Sarina Haley, et al. v. FF Properties, L.P., et al.

Based on the foregoing, Plaintiffs initiated this action on July 14, 2025, with the filing of the original complaint, which they purport to bring on behalf of themselves and others similarly situated. On October 15, 2025, Plaintiffs filed the operative FAC, which asserts the following causes of action: (1) failure to pay minimum wage (Lab. Code, §§ 1194, 1197, and 1197.1); (2) failure to page overtime wages (Lab. Code, §§ 510 and 1198); (3) meal break violations (Lab. Code, §§ 226.7 and 512, subd. (a)); (4) rest break violations (Lab.

Code, § 226.7); (5) failure to timely pay wages during employment (Lab. Code, §§ 204 and 210); (6) wage statement violations (Lab. Code, § 226, subd. (a)); (7) failure to timely page final wages (Lab. Code, §§ 201, 202, and 203); (8) failure to reimburse for business expenditures (Lab. Code, §§ 2800 and 2802); (9) violations of Business and Professions Code sections 17200, et 10 Defendants contend that FF Properties II LP never employed any of the Plaintiffs and that it was erroneously sued.

seq.; (10) violations of the Private Attorney General Act (“PAGA”) (Lab. Code, §§ 2698, et seq.).11

XIV. DEFENDANTS’ MOTION TO COMPEL ARBITRATION

Defendants seek an order (1) compelling Plaintiffs to arbitrate their individual claims, including Haley’s individual PAGA claim, (2) dismissing Plaintiffs’ putative class claims, and (3) staying the remaining non-individual PAGA representative claims.

A.

Legal Standard

In ruling on a motion to compel arbitration, the Court must inquire as to (1) whether there is a valid agreement to arbitrate, and (2) if so, whether the scope of the agreement covers the claims alleged. (See Howsan v. Dean Witter Reynolds (2002) 537 U.S. 79, 84.) “Under both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate. [Citations.] The threshold question requires a response because if such an agreement exists, then the court is statutorily required to order the matter to arbitration.” (Fleming v. Oliphant Financial, LLC (2023) 88 Cal.App.5th 13, 19, internal quotation marks omitted.) The agreement at issue expressly provides that it is governed by the Federal Arbitration Act (the “FAA”) and not any state arbitration law to the maximum extent permitted by law.

The moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. (See Rosenthal v. Great Western Fin’l Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal) [moving party’s burden is a preponderance of evidence].) A moving party can meet their initial burden by showing that an agreement to arbitrate the dispute exists. (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).) The burden then shifts to the resisting party to prove a ground for denial. (Rosenthal, supra, 14 Cal.4th at p. 413.)

“In determining the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236; see also Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 569 [“California policy, like federal policy, puts arbitration agreements on equal footing with other types of contracts”]; 9 U.S.C. § 2 [An arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”].)

B. Merits of the Motion

i. Existence of an Agreement

On a motion to compel arbitration, “the moving party bears the burden of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’ [Citation.]” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) “The moving party

11 The PAGA cause of action is brought by Haley only.

‘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.’ [Citation.]” (Ibid.)

Here, Defendants have provided the declaration of Jorge Farfan, a human resources director for FF Properties L.P. (Declaration of Jorge Farfan in Support of Defendants’ Motion to Compel Arbitration (“Farfan Decl.”), ¶ 1.) Farfan declares that FF Properties L.P. uses a Workday system for employees to login and sign documents. (Id., ¶¶ 2-3.) Within that system, employees can create an electronic signature and when a document is signed, the system creates an “audit trail” that records the identity of the employee who signed the document. (Id., ¶¶ 4-5.)

The declaration includes the audit trails for documents signed by all three Plaintiffs, (Exs. A-C), and signed agreements for all three Plaintiffs (Exs. D-F). Defendants have also provided the declaration of Jen Perley, another human resources director for FF Properties L.P. (Declaration of Jen Perley in Support of Defendants’ Motion to Compel Arbitration (“Perley Decl.”), ¶ 1.) That declaration attaches copies of the signed arbitration agreements found in Plaintiffs personnel files. (Id., Exs.

D-F.)

