Zuniga Espinoza, Wendy vs. Black Bear Diner - Visalia L.P.

5. My manager handed me the stack of papers and told me to sign them. I was told that I needed to sign the papers in order to continue working. ... 7...I did not read the documents before signing them, and I would not have been able to understand them if I had.

13. My attorneys have shown me the document attached to the Rose declaration as Exhibit A, which is in Spanish. The writing on the last page looks like my handwriting, however I do not recognize this document or recall ever signing...

14. At the time I signed, I did not understand that I was agreeing to give up any legal rights. I believed I was signing routine policy paperwork that was required in order to be employed." Further, Plaintiff objects to the declaration of Rose and of Defendants' counsel.

Authority and Analysis - Agreement to Arbitrate "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement." (Code Civ. Proc. Sec. 1281.2(a), (b).) (emphasis added.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement. (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.) "For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication." (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence ...." (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.)

"However, the burden of production may shift in a three-step process." (Id. at 165.) "First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party '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.]" (Id. .) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]" (Id.)

Here, the Court finds a sufficient showing as to the business records exception and that the "normal procedures" of document authentication regarding Exhibits A and C via the declaration of Rose. A qualified witness need not be the custodian, the person who created the record, or one with personal knowledge in order for a business record to be admissible under the hearsay exception. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322.) "A trial judge has broad discretion in admitting business records under Evidence Code section 1271." (People v.

Dorsey (1974) 43 Cal.App.3d 953, 961.) The criteria for establishing that a document is subject to the business records exception to the hearsay rule may be inferred from the circumstances. (Id.) "Indeed, it is presumed in the preparation of the records not only that the regular course of business is followed but that the books and papers of the business truly reflect the facts set forth in the records brought to court. [Citations.]" (Id.)

Here, Defendants' initial burden is met through attachment of Exhibits A and B as to Plaintiff's handwritten signature to the Agreement and English translation thereof. "If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at 165.) "The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement." (Id.)

In Gamboa, the Court of Appeal found that the plaintiff "met her burden on the second step by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it: 'I do not remember these documents at all .... Had I been made aware of the existence of an arbitration agreement, and been explained its provisions, I would not have signed any such documents.'" (Gamboa, supra, 72 Cal.App.5th at 167.)

Here, Plaintiff indicates, similar to the plaintiff in Gamboa, she does not recognize the document, does not recall signing the document and has never previously read the document. (Declaration of Plaintiff P.P.4, 5, 6, 8, 12, 13.) Under Ramirez v. Golden Queen Mining Co., LLC (May 15, 2024) 102 Cal.App.5th 821, Plaintiff's declaration is insufficient, as she fails to deny the signature is her own: "There is a split of authority among the Courts of Appeal as to what constitutes sufficient evidence to create a factual dispute about the authenticity of a handwritten signature on a document agreeing to arbitration. (Compare Iyere v.

Wise Auto Group (2023) 87 Cal.App.5th 747, 757-758, review den. Apr. 26, 2023, S278817 with Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165) We join Iyere in concluding that an individual is capable of recognizing his or her handwritten signature and if that individual does not deny a handwritten signature is his or her own, that person's failure to remember signing the document does not create a factual dispute about the signature's authenticity. (Iyere, supra, at p. 757.)" (Id. at 825.)

In Ramirez, the appellate court found that the employer had met the initial burden via a declaration that asserted the employee was employed, that the declarant was the custodian of records, that the personnel file containing employee documents was kept in the regular course and scope, that a personnel file was maintained for the employee, that the employee signed the agreement and that true and correct copies were attached to the declaration. (Id. at 831.) As noted above, and in line with Ramirez (as well as with Gamboa and other cases), the Court has found Defendant has carried its initial burden.

Further, under Ramirez and in a handwritten signature case like this one, Plaintiff's failure to deny she signed the Agreement is fatal the challenge to the authenticity. The Ramirez court noted that "Ramirez's declaration stated (1) he did "not recall ever being presented with an arbitration agreement," (2) he did "not recall ever signing an arbitration agreement," (3) no one informed him about an arbitration agreement, informed him of a desire that he sign an arbitration agreement, or explained to him what an arbitration agreement was, and (4) if someone had explained to him what an arbitration agreement was, he would not sign it." (Id. at 836.)

