Amy Lee Thissell vs. Tenet Healthcare Corporation

Waiver by Defendants Plaintiff’s argument that Defendants have waived their right to compel arbitration is not well taken.

“To establish waiver under generally applicable contract law [which is applicable to arbitration agreements], the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it.” (Quach v. Cal. Commerce Club, Inc. (2024) 16 Cal.5th 562, 584.) “Under the clear and convincing standard, the proponent of a fact must show that it is ‘highly probable’ the fact is true.” (Id.) The waiving party’s “intentional relinquishment or abandonment of the right may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable factfinder to conclude that the party had abandoned it.” (Id.)

A review of the record indicates that although Defendants did not file the instant motion until 5/6/2026 even though the action was commenced on 3/6/2024, much of this delay was the result of Plaintiff not being able to serve one of the two defendants she had initially named in her complaint and the parties meeting and conferring to identify the correct entity that employed Plaintiff so that Plaintiff could dismiss the incorrect entity and name the correct entity.

As Plaintiff acknowledges, Defendant Tenet Healthcare Corporation has always asserted that Plaintiff’s individual claims in this action are subject to arbitration, alleging such in its answer filed on 4/4/2025 as well as in the parties’ status conference statements filed since then. Plaintiff could not serve the other defendant initially named in Plaintiff’s complaint, i.e., Tenet Practice Resources LLC. After the Court set multiple Orders to Show Case re: Plaintiff’s failure to engage all defendants and ordered Plaintiff’s counsel to name and serve the correct defendant, Plaintiff eventually filed a Doe Amendment to name Defendant Tenet Physician Resources, LLC on 1/9/2026 and dismissed Defendant Tenet Practice Resources LLC on 2/11/2026.

On 4/3/2026, Defendant Tenet Physician Resources, LLC finally appeared in this action by filing its answer, which also asserts that Plaintiff’s individual claims in this action are subject to arbitration. Both named Defendants then jointly filed the instant motion on 5/6/2026, contending that Defendant Tenet Healthcare Corporation did not employ Plaintiff, that Plaintiff was employed by Defendant Tenet Physician Resources, LLC, and that there is a valid arbitration agreement between Defendant Tenet Physician Resources, LLC and Plaintiff.

In the meantime, Defendants apparently also initiated an arbitration proceeding against Plaintiff with the AAA on or about 3/3/2026.

In short, Defendants’ conduct is the opposite of intentionally relinquishing or abandoning their rights to arbitration. Any delay in Defendants moving to compel arbitration in this action resulted from Plaintiff’s naming of the wrong employer-defendant in her initial complaint.

Delegation Clause As noted above, Plaintiff’s opposition does not challenge that the subject arbitration agreement exists. Instead, Plaintiff contends that the agreement is unenforceable because it is unconscionable.

In reply, Defendants contend that the Court may not decide Plaintiff’s unconscionability challenges because the parties’ arbitration agreement delegates this issue to the arbitrator to decide. Here, the arbitration agreement does not contain an express delegation clause. Therefore, Defendants rely on the arbitration agreement’s statement that “[t]he applicable Employment Arbitration Rules of the AAA will govern the procedures to be used in such arbitrations, unless the parties have agreed otherwise.” (ROA #104, Exh. 2 [Agreement] at ¶ 5.a..) According to the applicable AAA rules, “[t]he arbitrator shall have the power to rule on their own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or the arbitrability of any claim or counterclaim.” (ROA #104, Exh. 3 at R-7(a).)

“Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241.) Thus, “delegation clauses are essentially severable mini-agreements within agreements to arbitrate.” (Holley-Gallegly v. TA Operating, LLC (2023) 74 F.4th 997, 1001, citing Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70-73.) Thus, “the court must decide the validity of the delegation clause before considering the validity of the rest of the arbitration agreement.” (Tiri, supra, 226 Cal.App.4th at p. 241, fn. 3.)

“There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” (Id., citing Rent-A-Center, supra, 561 U.S. at 68-69, 70, fn. 1.)

