106 Martinez vs. Far West Restaurant Group, LLC

If the moving party meets its initial burden, and the opposing party disputes the agreement, then the burden shifts to the opposing party to challenge the authenticity of the agreement.

Finally, if plaintiff presents evidence that no agreement exists, the burden shifts back to the moving party to present admissible evidence of a valid arbitration agreement between the parties by a preponderance of the evidence. Gamboa, supra, 72 Cal.App.5th at 164–67.

Here, there is no dispute plaintiff electronically signed the “Binding Mutual Agreement to Arbitrate Claims” (the “Agreement”) on 06-12-2024. ROA 22 Ex.

1. Accordingly, the court finds the parties formed an agreement to arbitrate.

Relevant Terms of the Agreement

The Agreement applies to “any controversy, claim or dispute between [plaintiff] and...Company.” ROA 22 Ex.

1. The Agreement defines “Company” as defendant Far West Restaurant Group, LLC’s and its “related entities, holding companies,

parents, subsidiaries, divisions, officers, shareholders, directors, employees, agents, insurers, vendors, contractors, customers, predecessors, successors, and assigns.” Id.

The Agreement includes a class and representative action waiver that is enforceable to the extent permitted by law. ROA 22 Ex.

1. Specifically, the Agreement gives the arbitrator express authority to adjudicate the individual portion of a PAGA claim. Id. A severability provision provides for the enforcement of all other provisions in the event a court finds any part unenforceable. Id.

There is no dispute the Agreement covers the claims asserted by plaintiff.

Federal Arbitration Act

The Agreement expressly provides the Federal Arbitration Act (“FAA”) applies. ROA 22 Ex.

1. Defendant has also presented undisputed evidence it is engaged in interstate commerce. ROA 22 ¶¶ 2-4. The court thus finds the FAA applies and plaintiff does not challenge its application.

Unconscionability

Plaintiff argues the Agreement is unconscionable in several respects and therefore unenforceable.

In OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, the California Supreme Court recognized that notwithstanding the strong public policy favoring arbitration, “‘generally applicable contract defenses, such as . . . unconscionability, may be applied to invalidate arbitration agreements without contravening” the FAA’ or California law.” Id. at 125; accord AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.

“Unconscionability analysis begins with an inquiry into whether the contract is one of adhesion. [Citation.] ‘The term [contract of adhesion] signifies a standardized contract, which, 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.’ [Citation.] If the contract is adhesive, the court must then determine whether ‘other factors are present which, under established legal rules—legislative or judicial—operate to render it [unenforceable].’” Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113. 113.

To declare an agreement unenforceable, a court must find both procedural and substantive unconscionability. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power; substantive unconscionability looks at overly harsh or one-sided results. Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243; see also OTO, L.L.C., supra, 8 Cal.5th at 129-30. “[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.” Armendariz, supra, 24 Cal.4th at 114. Plaintiff bears the burden to demonstrate that the arbitration agreement is procedurally and substantively unconscionable. Sanchez v. Carmax Auto Superstores California, LLC (2014) 224 Cal.App.4th 398, 402.

Procedural Unconscionability

Plaintiff states he was required to sign the Agreement and could not negotiate its terms. ROA 45 ¶¶ 4-5. Defendant disputes that the Agreement was a condition of employment and its Chief People Officer, Rebecca Seiler, states “Far West team members have opted out of the arbitration agreement in the past.” ROA 22 ¶ 9. What positions these “team members” had within the company and how they opted out of the Agreement is unclear. The Agreement itself is silent regarding the ability and method(s) to opt-out of it. Accordingly, for purposes of the analysis, the court will assume, consistent with plaintiff’s testimony, that assent to the Agreement was required.

A mandatory arbitration agreement exhibits at least a modest degree of procedural unconscionability. See Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1145 (procedural unconscionability presumptively low absent evidence the defendant actively interfered with plaintiff’s ability to review and understand the arbitration clause).

Plaintiff also argues procedural unconscionability on the basis of oppression. 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) the employee’s education and experience; and (5) whether the employee had legal assistance. OTO, supra, 8 Cal.5th at 126-27. Here, plaintiff provides no facts or authority that support this argument. For example, plaintiff does not say he was rushed in his review of it or pressured to sign it, the Agreement consists of three short paragraphs on a single page, it was presented in both English and Spanish, and it is written in plain, non-technical language that is easily understandable.

Additionally, it is irrelevant to enforceability whether the Agreement was explained, read, or understood. Randas v. YMCA of Metro. Los Angeles (1993) 17 Cal.App.4th 158, 163 (“one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it.” Plaintiff has thus failed to establish any amount of oppression.

Accordingly, taken together, the characteristics of the Agreement demonstrate, at most, a finding of low procedural unconscionability based on its assumed mandatory nature.

Substantive Unconscionability

Plaintiff argues the Agreement is substantively unconscionable because it lacks mutuality, is indefinite in duration, overbroad in scope, and bars collective and representative claims. None of these arguments have merit.

As noted above, substantive unconscionability examines the fairness of a contract’s terms to ensure that a contract of adhesion does not impose terms that are overly harsh, unduly oppressive, or unfairly one-sided. OTO, supra, 8 Cal.5th at 129-30. The court focuses on terms that unreasonably favor the more powerful party, impair the integrity of the bargaining process, contravene public interest or policy, or attempt to impermissibly alter fundamental legal duties. Id. at 130.