The court, therefore, found the declaration insufficient to challenge the authenticity, stating "His declaration does not assert the signature on that document is not his and, furthermore, does not even state that he cannot recall signing that particular document. Consequently, we conclude Ramirez, like the plaintiffs in Iyere, has offered no admissible evidence creating a dispute as to the authenticity of the handwritten signature on the acknowledgement." (Id. at 836-837.)

The Court here agrees that "the inability to recall signing a document does not 'afford[] an independent basis to find that a contract was not formed'" and therefore, the burden has not shifted back to Defendant. Here, Plaintiff does not dispute that she signed the Agreement. (Declaration of Plaintiff P.P.13, 14.) Therefore, the Court finds an agreement to arbitrate exists.

Facts - Scope of Agreement The Agreement expressly applies to: "...all disputes arising out of, or related directly or indirectly to, my employment relationship with, or the termination of my employment from, the Company and/or any putative joint or client employer (including but not limited to a client employer that retains labor from the Company) shall be resolved only by an Arbitrator through final and binding arbitration and not by way of court or jury trial. This includes, without limitation, any disputes or claims that I might bring against the Company concerning any or all of the following: wage and hour law(s) (federal, state and local), compensation, breaks and rest periods, uniform maintenance, training, termination, discrimination, harassment, and claims arising under statute and/or common law addressing the same or similar subject matters.

It also includes, without limitation, any disputes or claims the Company might bring against me concerning any or all of the following: trade secrets, unfair competition, confidentiality, defamation, breach of contract, return of Company property, and claims arising under statute and/or common law addressing the same or similar subject matters..."

Authority and Analysis - Scope of Agreement Based on the claims pled in the complaint under the Labor Code and Business and Professions Code, the Court finds the claims at issue here are within the scope of the Agreement.

Facts - FAA Application The Agreement states: "This Agreement is an arbitration agreement governed by the Federal Arbitration Act, 9 U.S.C. sections 1 et seq., and evidences a transaction involving commerce.

Authority and Analysis - FAA Application The party asserting the FAA applies to an agreement has "the burden to demonstrate FAA coverage by declarations and other evidence." (Hoover v. American Income Life Ins.Co. (2012) 206Cal.App.4th 1193, 1207; see Shepard v. Edward Mackay Enterprises, Inc. (2007) 148Cal.App.4th 1092, 1101) "The FAA applies to contracts that involve interstate commerce (9 U.S.C. Sec.Sec. 1, 2), but since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement." (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) No opposition appears to be raised to the application of the FAA. Therefore, the Court finds the FAA applies.

Facts - Class Action Waiver Here, the Agreement states: "7. Class Action Waiver. There will be no right or authority under this Agreement for any dispute to be brought, heard, or arbitrated as a class or collective action ("Class Action Waiver"). Notwithstanding any other clause contained in this Agreement, this Paragraph is not severable from this Agreement in any case in which the dispute to be arbitrated is brought as a class or collective action. Notwithstanding any other clause contained in this Agreement, any claim that the Class Action Waiver is unenforceable, unconscionable, void or voidable, must be determined by a court of competent jurisdiction and not by an Arbitrator."

Authority and Analysis - Class Action Waiver As the FAA applies, the class action waiver is enforceable. (Viking River Cruises v. Moriana (2022) 596 U.S. 639, 651 ["'a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so'"]; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352 [holding class action waivers are enforceable under FAA and California rule to contrary preempted].)

Facts - PAGA Claims As to PAGA claims, the Agreement states: "8. PAGA Claims. The Company and I mutually agree that, pursuant to the Federal Arbitration Act, all disputes arising out of the California Private Attorneys General Act, or related directly or indirectly to any claims derived from the California Labor Code, shall be subject to binding arbitration under this Agreement on an individual basis only. The parties agree that in the event any PAGA claims are filed in civil court, my individual PAGA claims shall be resolved only by an Arbitrator on an individual basis through final and binding arbitration and not by way of court or jury trial. There shall be no right or authority for non-individual PAGA claims to be asserted in arbitration on behalf of other parties."