Our reviewing court, the Court of Appeal for the Fourth District, Division 3, has explicitly rejected the argument that “incorporating the AAA employment dispute arbitration rules into the arbitration agreement [i]s sufficient to demonstrate a clear and unmistakable intent that the arbitrator would decide arbitrability” in the employment context. (Beco v. Fast Auto Loans, Inc. (2022) 86 Cal.App.5th 292, 305.) The court held that “incorporation by reference does not meet the clear and unmistakable test” for the same reasons stated by the court in Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 790:

In our view, while the incorporation of AAA rules into an agreement might be sufficient indication of the parties’ intent in other contexts, we seriously question how it provides clear and unmistakable evidence that an employer and an employee intended to submit the issue of the unconscionability of the arbitration provision to the arbitrator, as opposed to the court. There are many reasons for stating that the arbitration will proceed

by particular rules, and doing so does not indicate that the parties’ motivation was to announce who would decide threshold issues of enforceability.

Moreover, the reference to AAA rules does not give an employee, confronted with an agreement she is asked to sign in order to obtain or keep employment, much of a clue that she is giving up her usual right to have the court decide whether the arbitration provision is enforceable. Assuming that an employee reads the arbitration provision in the proposed agreement, notes that disputes will be resolved by arbitration according to AAA rules, and even has the wherewithal and diligence to track down those rules, examine them, and focus on the particular rule to which appellants now point, the rule merely states that the arbitrator shall have ‘the power’ to determine issues of its own jurisdiction, including the existence, scope and validity of the arbitration agreement.

This tells the reader almost nothing, since a court also has power to decide such issues, and nothing in the AAA rules states that the AAA arbitrator, as opposed to the court, shall determine those threshold issues, or has exclusive authority to do so, particularly if litigation has already been commenced.

(Beco, supra, at p. 305, quoting Ajamian, supra, at p. 790, italics original to Ajamian; see also Jack v. Ring LLC (2023) 91 Cal.App.5th 1186, 1201 [also following Ajamian and Beco, among other cases, to hold that “mere reference to JAMS Rules in the arbitration provision does not constitute clear and unmistakable delegation to the arbitrator of threshold issues of enforceability].)

Therefore, the Court concludes that the parties here did not clearly and unmistakably delegate issues of enforceability of the agreement— including whether the agreement is unconscionable—to the arbitrator to decide.

Unconscionability Unconscionability has both a procedural and a substantive element: The procedural element focuses on the existence of “oppression or surprise due to unequal bargaining power,” and the substantive element focuses on “overly harsh or one-sided results.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, internal quotes omitted.) For unconscionability to render an agreement or clause unenforceable, both procedural and substantive unconscionability must be present—but “they need not be present in the same degree.” (Id.) A “sliding scale” applies such 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.” (Id.)

The party opposing arbitration bears the burden of proving an unconscionability defense. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 42.)

Procedural Unconscionability “Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on the factors of oppression and surprise.” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329, internal quotes & citations omitted.)

Here, Plaintiff raises only arguments relating to oppression, not surprise, as Plaintiff contends only that the agreement is an adhesive contract because Plaintiff was required to sign the arbitration agreement, was not given an opportunity to negotiate its terms, and no one explained to her the contents of the documents she was signing.

“The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.” (Id.) Where an arbitration agreement is “imposed on employees as a condition of employment and there was no opportunity to negotiate,” there is “little dispute” that the arbitration agreement is “adhesive.” (Armendariz, supra, 24 Cal.4th at pp. 114-115; see also id. at p. 113 [defining “contract of adhesion” as “a standardized contract, which[is] 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”].)

However, “the adhesive nature of a contract is one factor the courts may consider in determining the degree of procedural unconscionability.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84, fn. 4.) Moreover, the “adhesive aspect of an agreement is not dispositive,” as overall enforceability still depends on the “sliding scale” analysis of procedural and substantive unconscionability. (Serpa v. Cal. Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704; see also Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817 [contracts of adhesion are “an inevitable fact of life for all citizens”].)

Here, Plaintiff has shown a minimal degree of procedural unconscionability due to the adhesive nature of the agreement.

Substantive Unconscionability “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or onesided.” (Hayden v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1287, internal quotes omitted.) “[T]he central idea [is] that unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911, internal quotes & citations omitted [also confirming that “overly harsh,” “unduly oppressive,” “so one-sided as to shock the conscience,” and “unfairly one sided” all point to this same “central idea”].) Unconscionable terms include those that “contravene the public interest or

public policy” or “terms . . . that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law.” (Id. at p. 911.)

“The paramount consideration in assessing conscionability is mutuality.” (Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482, 492, internal quotes, brackets, & ellipses omitted.) But “a contract can provide a margin of safety that provides the party with superior bargaining strength a type of extra protection for which it has a legitimate commercial need without being unconscionable.” (Sanchez, supra, 61 Cal.4th at p. 912, internal quotes omitted, quoting Armendariz, supra, 24 Cal.4th at p. 117.) “[W]here no meaningful choice was exercised upon entering the contract, the test is whether the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place.” (Id., internal quotes omitted.)