Plaintiffs maintain that Defendants have not established that Plaintiffs agreed to arbitration. They point to discrepancies between the audit trails and the signed documents and the signatures on the agreements. As to Plaintiff Navarro, Plaintiffs contend that Navarro was required to sign the arbitration agreement as part of an employee handbook and the audit trail shows only that Navarro signed the employee handbook, not the arbitration agreement specifically. (See Farfan Decl., ¶ 5, Ex. A.) Plaintiffs also point to what appears to be a discrepancy between the times Navarro signed the agreements and the times listed in the audit trail.

But, Defendants explain that the times listed on the audit trail are in Eastern Standard time, while the times listed on the signed copies of the arbitration agreement are in Pacific time because they were signed in California. (See Supplemental Declaration of Jorge Farfan in Support of Defendants’ Motion to Compel Arbitration (“Farfan Supp. Decl.”), ¶¶ 13-15.)

Navarro also declares that she never received or signed an arbitration agreement, Defendants’ management never discussed an arbitration agreement with her, and she would not have knowingly agreed to waive her right to bring claims in court. (Declaration of Sara Navarro in Support of Plaintiffs’ Opposition to Defendants’ Motion to Compel Arbitration, ¶¶ 6-7.) She states that her Workday account was accessible by others, including supervisors and managers at her workplace, who would change her Workday time entries. (Id., ¶ 5.)

But, Farfan declares that a manager can change an employee’s time records using their own Workday password and managers would not have the ability to sign a document for an employee because that is a separate module within the Workday system. (Farfan Supp. Decl., ¶ 4.) Employees are required to create their own passwords for the Workday system managers are unable to retrieve those passwords. (Id., ¶¶ 2-3.) No other person could have signed for Navarro without using her unique username and password. (Id., ¶ 5.)

The Court also notes that Navarro’s signature on the December 31, 2021 arbitration agreement is extremely similar to the signature on her declaration in support of the opposition to the instant motion. (Compare id. with Farfan Decl., Ex. D; Evid. Code, § 1417 “The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.”].)

Accordingly, the court finds that Navarro signed the agreement.

As to Plaintiff Haley, Plaintiffs repeat their arguments regarding the discrepancies in the timestamps on the audit trail as compared to the arbitration agreement itself. Haley has also provided a declaration in which she indicates that she recalls signing documents through Workday but she does not remember signing an arbitration agreement. (Declaration of Sarina Haley in Support of Opposition to Defendants’ Motion to Compel Arbitration, ¶ 7.) Again, the court finds that the time stamp discrepancies do not establish that Haley did not sign the arbitration agreement. Defendants have provided sufficient evidence to establish that Haley signed the agreement.

As to Plaintiff Lyons, Plaintiffs contend that the audit trial does not show that she signed either the arbitration agreement or the employee handbook. (See Farfan Decl., Ex. B.)12 But, in his supplemental declaration, Farfan explains that the arbitration agreement indicates that it was signed on “Dec 7, 2021 13:02 PST,” which corresponds with the signing of the “Policy Acknowledgement V3” on “12/07/2021 04:03:09 PM[,]” which corresponds to 1:03 p.m. in Pacific time. (Farfan Supp. Decl., ¶ 17, citing Farfan Decl., Ex. E.) Defendants have provided sufficient evidence to establish that Lyons signed the agreement.

ii. Enforceability by FF Properties II LP

As a rule, “‘parties can only be compelled to arbitrate when they have agreed to do so.’ [Citation.]” (Williams v. Atria Las Posas (2018) 24 Cal.App.5th 1048, 1053.) “However, both California and federal courts have recognized limited exceptions to this rule, allowing nonsignatories to an agreement containing an arbitration clause to compel arbitration of, or be compelled to arbitrate, a dispute arising within the scope of that agreement.” (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1353; see also Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513 [describing “six theories by which a nonsignatory may [compel or] be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary’”].)

Here, Defendants contend that FF Properties II LP may enforce the arbitration agreement, although not a signatory, because it is a subsidiary of FF Properties L.P., a signatory, and because Plaintiff is estopped from asserting that the agreement does not apply to FF Properties II LP. Plaintiff does not argue that FF Properties II LP cannot enforce the agreement because it is not a signatory. Accordingly, the Court finds that, to the extent the agreement is enforceable, it is enforceable by both Defendants.

iii. Unconscionability

Plaintiffs contend that the arbitration agreement is procedurally and substantively unconscionable and, therefore, unenforceable. “A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party. [Citation.]” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (OTO).) Unconscionability has both procedural and substantive elements. (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz); Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1539 (Jones).) Both must appear for a court to invalidate a contract or one of its individual terms, (Armendariz, supra, 24 Cal.4th at p. 114; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174), but 12 Lyons does not provide a declaration in support of the opposition.

they need not be present in the same degree: “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.” (Armendariz, supra, 24 Cal.4th at p. 114.) Courts may find a contract as a whole or any clause of the contract to be unconscionable. [Citation.]” (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 882.)