Authority and Analysis - PAGA Claims In Viking River, the United States Supreme Court held that, under an agreement permitting such, a PAGA cause of action may be divided into individual and representative claims and that the individual claims may be ordered to arbitration: "PAGA authorizes any 'aggrieved employee' to initiate an action against a former employer 'on behalf of himself or herself and other current and former employees' to obtain civil penalties that previously could have been recovered only by the State in an [Labor Workforce and Development Agency] enforcement action." (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 645.) The "individual PAGA claim" is the claim for the violations suffered by the aggrieved employee and the "representative PAGA claim" is the PAGA claim arising out of events involving other employees. (Id. at 648.)

The Viking River decision "left undisturbed" and "intact" both of the rules from Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 that (1) prohibited categorical waivers of the right to bring a PAGA action in any forum and (2) prohibited waivers of PAGA claims on behalf of other employees, i.e., non-individual or representative claims. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104,1117-1118.) However, the United States Supreme Court held that the third rule, which prohibited the "'division of PAGA actions into individual and non-individual claims through an agreement to arbitrate'" was preempted by the FAA. (Id. at 1118.)

Specifically, the Viking River Court stated: "The agreement between Viking and Moriana purported to waive 'representative PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any portion that remains valid must still be 'enforced in arbitration.' Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim." (Id. at 1924-1925.)

As summarized by Adolph: "The high court explained that an anti-splitting rule 'unduly circumscribes the freedom of parties to determine "the issues subject to arbitration" and "the rules by which they will arbitrate," [citation], and does so in a way that violates the fundamental principle that "arbitration is a matter of consent."' (Viking River, at p. 659.) Requiring parties to adjudicate a PAGA action entirely in one proceeding, the high court said, 'compels parties to either go along with an arbitration in which the range of issues under consideration is determined by coercion rather than consent, or else forgo arbitration altogether.

Either way, the parties are coerced into giving up a right they enjoy under the FAA.' (Viking River, at p. 661.) Thus, Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA." (Adolph, supra, 14 Cal.5th at 1118-1119.)

"There is no individual component to a PAGA action because '"every PAGA action . . . is a representative action on behalf of the state."' [Citation.]" (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.) The term "individual" refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by the plaintiff. (See Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 648 [referring to these claims as "Type A" claims].) The term "non-individual" refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by employees other than the plaintiff. (Galarsa, at 649 [referring to these claims as "Type O" claims].)

As summarized by the California Supreme Court in Adolph, an agreement that is covered by the FAA may require arbitration of "alleged Labor Code violations personally sustained by a PAGA plaintiff -- so-called 'individual' claims." (Adolph, supra, 14 Cal.5th at 1114, 1119.) "'[W]hen an appropriate arbitration agreement exists'" and "a plaintiff has filed a PAGA action comprised of individual and non-individual claims," the trial court must "'bifurcate and order [the] individual PAGA claim[] to arbitration.'" (Id. at 1126, 1123.)

In this circumstance, the "order compelling arbitration of [the] individual claim[] does not strip the plaintiff of standing to litigate non-individual claims [i.e., claims on behalf of other employees] in court." (Id. at 1123) Instead, "'the individual PAGA claim[] in arbitration remain[s] part of the same lawsuit as the representative claims remaining in court.'" (Id. at 1126.) The plaintiff would thus be "'pursuing a single PAGA action "on behalf of [himself or herself] and other current or former employees," albeit across two fora.' [Citation.]" (Id.)

Here, the Agreement sufficiently evidences the intent to split the claims via reference to resolution of "individual" (Type A) claims in arbitration only and that non-individual claims cannot be arbitrated. The Court reads the Agreement as a whole and finds it demonstrates the requisite intent to split the claims pursuant to Viking River and as instructed by Adolph.

Facts - Defenses to Enforcement - Unconscionability As to procedural unconscionability, Plaintiff states she was given a stack of documents to sign, that she was told to sign them by a manager, that signing the paperwork was a condition of employment, that no one explained the documents or that the documents contained an arbitration agreement, that Plaintiff was not provided an opportunity to read or review the documents, that Plaintiff did not receive a copy of the documents and that Plaintiff did not understanding she was giving up any legal rights by signing. (Declaration of Plaintiff P.P.4-14.) As to substantive unconscionability, Plaintiff identifies a lack of mutuality, near infinite scope and waiver of statutory rights under the UCL.

