AFFONSO v. Z GOLF FOOD & BEVERAGE SERVS., LLC, ET AL.

Health and Safety Code section 1278.5 permits a civil plaintiff to bring an action for whistleblower retaliation under its subdivision (g). (Shaw v. Superior Court (2017) 2 Cal.5th 983, 996 (Shaw).) The statute does not state a limitations period applicable to this action. Code of Civil Procedure section 338, subdivision (a), providing a three-year statute of limitations generally for actions founded upon a liability described in a statute, applies. Plaintiff was terminated from employment with Defendants on March 17, 2022. He filed the instant action on February 20, 2025. His claim is timely.

Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271 (Melamed) offers no relevant, citable holding. Though the Second District Court of Appeal muses at pages 1287-1288 that a one-year statute of limitations under Code of Civil Procedure section 340, relating to an action upon a statute for a penalty, “may” be appropriate for Health and Safety Code section 1278.5, subdivision (g) claims it also states “we need not, and do not, decide which limitations period is appropriate.” A case is not valid authority for a point not decided. (In re Chavez (2003) 30 Cal.4th 653, 656.)

The court declines to independently follow Melamed’s reasoning. While Health and Safety Code section 1278.5, subdivision (b)(3) states that there is a mandatory civil penalty for violations of the section, Shaw spells out that Health and Safety Code section 1278.5 has “three distinct remedial provisions” for violations: one creating a civil penalty, one creating a misdemeanor, and one creating a civil judicial action. (Shaw, supra, 2 Cal.5th at p. 996.) Defendants’ argument inspired by Melamed that a civil judicial action under one distinct provision must effectively also be an action for a penalty under a different distinct provision does not follow any more than an argument that a civil judicial action also seeks to convict the defendant of a criminal misdemeanor would.

The “three distinct provisions” are distinctly enforced through administrative processes for the civil penalty, criminal court processes for the misdemeanor, and civil court processes for the civil action.

The court finds that the three-year statute of limitations of Code of Civil Procedure section 338, subdivision (a) applies to Plaintiff’s cause of action for violation of Health and Safety Code section 1278.5. Plaintiff’s claim is therefore timely. Defendants’ motion is denied.

AFFONSO v. Z GOLF FOOD & BEVERAGE SERVS., LLC, ET AL. Case No. CU25-04751

Petition to Compel Arbitration

TENTATIVE RULING

Defendant’s petition to compel arbitration of Plaintiffs’ “individual” PAGA claims is granted.

Defendant establishes that the parties entered into an arbitration agreement. (Decl. of Sirios, Exhs. A-B.) This agreement requires the parties to “utilize binding arbitration as

the exclusive means to resolve all disputes that may arise between the Employer and Employee.” (Id., Exhs. A-B, § 2.) Rather than denying that the parties entered into the agreement, Plaintiffs claim, without presenting any evidence, that the agreement is unenforceable pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act and because it is unconscionable.

The EFAA has no applicability to this case. Neither plaintiff has alleged a sexual harassment or sexual assault claim as part of this action. Plaintiffs fail to cite any legal authority that permits application of the EFAA to invalidate an arbitration agreement in a case based on allegations of sexual harassment or sexual assault made in a completely different case.

Plaintiffs have not established that the entire agreement should be unenforceable.

The court agrees that there is some limited procedural unconscionability. Contrary to Defendant’s averment that employees “are able to be hired without signing the Arbitration Agreement” and are given “the option to sign or not” (Decl. of Sirios, ¶ 6), the agreement itself states that Defendant “has adopted this mandatory Arbitration Policy and Agreement as a condition of employment” (emphasis added) and “[b]y continuing employment with the Company, you agree to the terms of this Agreement” [italics in original]. (Id. at Exhs.

A-B, p. 1.) The agreement appears to have been presented on a take-it-or-leave-it basis, with no ability or opportunity to negotiate. (See, id. at ¶ 5 [an employee registers and logs into a third party “platform” to electronically sign forms].) But, in the absence of any other evidence of coercion or surprise, the inherent economic pressure on the employee to accept arbitration as a condition of employment “is a fairly low level of procedural unconscionability.” (Alvarez v. Altamed Health Servs.

Corp. (2021) 60 Cal.App.5th 572, 591.) And, although the agreement did not provide Plaintiffs with the rules of any arbitration, Plaintiffs’ challenge to the enforcement of the agreement has nothing to do with any rules of which they had been unaware. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246; Nguyen v. Applied Med. Res. Corp. (2016) 4 Cal.App.5th 232, 248.)

In general, an agreement to arbitrate FEHA rights is lawful if it provides for neutral arbitrators, permits more than minimal discovery, requires a written award, allows for all of the types of relief that would otherwise be available in court, and does not require employees to pay unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. (Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 102.) “When a mandatory arbitration agreement satisfies the Armendariz requirements, then a petition to compel arbitration of a FEHA claim is properly granted.” (Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 687.)