1. Procedural Unconscionability

Procedural unconscionability focuses on the elements of oppression and surprise. (Armendariz, supra, 24 Cal.4th at p. 114.) “Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice,” while “[s]urprise involves the extent to which the terms of the bargain are hidden in a prolix printed form drafted by a party is a superior bargaining position.” (Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 671, internal citation and quotation marks omitted.) “Circumstances showing oppression include (1) the amount of time an employee is given to consider a contract; (2) the pressure exerted on him to sign it; (3) its length and complexity; (4) his education and experience; and (5) whether he had legal assistance. [Citation.]” (Nunez v. Cycad Management LLC (2022) 77 Cal.App.5th 276, 284.)

Plaintiffs argue the agreement is one of adhesion. (See Armendariz, supra, 24 Cal.4th at p. 115 [“in the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement”].)

An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. [Citations.] Arbitration contracts imposed as a condition of employment are typically adhesive [citations], and the agreement here is no exception. The pertinent question, then, is whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required. [Citations.] Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form. [Citations.]

(OTO, supra, 8 Cal.5th at p. 126, internal quotation marks omitted.)

Here, Plaintiffs assert that they were required to sign the arbitration agreements as a condition of employment. They rely on provisions in their employment offer letters, stating, “All of our associates are offered employment contingent on their agreement to arbitrate all claims which applicable federal and state law provides may be subject to arbitration.” (See Perley Decl., ¶¶ 8-11, Exs. A-C.) Plaintiffs also contend that they lacked equal bargaining power because Defendants are large nationwide companies and that the agreements were provided as preprinted forms contained within the employee handbook and they could not negotiate the terms. In reply, Defendants do not argue that the agreement is not one of adhesion.

A contract of adhesion in the employment context adds a modest amount of procedural unconscionability and, the amount of procedurally unconscionability is increased when the fact

of an adhesion contract is combined with other issues. (See Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 248.) The Court finds that a modest degree of procedural unconscionability is present based on the requirement that Plaintiffs sign the agreement to begin employment with Defendants.

Plaintiffs also argue that the fact that the arbitration agreement was present in the employee handbook and the acknowledgement of receipt of the handbook did not mention arbitration adds to the surprise. But, the arbitration agreements require a separate signature and the agreements are headed with large bolded text stating, “Agreement to Mutual Mandatory Arbitration of Disputes[.]” (Farfan Decl., Exs. D-F.) The agreements further advise in boldfaced type, “Arbitration: Please Read Carefully[.]” (Farfan Decl., Exs.

D-F.) Additionally, in all caps, the agreements state, “BY AGREEING TO THIS BINDING MUTUAL ARBITRATION PROVISION, BOTH THE COMPANY AND I GIVE UP ALL RIGHTS TO TRIAL BY JURY.” (Farfan Decl., Exs. D-F.) All three Plaintiffs signed the arbitration agreement itself. Accordingly, the Court finds that the fact that the acknowledgement of receipt of the handbook may not have mentioned the arbitration agreement does not add procedural unconscionability.

Plaintiffs further contend that increased surprise is present here because the arbitration agreements failed to identify or make available the rules of arbitration. In Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 244, on which Plaintiffs rely, the Court of Appeal found the arbitration agreement at issue to be moderately unconscionable because the “Agreement requires Carbajal to arbitrate her claims ‘in accordance with the rules of the [AAA]’ without identifying which of AAA’s nearly 100 different sets of active rules will apply. Before requiring Carbajal to sign the Agreement, CW Painting did not provide Carbajal a copy of the rules it thought would govern, tell her where she could find a copy of the rules, offer to explain the arbitration provision, or give her an opportunity to review any rules.”