Authority and Analysis - Defenses to Enforcement - Unconscionability The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. "[T]he 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. at 114.)

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. 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. The component of surprise arises when the challenged terms are 'hidden in a prolix printed form drafted by the party seeking to enforce them.'" (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) The Court also considers whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.)

"The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney." (Id.) As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is "particularly acute," which indicates oppression. (Id. at 127.)

"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. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) Arbitration contracts imposed as a condition of employment are typically adhesive. (Armendariz, supra, 24 Cal.4th at 114-115; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) "[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Here, the Agreement appears to be a compulsory pre-dispute agreement for which Plaintiff was provided little time to review or comprehend, with some pressure exerted by management to sign the Agreement. The Agreement is relatively short, but does contain dense paragraphs setting forth the terms of arbitration. Plaintiff further indicates she would not have understood the terms of the Agreement even if given time to review them and that review was no aided by an attorney. The Court finds a relatively high degree of procedural unconscionability under these circumstances.

Substantive Unconscionability "Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, 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. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties." (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129-30, internal quotations and citations omitted.)

Armendariz sets forth elements of essential substantive fairness as follows: (1) provide for a neutral arbitrator: (2) provide for adequate discovery; (3) require the arbitrator to issue a written decision that permits limited judicial review; (4) provide for the same remedies that would otherwise be available to the employee in court; (5) not require the employee to bear costs unique to arbitration; and (6) provide a "modicum of bilaterality" between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Scope and Duration Here, the Agreement applies to "...all disputes arising out of, or related directly or indirectly to, my employment relationship with, or the termination of my employment from, the Company..." as well as "...without limitation, any disputes or claims that I might bring against the Company concerning any or all of the following: wage and hour law(s) (federal, state and local), compensation, breaks and rest periods, uniform maintenance, training, termination, discrimination, harassment, and claims arising under statute and/or common law addressing the same or similar subject matters.

It also includes, without limitation, any disputes or claims the Company might bring against me concerning any or all of the following: trade secrets, unfair competition, confidentiality, defamation, breach of contract, return of Company property, and claims arising under statute and/or common law addressing the same or similar subject matters." Further, that "I must arbitrate whatever individual claims I have against the Company, and that the Company is also obligated to arbitrate any claims it has against me."

Plaintiff cites to Cook v. University of Southern California (2024) 102 Cal.App.5th 312, where the court found agreement was overbroad in scope because it required arbitration of "all claims, whether or not arising out of Employee's University employment, remuneration or termination." (Id. at 321.) The court found the term substantively unconscionable as it "required Cook to arbitrate claims that are unrelated to her employment with USC." (Id.) The Cook court contrasted its clause with the one in Roman v.

Superior Court (2009) 172 Cal.App.4th 1462. In Roman, the clause at issue stated it applied to "all disputes and claims arising out of the submission of this application," and "all disputes . . . which might arise out of my employment with the company." (Id. at 1467.) Cook noted: "In Roman, unlike here, the arbitration clause in question was expressly limited to claims arising from the employee's job application and subsequent employment." (Cook, supra, 102 Cal.App.5th at 323.)

As to the duration, the Agreement appears to apply indefinitely. Read together with the scope of the Agreement noted above, the reasonable interpretation of this term is that it applies indefinitely. (See Cook, supra, 102 Cal.App.5th at 325 ["...the arbitration agreement was unconscionable because it survived indefinitely following Cook's termination from USC") While the agreement in Cook could not be revoked except for the president of USC signing it, there is no limit on the duration here where post-employment claims are within the scope of the Agreement.

However, the court in Ayala-Ventura v. Superior Court (2026) 119 Cal. App. 5th 241 noted Cook is factually distinguishable from its facts and further that unconscionability is highly dependent on context, stating: "Cook must be considered in its own context which differs materially from the circumstances in this case. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th at p. 911 ["An evaluation of unconscionability is highly dependent on context."].) As in Cook, the Agreement potentially covers a broad array of claims regardless of whether they arise out of Ayala-Ventura's employment with CCS.