Here, Plaintiff contends that the agreement is substantively unconscionable based on two provisions: (1) confidentiality and (2) PAGA waiver.

On confidentiality, the parties’ agreement states:

Confidentiality: All statements and information made or revealed during the [Fair Treatment Process or “FTP,” which includes arbitration] are confidential, and neither the employee nor the Company may reveal any such statements or information, including on a “need to know” basis or a[s] permitted or required by law.

(Agreement, ¶ 5.f.)

Plaintiff contends that this confidentiality provision is as broad and sweeping as the confidential provisions found unconscionable in Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280 and Ramos v. Super. Ct. (2018) 28 Cal.App.5th 1042. But that is incorrect.

In Haydon, the confidentiality provision barred the parties from “disclosing the existence, content, or results of the arbitration.” (Haydon, supra, at p. 1290.) The court in Haydon likened that provision to the one in Ramos (id.), which provided that “[e]xcept to the extent necessary to enter judgment on any arbitral award, all aspects of the arbitration shall be maintained by the parties and the arbitrators in strict confidence” (Ramos, supra, at p. 1065.) Both the Haydon and Ramos courts found that the broad confidentiality provisions in those cases were unconscionable because they would restrict plaintiff’s ability to gather information to present her case. (Haydon, supra, at p. 1290, internal quotes & brackets omitted [“such a clause would restrict the plaintiff from gathering information informally, increasing his or her costs unnecessarily and defeating the purpose of using arbitration as a simpler, more time-effective forum for resolving disputes”]; Ramos, supra, at p. 1065 [“It is hard to see how [plaintiff[could engage in informal discovery or contact witnesses without violating the prohibition against revealing an ‘aspect of the arbitration’”].)

In contrast, here, the confidentiality provision explicitly permits revealing statements and information made or revealed during the FTP process, including arbitration, on a “need to know” basis or as permitted or required by law. Such a provision would permit Plaintiff to engage in informal discovery and to contact witnesses to assist her with presenting her case. It would also permit Plaintiff to speak to other potential claimants to assist other potential claimants in pursuing their rights against Defendants.

Therefore, the Court does not find the confidentiality provision in the parties’ agreement here to be substantively unconscionable.

As for the PAGA waiver, Plaintiff contends that the agreement contains an impermissible ban on PAGA actions, citing Navas v. Fresh Venture Foods, LLC (2022) 85 Cal. App. 5th 626, 635.

However, the relevant provision does not include a wholesale ban on PAGA actions. It states: “The employee understands and agrees that to the extent permitted by law, his or her claim will not be joined with any claim or dispute of another employee in a class, collective, representative or group action.” (Agreement, ¶ 2.b., emphasis added.) As this provision permits only arbitration of individual claims, not representative claims, and it waives class, collective, representative, or group claims only “to the extent permitted by law,” this provision is also not substantively unconscionable.

In short, the Court finds that the agreement is not substantively unconscionable.

As Plaintiff has only shown a minimal degree of procedural unconscionability and no substantive unconscionability, the Court finds that the agreement is enforceable.

Stay of Representative PAGA Claim Finally, Plaintiff objects to Defendants’ request to compel arbitration of her individual PAGA claim and stay her representative PAGA claim because Plaintiff contends that the agreement does not permit splitting of Plaintiff’s PAGA claim into individual versus representative. Plaintiff contends that because the parties entered into their arbitration agreement in 2014 and reaffirmed it in 2019—i.e., years before Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 was decided—the parties could not have contemplated that the agreement would split a PAGA claim into individual versus representative such that the Court must compel Plaintiff’s individual PAGA claim to arbitration while staying the representative PAGA claim in court.

Plaintiff relies on LaCour v. Marshalls of CA, LLC (2025) 117 Cal.App.5th 505. In LaCour, the court interpreted the following language in an arbitration agreement that the parties executed in March 2014:

Among the provisions in the Arbitration Agreement is paragraph 5, a “Class Action, Collective Action, and Private Attorney General

Waiver,” which states in pertinent part: “[LaCour and Marshalls] agree to bring any dispute in arbitration on an individual basis only and not on a class, collective, or private attorney general representative action basis. [¶] ... [¶] (c) There will be no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general representative action (‘[PAGA Waiver]’). The [PAGA Waiver] shall be severable from this Agreement in any case in which a civil court of competent jurisdiction finds the [PAGA Waiver] is invalid, unenforceable, revocable, unconscionable, void or voidable.