Here, the agreement provides:

The arbitration will be conducted in or near the city where I am or was last employed by the Company in accordance with the American Arbitration Association’s (“AAA”) Employment Arbitration Rules (the “Rules”). [¶] I acknowledge that I have been provided the opportunity to review the Rules or obtain a copy of them from Human Resources before signing this Acknowledgment Form, and I also understand that the Rules are available on- line in both English (at www.adr.org/employment) and Spanish (at www.adr.org/sites/default.files/Employment%20Arbitration%20Rules%2 0and%20Mediation%20Proedures%20-%20Spanish.pdf).

Plaintiffs contend that they were “forced” to go to a different source to find the arbitration rules. They also argue that, if one follows the link to the English rules, they are not taken directly to the applicable rules themselves; instead, they must click “See Rules,” which takes them to 10 hyperlinks, none of which is titled “Employment Arbitration Rules.” Plaintiffs maintain that the closest link is titled, “Employment/Workplace Arbitration Rules and Mediation Procedures[.]” But, that argument ignores that the 10 hyperlinks are also labeled with the categories “Rules,” “Fee,” “Form” and “Other” and the only link with the “Rules” label is the one titled “Employment/Workplace Arbitration Rules and Mediation Procedures[.]” Thus, finding the relevant rules using the link does not appear to be unreasonably difficult.

(See Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 691 [“There could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties—the AAA rules are available on the Internet.”].) Notably, Plaintiffs do not argue that they were rushed to complete the agreement or that they would not have the opportunity to review the rules on the Internet prior to signing.

Plaintiffs argue that the link to the Spanish language version of the rules is broken but they do not contend that any of the named Plaintiffs speak Spanish, such that they would have needed to look at the Spanish language version of the rules.

As discussed above, the Court finds a modest degree of procedural unconscionability but, the agreement is not unconscionable unless substantive unconscionability is also present.

2. Substantive Unconscionability

Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create “overly harsh” or “one-sided results”, (Armendariz, supra, 24 Cal.4th at p. 114, internal citation and quotations omitted), that is, whether they reallocate risks in an objectively unreasonable or unexpected manner, (Jones, supra, 112 Cal.App.4th at p. 1539.) “In assessing substantive unconscionability, the paramount consideration is mutuality.” (Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 241, internal citation and quotation marks omitted.) Arbitration agreements are substantively unconscionable where they lack a “modicum of bilaterality,” “without at least some reasonable justification for such onesidedness based on ‘business realities.’ ” (Armendariz, supra, 24 Cal.4th at p. 117.)

“Substantive unconscionability examines the fairness of a contract’s terms. This analysis ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party.” (OTO, supra, 8 Cal.5th at pp. 129-130, internal citation and quotations omitted.)

Plaintiffs argue that the AAA rules do not provide for a minimum level of discovery and that Defendants retained the sole authority to modify the arbitration agreement.13 But, the arbitration agreement itself provides for full discovery: “In any such arbitration, both the Company and I may conduct discovery to the same extent as would be permitted in a court of law.” (Farfan Decl., ¶¶ D-F.) The agreement further provides that “[a]ny conflict between the terms of the Rules and the terms of this Agreement shall be resolved in favor of those in this Agreement, except as necessary to make this Agreement enforceable.” (Farfan Decl., ¶¶ D-F.) Accordingly, the Court rejects Plaintiffs’ argument on this point.

13 Plaintiffs make these arguments in their section regarding procedural unconscionability but they would appear to be substantive unconscionability arguments. (See, e.g., Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1290 [mentioning that adequacy of discovery is a consideration in the context of substantive unconscionability] Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 506 [discussing discovery in the context of substantive unconscionability].)

As to the argument regarding authority to modify the agreement, Plaintiffs rely on the acknowledgement of receipt of the employee handbook, which states, “the Company reserves the right to revise, delete, and add to the provisions of this Associate Handbook. I also acknowledge that, except for the policy of at-will employment, terms and conditions of employment with the Company may be modified at the sole discretion of the Company with or without cause or notice at any time.” No such provision is contained in the arbitration agreement itself.

In Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 386, the Court of Appeal held that a modification provision contained in an employee handbook did not govern the arbitration agreement, which was contained in an appendix to the handbook. Here, similarly, the arbitration agreement is signed separately and is not governed by the modification provision in the handbook.