1. Mutuality

Plaintiff is incorrect the Agreement lacks mutuality as to the parties subject to its terms. The Agreement covers any claims Company may have against plaintiff or that plaintiff may have against the Company. ROA 22 Ex. 1. “Company” is defined to include defendant Far West and its “related entities, holding companies, parents, subsidiaries, divisions, officers, shareholders, directors, employees, agents, insurers, vendors, contractors, customers, predecessors, successors, and assigns.” Id. This does not implicate the concern in Cook v. University of Southern California (2024) 102 Cal.App.5th 312. Unlike here, the agreement in Cook required the plaintiff to arbitrate her claims against USC and its “related entities” but did not require the “related entities” to arbitrate claims against the plaintiff. Id. at 321-328.

2. Duration

Plaintiff also argues the Agreement applies indefinitely, but the Agreement, unlike that in Cook, does not provide that it survives indefinitely and plaintiff points to no express term or language of the Agreement that so provides. The default rule is that “arbitration agreements that do not specify a term of duration are terminable at will after a reasonable time has elapsed.” Reigelsperger v. Siller (2007) 40 Cal. 4th 574, 580. At any rate, nothing in the Agreement implicates the duration concern in Cook. See Cook, supra, 102 Cal.App.5th at 326 (“The arbitration agreement specifically provide[d] that it will survive unless and until Cook and USC’s president specifically terminate the agreement in a writing, signed by both parties, which expressly mentions the arbitration agreement.”

3. Scope

Plaintiff argues the Agreement is overbroad in scope because it states it applies to “any controversy, claim or dispute.” ROA 22 Ex.

1. However, this language is substantively different from the provision in Cook, which expressly applied to claims “whether or not” they related to plaintiff’s employment. Cook, supra, at 326. The Agreement here says no such thing and the court agrees with defendant that the Agreement is reasonably interpreted to apply only to employment related disputes. See Ayala-Ventura v. Superior Court (2026) 119 Cal. App. 5th 241.

4. Collective and Representative Action Waiver

Plaintiff is incorrect the Agreement may not waive class and PAGA claims. Under the FAA, class action waivers are enforceable and, in such cases, case law provides for the dismissal without prejudice of the class claims. Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612; Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662, 686; Kinecta Alternative Financial Solutions, Inc. v. Superior Court (2012) 205 Cal.App.4th 506, 510-511.

Per Viking River, the FAA allows a PAGA claim to be split into individual and representative portions, which the Agreement expressly provides. ROA 22 Ex. 1; Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906, 1919. Following Viking River, the California Supreme Court held “a plaintiff who files a PAGA action with individual and non-individual claims does not lose standing to litigate the non-individual claims in court simply because the individual claims have been

ordered to arbitration.” Adolph v. Uber Technologies, Inc. (2023) 14 Cal. 5th 1104, 1125. In such cases, the representative PAGA claim should be stayed and the individual PAGA claim should be ordered to arbitration. Both the FAA and California law provide for a stay of proceedings pending arbitration. 9 U.S.C. § 3; C.C.P. § 1281.4.

Based on all of the above, the court finds the Agreement enforceable, notwithstanding its small amount of procedural unconscionability, and plaintiff is ordered to individually arbitrate his claims, including the individual PAGA claim, against defendant. Additionally, the class claims shall be dismissed without prejudice pursuant to the class action waiver. Finally, the action, including the representative PAGA claim, shall otherwise be stayed pending the outcome of arbitration. Adolph v. Uber Technologies, Inc. (2023) 14 Cal. 5th 1104; 9 U.S.C. § 3.

Defendant to give notice.

107 Purcell vs. Motion to Dismiss Potratz Defendants’ Motion to Dismiss is DENIED. Contrary to the court’s prior minute 2019- order (ROA 1189), the proof of service indicates electronic service on plaintiffs’ 01115653 deceased counsel, rather than plaintiffs. ROA 1184, 1185. This ruling is therefore without prejudice, assuming defendants can effectuate proper service of the moving papers.

Defendants to give notice. 108 David Motion to Appoint Receiver [TO BE HEARD 5/15/26 AT Goldman v. 2PM] LBG Real Estate The Court has reviewed all papers submitted in connection with Plaintiff/Judgment Companies, Creditor David Goldman Motion to Appoint Receiver Over Defendant LBG Real LLC Estate Companies, LLC (“LBG REC”), including Interested Third Parties/Objectors Leslie Lundin and Douglas Beiswenger’s objections to 2025- Goldman’s submission of evidence implicating their assertion of attorney-client 01498037 privilege—namely, the amount of attorneys’ fees paid on behalf of Interested Third Parties to their attorneys at Tucker Ellis LLP.

The receiver motion was originally set for hearing on 1/8/2026 in Department C23 of this Court but was reset in this department for 1/29/2029. (ROA #32.) After the moving papers and opposition were filed, Goldman filed an ex parte application, seeking an order (1) permitting this Court to consider newly discovered evidence in connection with the receiver motion; (2) continuing the receiver motion and setting a briefing schedule for the parties to address the new evidence; and (3) finding invalid, pursuant to Code of Civil Procedure section 2031.285, the privilege claim of Interested Third Parties. (ROA #92.)

At the 1/22/2026 hearing on the ex parte, the Court (1) continued the receiver motion to 5/14/2026; (2) ordered the parties to file supplemental briefing on the receiver motion pursuant to Code; (3) permitted the Interested Third Parties to file a brief to object to the evidence and raise the privilege issue; and (4) stated that at the continued hearing