But the Cook court did not conclude an arbitration agreement covering all claims including those unrelated to employment is per se unconscionable as Ayala-Ventura seems to argue. Because "parties are free to contract for asymmetrical remedies and arbitration clauses of varying scope," the Agreement's purportedly broad scope does not necessarily mandate a finding of unconscionability. (Armendariz, supra, 24 Cal.4th at p. 118.)

The agreement in Cook was unconscionable in part because of the multifarious ways in which a claim against USC "completely unrelated to [Cook's] employment" could arise. (Cook, supra, 102 Cal.App.5th at p. 318.) As an example, the trial court observed that if Cook were to undergo a botched surgery at USC's hospital in 15 years, her claims would still be subject to arbitration. (Ibid.) Given CCS solely provides commercial janitorial services, we are hard pressed to discern how a similarly vast range of claims completely unrelated to Ayala-Ventura's employment could arise, nor does Ayala-Ventura offer a similar panoply of potential claims she might assert. The Agreement's scope is not unconscionably broad under the circumstances in this case.

This more limited potential claims bears on Ayala-Ventura's claim the Agreement is unconscionable because it is infinite in duration. The Agreement states it "shall survive the termination of [Ayala-Ventura's] employment. It can only be revoked or modified by a writing signed by [Ayala-Ventura] and the Human Resources Representative of the Company that specifically states an intent to revoke or modify this Arbitration Agreement." Ayala-Ventura argues this language is substantially the same as the language the Cook court found unconscionable because the agreement survived indefinitely following the plaintiff employee's termination.

Specifically, the agreement in Cook provided it "'shall survive the termination of Employee's employment, and may only be revoked or modified in a written document that expressly refers to the "Agreement to Arbitrate Claims" and is signed by the President of the University.'" (Cook, supra, 102 Cal.App.5th at p. 317.)

Though the Agreement's language is substantially like that in Cook, we reiterate the importance of context in determining unconscionability. The various potential claims that could arise against USC together with the agreement's infinite duration made it unconscionable. Ayala-Ventura claims if she were injured in an automobile accident caused by one of CCS's company vehicles 10 years after her employment, she would be compelled to arbitrate a claim. But without facts about the number of company vehicles generally in use by CCS, we are unable to assess the probability of this occurrence, which appears speculative at best.

Nothing in the record indicates CCS's operations have anything like the well-known, broad capacity of USC's reach. Cook could be subject to the arbitration agreement forever in any manner of ways including not just a botched surgery but an injury while attending a USC football game in 15 years." (Id. at 257-258.)

Similarly, here, any anticipated claims against Defendant that do not arise out of employment and which may occur years in the future are speculative under this analysis as Defendants are not similarly situated as USC. Given that Defendants operate restaurants and lacking evidence as to the probability of the occurrence of a future claim involving a vehicular accident, slip and fall or other cause of action against Defendant, the Court finds Ayala-Ventura applicable to distinguish Cook and find no substantive unconscionability present based on these terms.

Mutuality Here, the Agreement, as Plaintiff notes, requires Plaintiff to arbitrate all claims against Defendants and "its affiliates, subsidiaries, related entities, or parent companies....and/or any putative joint or client employer." However, the Agreement does not require those other entities to arbitrate claims against Plaintiff. Cook also examined the issue of mutuality, noting "The agreement requires Cook to arbitrate any and all claims she may have against USC 'or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise.'

However, the agreement does not require USC's 'related entities' to arbitrate their claims against Cook." (Cook, supra, 102 Cal.App.5th at 326.) The court concluded "This confers a benefit on USC and its broadly defined 'related entities' that is not mutually afforded to Cook." (Id. at 327.)

On this issue, the Ayala-Ventura court also distinguished Cook, stating: "The employee in Cook was obliged to arbitrate her claims against USC, its related entities, as well as its "officers, trustees, administrators, employees or agents," but only USC was bound to arbitrate its claims against the plaintiff. The agreement lacked mutuality because USC's "'related entities'" were not bound to it. (Cook, supra, 102 Cal.App.5th at p. 319.) Here, the Agreement's definition of "Company" expressly includes CCS's related entities and binds those entities to arbitration.