Plaintiffs next argue that the agreement lacks mutuality as to the parties bound by it. Specifically, they contend that the arbitration agreement provides that employees must agree that “any controversy, claim or dispute between me and the Company (and/or any of its owners, directors, officers, associates, volunteers or agents) relating to or arising out of my employment or the cessation of my employment will be submitted to final and binding arbitration as the exclusive remedy for such controversy, claim or dispute.” (See Farfan Decl., Exs. D-F.) But, Plaintiffs maintain that individuals and entities affiliated with Defendants do not need to arbitrate any claims they might have against Plaintiffs.

In Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 326-328 (Cook), the Court of Appeal found an arbitration agreement substantively unconscionable where “the agreement provides benefits to broad swaths of third party beneficiaries only in favor of USC without any showing of justification for this one-sided treatment. This confers a benefit on USC and its broadly defined ‘related entities’ that is not mutually afforded to Cook. USC does not attempt to justify this one-sidedness.

No explanation is offered as to why Cook should be required to give up the ability to ever bring claims in court against a USC employee that are unrelated to USC or her employment there.” The court reasoned, “There is no question that it is more difficult for a party to enforce an arbitration agreement against a nonsignatory than it is for a nonsignatory to enforce an arbitration agreement against a party.” (Id. at p. 327.) The court explained that the third party beneficiaries could enforce the agreement simply by showing that the agreement was intended to benefit them but for the plaintiff, a party to the agreement, to enforce the agreement against the third party beneficiaries, she would have to show that the third party beneficiaries actually accepted a benefit under the agreement. (Id. at pp. 327-328.)

Here, unlike in Cook, the claims that must be arbitrated are limited to those “relating to or arising out of my employment or the cessation of my employment[.]” (Farfan Decl., Exs. D- F.) The agreement also provides, “Possible disputes covered by the above include but are not limited to unpaid wages, breach of contract, torts, violation of public policy, discrimination, harassment, or any other employment-related claims under laws including but not limited to Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the California Fair Employment and Housing Act, the California Labor Code, and any other statutes or laws relating to an associate’s relationship with his/her employer, regardless of whether such dispute is initiated by me or the Company.

Thus, this agreement to arbitrate also applies to any and all claims that the Company may have against me, including but not limited to, claims for misappropriation of Company property, disclosure of proprietary information or trade secrets, interference with contract, trade libel,

gross negligence, or any other claim for alleged wrongful conduct or breach of the duty of loyalty by me.” (See Farfan Decl., Exs. D-F.) Similarly, Stoker v. Blue Origin, LLC (2026) 120 Cal.App.5th 91, 108, on which Plaintiffs also rely, is distinguishable because there, “the arbitration agreement [was] not limited to claims arising out of the employment relationship. Instead, it applie[d] to any claim that might arise at any time between Stoker and Blue Origin or its parent, subsidiaries, affiliates, successors or assigns, or employees of any of these entities.”

Plaintiffs also maintain that the arbitration agreement is substantively unconscionable because it contains a class action waiver that would only limit the employee’s rights. In Hasty v. American Automobile Assn. etc. (2023) 98 Cal.App.5th 1041, 1062, on which Plaintiff relies, the Court of Appeal found that the agreement before it was “one-sided because it requires the parties to bring their claims ‘in an individual capacity,’ not ‘in a private attorney general capacity,’ and prohibits class, representative, or private attorney general proceedings. These requirements can fairly be read to limit only the employee’s rights. But, as Defendants point out, class action waivers are enforceable under the FAA. (Epic Sys. Corp. v. Lewis (2018) 584 U.S. 497, 502.)

Plaintiffs further contend that the arbitration agreement contains a wholesale PAGA waiver. (See Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482, 495 (Alberto) [“Both before and after Viking River Cruises, blanket waivers of PAGA claims are unconscionable.”].)14 Although Defendants argue that Alberto is distinguishable, do not assert that the PAGA waiver does not render the agreement unconscionable; instead, they contend that the PAGA waiver is severable. The Court will discuss severability below.

Plaintiffs argue that the jury trial waiver in the agreement also render it unconscionable. But, the authority on which they rely does not support this argument. Plaintiffs cite Grafton Partners v. Superior Court (2005) 36 Cal.4th 944. That case did not involve an arbitration agreement and the Court of Appeal in that case explicitly stated “arbitration agreements are distinguishable from waivers of the right to jury trial in that they represent an agreement to avoid the judicial forum altogether.” (Id. at p. 955.)