In such instances and where the claim is brought as a private attorney general claim, such private attorney general claim must be litigated in a civil court of competent jurisdiction.” A concluding proviso to this provision, set off as an additional subparagraph applicable to the entire paragraph and all subparagraphs, states, “The ... [PAGA Waiver] shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.”

(LaCour, supra, 117 Cal.App.5th at p. 508.)

The court held that because the severability clause stated that, when it is applied to sever the PAGA waiver, “such private attorney general claim must be litigated in a civil court,” the provision states exactly what it means and cannot be interpreted to incorporate Viking River Cruises’ later distinction between individual and non-individual PAGA claims such that only plaintiff’s non-individual claims must be litigated in court while plaintiff’s individual claims must be arbitrated. (Id. at pp. 521-522.) The LaCour court held that for it to interpret the agreement to require arbitration of plaintiff’s individual PAGA claim while litigating in court plaintiff’s non-individual PAGA claim, “the words in Paragraph 5(c) would have to read, ‘[i]n such instances, and where the claim is brought as a non-individual private attorney general claim, such private attorney general claim must be litigated in a civil court of competent jurisdiction’; and the Paragraph 5 proviso to have read, ‘... severance is necessary to ensure that the individual PAGA action proceeds in arbitration.’” (Id. at p. 511, italics original.)

Here, the relevant language of the parties’ arbitration agreement is materially different and contains none of the language analyzed by the court in LaCour to determine the parties’ intent at the time of formation in that case. First, the PAGA waiver here includes limiting language—i.e., “to the extent permitted by law”—whereas the PAGA waiver in LaCour did not. This language indicates intent to follow the law as it develops— including any differentiation between “individual” and “non-individual” PAGA claims.

Second, there is no severance provision here that states that “private attorney general claim[s] must be litigated in a civil court.” Therefore, the intent of the parties appears to require Plaintiff to arbitrate all employment-related claims, while enforcing the PAGA waiver to the extent permitted by law—which, under Viking Rivers, means that while the PAGA waiver cannot be enforced as a wholesale waiver, the Court must enforce the parties’ agreement to arbitrate all claims relating to

Plaintiff’s employment, including Plaintiff’s individual PAGA claim. Therefore, LaCour also does not help Plaintiff.

Plaintiff also contends that the Court should not stay the PAGA claim because a stay would harm Plaintiff’s ability to investigate the merits of the State’s claim. However, Code of Civil Procedure (CCP) section 1281.4 provides, in relevant part, that “[i]f a court of competent jurisdiction . . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” Plaintiff cites no authorities that the Court can ignore the mandates of CCP section 1281.4.

Accordingly, Plaintiff is ORDERED to arbitrate her individual claims against Defendants, including her individual PAGA claim.

The Court notes that Plaintiff previously requested that the Court “dismiss the class allegations from cause of action 1 through 13 in this Action without prejudice” “[p]ursuant to an arbitration agreement between the Parties that contains a class action waiver.” (ROA #102, ¶ 9.) The Court grants Plaintiff’s request and orders that such class allegations against Defendants are hereby DISMISSED WITHOUT PREJUDICE.

This action, including Plaintiff’s representative PAGA claim, is STAYED until the arbitration is had pursuant to CCP section 1281.4.

An ADR review hearing is scheduled for June 3, 2027 at 9:30AM in Department CX102. The parties shall submit a joint status report 10 days in advance of the hearing.

Defendants shall give notice. 105 Carrasco vs. Disney Destinations, LLC

2025-01534410 1. Motion to Compel Arbitration 2. Case Management Conference

Defendants Disney Destinations, LLC; The Walt Disney Company; and Walt Disney Parks and Resorts U.S., Inc.’s Motion to Compel Arbitration and Stay the Proceedings is GRANTED.

Plaintiffs Rocio Carrasco and Anahi Carrasco’s request for judicial notice is DENIED as unnecessary. A citation to the complaint is sufficient.

Plaintiffs’ evidentiary objections (ROA #93) to the declaration of Beth Fiske (ROA #54) is OVERRULED in its entirety.

Plaintiffs’ evidentiary objections (ROA #109) to the supplemental declaration of Fiske (ROA #107) is also OVERRULED in its entirety.