raised by the State in an enforcement proceeding.” (Id., at p. 1923.) The Moriana Court concluded that “Iskanian’s secondary rule prohibits parties from contracting around this joinder device because it invalidates agreements to arbitrate only ‘individual PAGA claims for Labor Code violations that an employee suffered.’” (Id.) It reasoned that Iskanian’s “prohibition on contractual division of PAGA actions into constituent claims unduly circumscribes the freedom of parties to determine ‘the issues subject to arbitration’ and ‘the rules by which they will arbitrate,’ and does so in a way that violates the fundamental principle that ‘arbitration is a matter of consent.’” (Id.) Therefore, the Moriana Court concluded, “state law cannot condition the enforceability of an arbitration agreement on the availability of a procedural mechanism that would permit a party to expand the scope of the arbitration by introducing claims that the parties did not jointly agree to arbitrate.” (Id.)

As a bottom line, then, Moriana holds that an employee who has entered into an enforceable arbitration agreement may be compelled to arbitrate his “individual” PAGA claims, that is, those arising from Labor Code violations suffered by the employee, rather than other aggrieved parties. The question of whether such a result should follow a judicial refusal to enforce a waiver of representative PAGA claims involves analysis of the contract’s severability provision, if any. (Id., at p. 1925.)

Applying Moriana’s holding here, the Court must determine: (1) whether the parties’ agreement effectuates a “wholesale waiver” of representative PAGA claims and, thus, is unenforceable as contrary to California public policy; and (2) if so, whether the agreement’s severability clause permits arbitration of Plaintiff’s “individual” PAGA claim. If such an arbitration is warranted, the final question is what becomes of the non-individual claims of other aggrieved employees.”

The answers to the first two question are clear from the language of the arbitration agreement. The arbitration clause limits Plaintiff’s ability to pursue claims against Defendant to those brought in his individual capacity, disallows any consolidation or joinder of the claims of other claimants with Plaintiff’s claims, and bars Plaintiff from bringing or participating in any class or collective actions. Thus, the parties’ arbitration provision effectuates an unlawful “wholesale waiver of representative PAGA claims that is unenforceable under Iskanian and Moriana. That said, the severance clause in the arbitration agreement clearly authorizes the Court to sever this unenforceable provision and stay the PAGA claims that are not considered arbitrable under the parties’ agreement. The relevant language provides: “If under applicable law a representative claim under the California Private Attorneys General Act ("'PAGA'') is found to be unwaivable and such an action is pursued in court, I and the Company agree that any such PAGA claim will be severed and stayed pending resolution of claims that are arbitrable.” (Pham Decl. Exh. A. p.1.) The parties agreed, therefore, that where, as here, the law bars a complete waiver of representative PAGA claims, those claims will be severed and stayed pending the arbitration of the remaining claims. Applying the terms of the parties’ agreement, the Court concludes that Plaintiff’s individual PAGA claim may be compelled to arbitration, but that his representative PAGA claims should be stayed pending completion of the arbitration proceedings.

Despite the terms of the parties’ agreement, Defendant relies on Moriana to urge the Court to dismiss the representative PAGA claims. In Moriana, the U.S. Supreme Court ruled that the resolution of Plaintiff’s individual PAGA claim in arbitration would extinguish his standing to act as a representative for other aggrieved parties in a later court proceeding. As is explained below, however, this Court disagrees with the U.S. Supreme Court’s assessment of California standing law under PAGA.

Defendant argues that Plaintiff’s representative PAGA claims should be stricken or dismissed for lack of standing based on the U.S. Supreme Court’s interpretation in Moriana of standing principles under PAGA. The Moriana Court held that, after the plaintiff’s “individual” PAGA claim had been relegated to arbitration, the non-individual aspect of the PAGA action had to be dismissed based on the plaintiff’s lack of standing. The Court posited:

[A]s we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. Under PAGA's standing requirement, a plaintiff can maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. See Cal. Lab. Code Ann. §§ 2699(a), (c). When an employee's own dispute is pared away from a PAGA action, the employee is no different from a member of the general public, and PAGA does not allow such persons to maintain suit. . . . As a result, Moriana lacks statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims.

