Judge: William D. Claster, Case: 21-01179958, Date: 2022-10-28 Tentative Ruling
1. Defendants South
Coast Global Medical Center, Inc. and KPC Healthcare, Inc.'s Notice of Motion
and Renewed Motion to Compel Arbitration and Dismiss Plaintiff's Complaint
ROA 152
2. Status Conference
Defendants South Coast Global Medical Center, Inc. and KPC Healthcare, Inc. move to compel arbitration of the individual portion of Plaintiff Ellen Parayno-Bell’s PAGA claim. For the reasons set forth below, this motion is GRANTED. Based on statements in Defendants’ reply brief, the representative portion of Plaintiff’s PAGA claim is STAYED pending the outcome of Adolph v. Uber Technologies, S274671. An arbitration review conference will be held in Department CX-104 on May 1, 2023 at 8:30 a.m.
Defendants’ unopposed request for judicial notice is GRANTED.
The Court DECLINES TO RULE on the parties’ evidentiary objections, which all go to matters previously decided by Judge Nakamura when this case was assigned to him. As discussed below, the Court will not revisit his ruling.
I. Court’s Prior Ruling
While the case was pending before Judge Nakamura, Defendants moved to (1) compel arbitration of all of Plaintiff’s claims except her PAGA claim on an individual basis, and (2) strike her class claims. Judge Nakamura granted the motion to compel individual arbitration, but denied the motion to strike the class claims, instead staying them. In his ruling, Judge Nakamura found that a valid agreement to arbitrate existed, that the Federal Arbitration Act applied, and that the agreement was not unconscionable or otherwise unenforceable. On February 9, 2022, the Court approved dismissal of the class action and the individual claims, thereby leaving the PAGA claim as the sole remaining cause of action.
Insofar as Plaintiff attempts to contest the existence or enforceability of the agreement or the application of the FAA based on evidence or argument available to her on the original motion, her opposition is an untimely motion for reconsideration. The Court therefore will not consider those arguments.
II. Ambiguity
Plaintiff contends the agreement does not mention PAGA, making it hopelessly ambiguous in scope in a manner that must be construed against the drafter. But Plaintiff agreed in her job application to follow Defendants’ dispute resolution process, including arbitration. (Bohn Decl., Ex. 1, at p. 6.) That agreement references “any and all disputes regarding my employment at [Defendants],” which is broad enough to cover a PAGA claim. (Ibid.)
Plaintiff points to language in Defendants’ human resources manual excluding “non-waivable statutory claims” from the dispute resolution process. She contends that at time she signed the agreement, PAGA claims weren’t waivable as a matter of law. As a result, ordering Plaintiff to arbitrate her PAGA claim would improperly rewrite the agreement to include a waiver.
The Court disagrees for two reasons. First, “[i]n general, judicial decisions apply retroactively. [Citations.] This rule applies to decisions interpreting statutes, for a judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” (Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 878 [internal quotation omitted].) Viking River Cruises’ interpretation of the FAA is an authoritative statement of what the FAA has always meant. (See Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.) Regardless of what was “non-waivable” at the time the agreement was signed, Viking River Cruises’ description of FAA preemption controls.
Second, Defendants aren’t arguing that Plaintiff has waived her right to bring a PAGA claim. Rather, they’re arguing that she can bring a PAGA claim—it just has to be individually and before an arbitrator, rather than individually, representative, and before a court. Plaintiff argues, correctly, that nothing in the agreement says a PAGA claim can be split into individual and representative components. But Viking River Cruises requires as much in cases where the FAA applies. Plaintiff is also correct that unlike Viking River Cruises, there’s no savings clause in the agreement. But the savings clause only mattered in Viking River Cruises because that agreement contained an unenforceable PAGA waiver. Here, with no waiver, the Court will simply split the PAGA claim as required by Viking River Cruises and order the individual portion to arbitration.
III. Waiver of Ability to Compel Arbitration
Plaintiff argues Defendants have waived their ability to bring this motion by failing to do what the employer in Viking River Cruises did: file a motion it is beyond dispute they would lose in this Court, the Court of Appeal, and the California Supreme Court under then-existing law, then file a petition for certiorari in the exceedingly unlikely hope the United States Supreme Court would grant certiorari and reverse. The Court is aware of no authority, and Plaintiff points to none, holding that a party must go through a very likely futile series of years of appeals to avoid waiving the right to compel arbitration when there is no such right under existing law. It suffices for the Court to note that before Viking River Cruises, Defendants could not have moved to compel arbitration, and that they filed this motion less than two months after that decision was handed down. There has been no waiver.
IV. Further Proceedings
In their notice of motion, Defendants asked the Court to dismiss the representative portion of Plaintiff’s PAGA claim as the United States Supreme Court did in Viking River Cruises. In reply, Defendants state that as late as October 17, they offered to stipulate to stay the representative portion pending the outcome of Adolph, supra, provided Plaintiff agrees to arbitrate the individual portion of her PAGA claim. (Supp. Fischbein Decl. ¶ 12.) Given Defendant’s offer, the representative portion of Plaintiff’s claim is stayed pending Adolph while the individual portion proceeds in arbitration.