Rather than claim that any Armendariz factor is not satisfied, Plaintiffs argue that the agreement is substantively unconscionable because: 1) it does not permit judicial review, 2) it does not explain how to initiate arbitration, 3) the scope of the agreement extends beyond the employment relationship, 4) the duration of the agreement extends

indefinitely beyond termination of the employment relationship, 5) it lacks mutuality because it applies to nonsignatory “related entities”, 6) it contains a waiver of administrative hearings, and 7) in contains a PAGA and Class Action waiver that is contrary to California law. However, with the exception of lack of mutuality, none of these claims are so one-sided or unfair as to render the agreement (or that specific provision) unenforceable.

The parties’ arbitration agreement does not provide for or mention judicial review of the arbitration award in any way. (Decl. of Sirios, Exhs. A-B.) But, “the fact that an arbitration agreement does not explicitly provide for judicial review is no basis for invalidating it.” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1075, fn. 1.) Parties are entitled to limited review of the arbitration award to confirm, correct, or vacate the award (Code Civ. Proc. §§ 1285, et seq.) and all that is required is a written arbitration award so that this review may be successfully accomplished (Armendariz, supra, 24 Cal.4th at 107). The agreement adequately provides for “the arbitrator’s written reasoned opinion.” (Decl. of Sirios, Exhs. A-B, § 7.)

When there is a high degree of procedural unconscionability, a failure to mention how to bring a dispute to arbitration or how to find such information may suffice to make the agreement substantively unconscionable. (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 130- 131.) Considering that this case presents a relatively low degree of unconscionability and does not purport to replace a process that is easier to initiate, the fact that the agreement does not spell out exactly what an employee must do to initiate arbitration does not render it unfair.

An arbitration agreement may be deemed too broad and unconscionable if it applies to claims that do not arise out of or relate to the parties’ employment relationship. (Cook v. Univ. of S. Cal. (2024) 102 Cal.App.5th 312, 325.) However, the agreement between the parties in this case is limited to claims arising out of the employment relationship. Although the agreement refers to “all disputes that may arise between the Employer and Employee”, the preface to the agreement specifies that it was intended to resolve “differences [that] may arise during the employment relationship and/or as a result of the termination of that relationship” (Decl. of Sirios, Exhs.

A-B, p. 1), all of the examples of claims subject to arbitration arise from the employment relationship (id., Exhs. A-B, § 2), and the admonition above the signature line specifies that “THIS AGREEMENT REQUIRES ME TO ARBITRATE ANY AND ALL DISPUTES THAT ARISE OUT OF MY EMPLOYMENT” (id., Exhs. A-B, p. 3, allcaps and bold in original, italics added).

An arbitration agreement may be deemed unconscionable if its duration is indefinite. (Cook, supra, 102 Cal.App.5th at 325.) But, given the limitation of the agreement to claims arising out of the employment relationship or the termination of that relationship, the survival of the agreement beyond termination merely ensures that claims that accrued before or at termination but not raised until after termination will be arbitrated. This does not render the agreement unfair or outside the reasonable expectation of the parties.

The waiver of the “right to any remedy or relief as a result of [] charges or complaints brought by [] governmental administrative agencies” resulting from a party’s filing of a charge or complaint with the appropriate governmental administrative agency “has nothing to do with arbitration” and may be deemed one-sided. (Hasty v. Am. Auto. Ass’n (2023) 98 Cal.App.5th 1041, 1060.) But, there is no waiver of administrative remedies in the parties’ agreement. To the contrary, the agreement explicitly permits an employee to pursue claims “before the California Department of Fair Employment and Housing, the United States Equal Employment Opportunity Commission, or similar agency”. (Decl. of Sirios, Exhs. A-B, § 2.) It is only when an employee chooses to pursue a claim after exhaustion of administrative remedies that the employee must arbitrate that claim. (Ibid.)

Similarly, there is no waiver of Plaintiffs’ right to pursue a representative PAGA claim. The agreement prohibits an employee from joining or acting “AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR COLLECTIVE PROCEEDING.” (Decl. of Sirios, Exhs. A-B, § 5, allcaps and bold in original.) There is no mention of PAGA in the agreement. A PAGA action is not a class or collective action; “a PAGA plaintiff, by contrast, represents a single principal, the LWDA, that has a multitude of claims.” (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 655.)

While there is a waiver of class or collective actions in the agreement, “class and collection action waivers in which [the plaintiff] agreed to arbitrate his individual Labor Code violation claims, including his individual PAGA claim, are enforceable under Adolph and Viking River, so long as they do not include a waiver of the right to bring nonindividual PAGA claims.” (Santana v. Studebaker Health Care Ctr., LLC (2026) 120 Cal.App.5th 1, 16.)

The court concurs that the arbitration agreement lacks mutuality in requiring Plaintiffs to arbitrate claims against non-signatory third parties. (Cook, supra, 102 Cal.App.5th at 327-328.) This “provides a significant benefit to [Defendant’s] related entities without any reciprocal benefit to [Plaintiffs].” (Id. at 328.) The single parenthetical purporting to apply the agreement to Defendant’s “owners, directors, officers, managers, employees or agents” shall be severed from the agreement. The remainder of the agreement will be enforced.

The action shall be stayed pending completion of the arbitration.

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