(Moriana, 142 S. Ct. at p. 1925 [Citation omitted].) In her separate concurring opinion, Justice Sotomayor noted, however, that “if this Court’s understanding of state law is wrong, California courts, in an appropriate case will have the last word.” (Id., at p. 1925.)

This Court concludes that the Moriana Court’s assessment of PAGA standing – a pure question of state law – is at odds with California Supreme Court precedent on the issue and, thus, declines to dismiss this case as was suggested by the federal court. In Kim v. Reins (2020) 9 Cal. 5^th 73 (“Kim”), the California Supreme Court addressed whether employees lose standing to bring PAGA claims if they settle and dismiss their individual claims. The Supreme Court in Kim explained that PAGA’s plain language established only two requirements for standing: (1) “the plaintiff must be an aggrieved employee” (2) “against whom one or more of the alleged violations was committed.” (Id., at pp. 83-84 [Citing Cal. Labor Code § 2699(c)].) Applying this statutory standard to the settling plaintiff, the Kim Court held that the plaintiff retained standing to sue under PAGA even after he settled his individual claims because he “was employed by Reins and alleged that he personally suffered at least one Labor Code violation on which the PAGA claim is based.” (Id., at p. 84.) Because the California Supreme Court, and not the U.S. Supreme Court, is the final arbiter of state law, this Court applies the Kim holding to evaluate Plaintiff’s standing to bring representative PAGA claims in the wake of an order compelling his “individual” PAGA claim to arbitration.

The allegations of Plaintiff’s Complaint reveal that he was employed by Defendant and claims to have suffered at least one of the asserted PAGA Labor Code violations. As a result, he satisfies the definition of an aggrieved employee with standing to pursue PAGA penalties on behalf of the state, even if his individual claims are resolved against him in arbitration. (Kim, supra, at pp. 83-84; Johnson v. Maxim Healthcare Servs., Inc. (2021) 66 Cal. App. 5th 924, 930 [relying on Kim to hold: “The fact that [Plaintiff’s] individual claim may be time-barred does not nullify the alleged Labor Code violations nor strip [Plaintiff] of her standing to pursue PAGA remedies.”]; see also Shams v. Revature LLC (N.D. Cal. August 17, 2022) __ F.Supp. 3d __, 2202 WL 3453068 at 3.) The Court therefore rejects Defendant’s request that the representative PAGA claims be dismissed for lack of standing and instead concludes that a stay of prosecution is the proper course of action.

Although neither party raises this issue, the Court notes that the California Supreme Court granted review on July 20, 2022 in Adolph v. Uber Technologies, S274671, to address whether an aggrieved employee maintains standing to pursue non-individual PAGA claims once an individual PAGA claim has been committed to a separate proceeding. As the case was fully briefed as of November 8, 2022, the Court anticipates that our Supreme Court will soon issue its opinion on this issue. Therefore, the Court will stay the prosecution of Plaintiff’s representative PAGA claims pending the resolution of the arbitration, unless the issue of standing is resolved by Adolph in a way that renders stay of this action improper.

Unconscionability

Plaintiff also opposes Defendants’ motion to compel arbitration in its entirety on the basis that the agreement is unenforceable because it is unconscionable.

1. Procedural Unconscionability

“‘To briefly recapitulate the principles of unconscionability, the doctrine has “‘both a “procedural” and a “substantive” element,’ the former focusing on ‘“oppression”’ or ‘“surprise”’ due to unequal bargaining ¿power, the latter on ‘“overly harsh”’ … or ‘“one-sided”’ results.” [Citation.] The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “‘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.’” … [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’ [Citation.]” (Citation omitted.)

“Under this approach, both the procedural and substantive elements must be met before a contract or term will be deemed unconscionable. Both, however, need not be present to the same degree. A sliding scale is applied so that ‘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.’ (Citations omitted.)

(Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 645 (bold emphasis added).)

Plaintiff argues that the agreements are procedurally unconscionable because they are contracts of adhesion. This argument presents only a minimal amount of unconscionability:

“The procedural element of the unconscionability analysis concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. [Citation.] The element focuses on oppression or surprise. [Citation.] ‘Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice.’ [Citation.] Surprise is defined as ‘“the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.”’ [Citation.]” (Citation omitted.)