Cook was also bound to arbitrate any claims against USC's officers, trustees, administrators, employees or agents "'in their capacity as such or otherwise.'" (Id. at p. 317, italics added.) This language was understood as requiring Cook to arbitrate any claims against these individuals even where they were not acting in their identified capacity. In contrast, the Agreement expressly limits arbitration to claims against CCS's employees or agents in their capacity as such. Any claims Ayala-Ventura may have against employees or agents unrelated to their role are therefore not subject to the Agreement." (Id. at 258.)

The Court also factually distinguishes the present Agreement from Cook and Ayala-Ventura. The Agreement defines "Company" as "Black Bear Diner - Visalia L.P. or one of its affiliates, subsidiaries, related entities, or parent companies" and states "I understand that by signing below I am agreeing that I must arbitrate whatever individual claims I have against the Company, and that the Company is also obligated to arbitrate any claims it has against me." As such, the Court finds sufficient mutuality and does not find this term unconscionable.

Statutory Rights under the UCL Next, Plaintiff argues that Paragraph 6 provides that the arbitrator may award any remedy to which a party is entitled under applicable law, "...but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator." Plaintiff notes that the eight cause of action arises under the UCL and seeks injunctive relief for the benefit of the general public.

Plaintiff, in support, cites to McGill v. Citibank (2017) 2 Cal.5th 945, 951: "The question we address in this case is the validity of a provision in a predispute arbitration agreement that waives the right to seek this statutory remedy in any forum. We hold that such a provision is contrary to California public policy and is thus unenforceable under California law. We further hold that the Federal Arbitration Act (FAA; 9 U.S.C. Sec. 1 et seq.) does not preempt this rule of California law or require enforcement of the waiver provision."

Here, the Court does not interpret the Agreement to bar public injunctive relief, as such relief remains available in a court of law by an individual Plaintiff bringing the UCL claim. DiCarlo v. MoneyLion, Inc. (9th Cir. 2021) 988 F.3d 1148, 1153 notes: "To refresh, if public injunctive relief is available in an individual lawsuit under California law, then the arbitrator is "authorized" to grant it under the all-remedies clause." Here, Plaintiff's individual cause of action under the UCL (as the Court has enforced the class action wavier above) permits public injunctive relief and therefore the Agreement's term limiting remedies to those available by an individual in a court of law does not run afoul of McGill. Therefore, the Court does not find this term substantively unconscionable.

As such, the Court finds no substantive unconscionability in the Agreement and therefore, finds the Agreement enforceable.

Discovery Plaintiff argues that, if the Court is to grant the motion, a continuance to take limited discovery as to the depositions of Rose and Scorzelli, as well as production of personnel records is necessary as the evidence raises a material conflict as to the existence or terms of an arbitration agreement, citing to Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414 and Code of Civil Procedure section 1281.2.

Rosenthal states, as to discovery, "Plaintiffs do not, however, assert they actually had insufficient time to conduct discovery before hearing of the petition, or that they sought and were refused discovery of any matter pertinent to the enforceability of the arbitration clause. Plaintiffs, of course, have full access to, and have made full use of, their own recollections of the transactions, the principal evidence upon which their claim of fraud in inception of the arbitration agreement is based." (Id. at 412.)

Here, however, the Court has a declaration from Plaintiff that does not deny the signature on the document at issue is her own, has a complete version of the Spanish version of the Agreement and its English translation and has found procedural unconscionability as to the circumstances of its execution. Plaintiff has not demonstrated what discovery would assist as to rebut the findings above that Plaintiff signed the Agreement and that the terms of the Agreement, fully set forth before this Court and the parties, are not substantively unconscionable. The Court denies the request for discovery.

Therefore, the Court grants the motion, finds a valid waiver of the class claims, and compels Plaintiff's individual claims, as well as the Type A PAGA claim to arbitration. Plaintiff's Type O PAGA claim is stayed in this Court pending the competition of arbitration.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Wells Fargo Bank, NA vs. Yang, Sarah