Plaintiffs also cite Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, where the issue was that the arbitration agreement did not contain an express jury waiver but the court recognized that “[w]hen parties agree to submit their disputes arbitration they select a forum that is alternative to, and independent of, the judicial -- a forum in which, as they well know, disputes are not resolved by juries.” (Id. at pp. 713-714.)

Finally, Plaintiffs assert that the arbitration agreement improperly requires arbitration of sexual harassment claims, in violation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Notably, Plaintiffs cite no authority for this proposition and, 14 The Alberto court refers to the relatively recent United States Supreme Court opinion Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 [213 L. Ed. 2d 179, 142 S.Ct. 1906] (Viking River). As explained in Adolph v.

Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1117 (Adolph), “In [Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian)], we held that a predispute categorical waiver of the right to bring a PAGA action is unenforceable (Iskanian, supra, 59 Cal.4th at pp. 382-383) — a rule that Viking River left undisturbed (see Viking River, supra, 596 U.S. at p. ___ [142 S.Ct. at pp. 1922–1923, 1924- 1925] [the FAA does not preempt this rule]).”

in any event, they do not raise a sexual harassment claim. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or authority in support is without foundation and requires no discussion].)

The Court finds that the wholesale PAGA waiver renders the arbitration agreement somewhat substantively unconscionable.

iv. Severability

Having found modest procedural unconscionability and having found the wholesale PAGA waiver substantively unconscionable, the Court will turn to whether the PAGA waiver may be severed. The arbitration agreement provides, “If any provision of this agreement is held to be void, null, or unenforceable, such provision should be severed and the remaining portions will remain in full force and effect.”

“[W]hether to sever is within the trial court’s discretion.” (Navas v. Fresh Venture Foods, LLC (2022) 85 Cal.App.5th 626, 636-637.) “ ‘In deciding whether to sever terms rather than to preclude enforcement of the provision altogether, the overarching inquiry is whether the interests of justice would be furthered by severance; the strong preference is to sever unless the agreement is “permeated” by unconscionability.’ [Citation.] [¶] An agreement to arbitrate is considered ‘permeated’ by unconscionability where it contains more than one unconscionable provision. [Citation.] ‘Such multiple defects indicate a systematic effort to impose arbitration on [the nondrafting party] not simply as an alternative to litigation, but as an inferior forum that works to the [drafting party’s] advantage.’ [Citation.]

An arbitration agreement is also deemed ‘permeated’ by unconscionability if ‘there is no single provision a court can strike or restrict in order to remove the unconscionable taint from the agreement.’ [Citation.] If ‘the court would have to, in effect, reform the contract, not through severance or restriction, but by augmenting it with additional terms,’ the court must void the entire agreement.” (Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 292; see also Armendariz, supra, 24 Cal.4th at p. 124 [presence of more than one unconscionable provision weighs against severance].)

` Here, the court does not find that the agreement is permeated by unconscionability having found only one unconscionable provision and a modest amount of procedural unconscionability. The arbitration agreement does not refer to PAGA explicitly but it does preclude “representative” and “collective” actions in addition to “class” actions. Court hereby severs the references in the arbitration agreement to “representative” and “collective” actions. With those references severed, the Court finds the arbitration agreement enforceable.

v. Staying the Action

Finally, Plaintiffs contend that the Court should allow the PAGA claim to proceed in court regardless of the outcome of the motion. The thrust of their argument appears to be that they should not be required to wait for the arbitration to conclude to pursue penalties under PAGA. But, in Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1125, the California Supreme Court recently explained that “[w]hen an action includes arbitrable and nonarbitrable components, the resulting bifurcated proceedings are not severed from one another; rather, the court may ‘stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement.’ (9 U.S.C. § 3; see Code Civ. Proc., § 1281.4.)” Accordingly, a stay of the individual portion of the PAGA claim is appropriate.

XV. CONCLUSION

The motion to compel arbitration is GRANTED. The class claims are ordered dismissed. All individual claims, including the individual PAGA claim are ordered to arbitration. The representative PAGA claim will remain in court. This action is stayed pending the outcome of arbitration.

The Court will prepare the final order.

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