Plaintiffs claim the Agreement is procedurally unconscionable because it is an adhesion contract. An adhesion contract is “a standardized contract … imposed upon the subscribing party without an opportunity to negotiate the terms.” (Citation omitted.) “The term 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.]” (Citation omitted.)

The California Supreme Court has consistently stated that “‘[t]he procedural element of an unconscionable contract generally takes the form of a contract of adhesion … .’ ” (Citations omitted.)

“Whether the challenged provision is within a contract of adhesion pertains to the oppression aspect of procedural unconscionability. A contract of adhesion is “imposed and drafted by the party of superior bargaining strength” and “relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Citations omitted.) “[A]bsent unusual circumstances, use of a contract of adhesion establishes a minimal degree of procedural unconscionability notwithstanding the availability of market alternatives.” (Citation omitted.)

(Walnut Producers of California, supra, 187 Cal.App.4th at 645-46 [bold emphasis added].) Thus, even accepting Plaintiff’s argument as true, this would establish only a minimum of procedural unconscionability. Defendants do not dispute that the agreements are contracts of adhesion because they were presented as part of the required employment documents.

Plaintiff also contends that the agreement is procedurally unconscionable because the agreement did not explain the disadvantages of arbitration. Plaintiff’s argument relies on a misapprehension of Gentry v. Superior Court (2007) 42 Cal.4th 443. In that case, our Supreme Court found that an arbitration agreement had some element of procedural unconscionability where an “Associate Issue Resolution Handbook” provided with the agreement described the advantages of electing arbitration, but did not discuss, in detail, the shortcomings of the particular arbitration agreement at issue relative to litigation. (Gentry, supra, 42 Cal.4th at 470-72.) The Gentry court did not hold that any arbitration agreement must provide an explanation of the advantages or disadvantages of arbitration. Instead, it found, on the facts presented, that there was an unfairly imbalanced portrayal of arbitration that rendered the agreement procedurally unconscionable. Here, there is no such showing.

Thus, Plaintiff has established only a minimal degree of procedural unconscionability on the basis that the contract was a contract of adhesion.

2. Substantive Unconscionability

Plaintiff argues that the agreement is substantively unconscionable. As Plaintiff has shown a minimal degree of procedural unconscionability, Plaintiff must establish an extreme level of substantive unconscionability.

“A provision is substantively unconscionable if it ‘involves contract terms that are so one-sided as to “shock the conscience,” or that impose harsh or oppressive terms.’ [Citation.] The phrases ‘harsh,’ ‘oppressive,’ and ‘shock the conscience’ are not synonymous with ‘unreasonable.’ Basing an unconscionability determination on the reasonableness of a contract provision would inject an inappropriate level of judicial subjectivity into the analysis. ¿‘With a concept as nebulous as “unconscionability” it is important that courts not be thrust in the paternalistic role of intervening to change contractual terms that the parties have agreed to merely because the court believes the terms are unreasonable. The terms must shock the conscience.’ [Citations.]”

(Walnut Producers of California v. Diamond Foods, Inc. supra, 187 Cal.App.4th at 647-48.)

Plaintiff contends that the agreement is substantively unconscionable because it fails to provide for a neutral arbitrator, fails to provide for all types of relief otherwise available in court, and does not provide for adequate discovery. Plaintiff cites no law in support of these claims, nor does Plaintiff provide any explanation for these conclusory, one-sentence assertions. Further, a cursory review of the agreement explicitly refutes all of Plaintiff’s assertions. (Pham Decl. Exh. A. §§ 6-7.) Plaintiff has therefore failed to demonstrate that the agreement is substantively unconscionable in any respect. Thus, even if the agreement is, in some respect, procedurally unconscionable, Plaintiff has not demonstrated that it should not be enforced on the basis of unconscionability.

CONCLUSION:

Accordingly, Defendants’ motion to compel Plaintiff’s individual claims, including Plaintiff’s individual PAGA claims to binding arbitration is GRANTED

All hearings on this matter are placed off-calendar.

The Court sets a hearing on the status of Adolph v. Uber Technologies and of the arbitration as a whole for August 22, 2023, at 9:00 AM.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: February 22, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.