Serrano, Rosa Maria vs. The Villa Park Orchards Association

Case No.: VCU332558

Date: August 20, 2026 Time: 8:30 A.M. Dept. 1-The Honorable David C. Mathias Motion: Defendant's Motion to Compel Arbitration Tentative Ruling: To grant the motion; CMC is continued to February 25, 2027: 8:30 am; D1.

Background

Facts In this matter, Plaintiff sues Defendant Villa Park Orchards Association for discrimination, retaliation, failure to prevent discrimination and retaliation, failure to provide reasonable accommodation, failure to engage in interactive process and wrongful termination. Defendant moves to compel arbitration of these claims. The Court previously continued this hearing as to obtaining a certified translation of the agreement at issue. On August 13, 2026, Defendant filed a supplemental declaration sufficiently setting forth the requisite translated documents in compliance with the Rules of Court.

Facts - Agreement to Arbitrate In support, Defendant provides the declaration of its Human Resources Manager. The manager indicates that, in 2022, "I was the one that presented the VPOA Arbitration Agreement and explanation document to Plaintiff. I speak both English and Spanish and had both English and Spanish versions of the arbitration agreement available for Plaintiff to review." (Declaration of Anguiano P.5.) Further that, Plaintiff voluntarily executed the 2022 Arbitration Agreement ("Agreement") on her own behalf. (Declaration of Anguiano P.6.)

Further, the manager indicates the completed Agreement was physically placed in Plaintiff's employee file and that the signature on the Agreement matched other documents in Plaintiff's personnel file. (Declaration of Anguiano P.8.) Declarant attaches a true and correct copy of the Agreement signed by Plaintiff as Exhibit A. (Declaration of Anguiano P.8 - Ex. A.) As noted above, Defendants have provided an English translation of the Agreement as Exhibit C. (Declaration of Benson - Ex. B) In opposition, Plaintiff states "I do not recall ever signing this document.

I also don't recognize the document." (Declaration of Plaintiff P.7.)

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, Defendant's initial burden is met through attachment of Exhibits A and C 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.7.)

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 or that the signature is her own. Therefore, the Court finds an agreement to arbitrate exists.

Facts - Scope of Agreement The Agreement expressly applies to "Any and all disputes, controversies, or claims not resolved in accordance with the foregoing procedures, and which arise out of or relate to this Employee Handbook, your employment, or the termination of your employment..." as well as "...any issue regarding the applicability of or any alleged breach of this Employee Handbook or any purported employment contract or agreement, and/or any dispute or claim arising out of the relationship (or the nature of the relationship), or the commencement or termination of the relationship--including, but not limited to, claims for violation of a state or federal statute, and/or for breach of contract, breach of an implied contract or covenant of good faith and fair dealing, wrongful termination, or intentional infliction of emotional distress, defamation, invasion of privacy, interference with advantageous or contractual relations, conspiracy, or other tort claims of any kind.

Claims for discrimination, harassment, and/or retaliation arising under Title VII of the Civil Rights Act of 1964 (as amended, 42 U.S.C. Sec.Sec. 2000e et seq.), the California Fair Employment and Housing Act (California Government Code Sec.Sec. 12940-12950), the California Labor Code, and the Age Discrimination in Employment Act (29 U.S.C. Sec. 623) are subject to the provisions of this Arbitration Agreement."

Authority and Analysis - Scope of Agreement Based on the claims pled in the complaint as to discrimination, retaliation and other FEHA claims, as well as wrongful termination, the Court finds the claims at issue here are within the scope of the Agreement.

Facts - FAA Application Defendant's manager further states "Plaintiff worked in a packing facility as a grader. Plaintiff worked with various types of citrus products. Plaintiff's job was to ensure that the citrus products that VPOA packed met the VPOA standards to be packed as a final product. All of the citrus fruit that VPOA packs and which Plaintiff graded originates and is grown in California." (Declaration of Anguiano P.9.) Further, that: "VPOA affects interstate commerce in several ways.

As a cooperative, VPOA supports several businesses that operate in interstate commerce, including farms that utilize items like fertilizers and machinery that come from all over the United States. VPOA also supports those businesses that operate in interstate commerce by sorting, grading, and packing the citrus products. The California agriculture market supports commerce across the United States and feeds Americans all over. The citrus products that VPOA packs are distributed to stores that also operate in interstate commerce and sell other products from across the Country.

Some of the VPOA citrus products are later sold to other states by an intermediary marketing company. As a grader working in the packing warehouse, Plaintiff worked directly with the citrus products that are later consumed by Americans all over." (Declaration of Anguiano P.10.)

Finally, that "Although Plaintiff's job duties undoubtedly affected interstate commerce, Plaintiff's job duties did not involve any transportation of any goods. Plaintiff was not part of the shipping or receiving process, did not cross any state lines, and did not have any transportation duties. Rather, Plaintiff affected interstate commerce by supporting other business that operate in interstate commerce by grading the citrus products which later went to market and were later distributed to other customers across the United States. Plaintiff's job duties were exclusively within the State of California." (Declaration of Anguiano P.11.)

In opposition, Plaintiff states "Up until 2006, I worked in VPOA's facility in Orange, California. Around 2006, the company moved to Strathmore, and I worked exclusively at the facility in Strathmore, California. During my 42 years of employment with VPOA, I never had to travel outside of the State for my work. I did not transport any goods or services as part of my job for VPOA. My employment with VPOA related exclusively to local operations in Strathmore after 2006, and in Orange prior to that. I had no contact with anyone outside of the State in connection with my work functions." (Declaration of Plaintiff P.4.)

Authority and Analysis - FAA Application "The FAA applies to contracts that involve interstate commerce (9 U.S.C. Sec.Sec. 1, 2)" (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) 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) 148 Cal.App.4th 1092, 1101)

An arbitration clause is governed by the FAA if the agreement is a contract "evidencing a transaction involving commerce." (9 U.S.C. Sec. 2.) "[E]videncing a transaction involving commerce" means that "the 'transaction' in fact 'involv[es]' interstate commerce, even if the parties did not contemplate an interstate commerce connection." (Allied-Bruce Terminix Companies v. Dobson (1995) 513 U.S. 265, 281.) This phrase is "broadly construe[d]" because the FAA "embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause." (Giuliano v. Inland Empire Pers., Inc. (2007) 149 Cal.App.4th 1276, 1286.)

There are three categories of conduct that Congress may regulate under its commerce power: " (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce." (Shepard, supra, 148 Cal.App.4th at 1098, citing United States v. Lopez (1995) 514 U.S. 549, 588-589.) Therefore, the FAA applies where an employer sells and distributes products out of state and where the employee's work forms part of that process. (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 246.)

Here, Defendant's declarant states: "The citrus products that VPOA packs are distributed to stores that also operate in interstate commerce and sell other products from across the Country. Some of the VPOA citrus products are later sold to other states by an intermediary marketing company. As a grader working in the packing warehouse, Plaintiff worked directly with the citrus products that are later consumed by Americans all over." This is sufficient to affect interstate commerce under the standard above.

Although Plaintiff's memorandum in opposition argues that these statements are self serving, lack foundation and conclusory, no objection to the declaration has been made. The Court finds the declaration sufficiently specific, within the personal knowledge of the manager and that Defendant need not offer information more specific than what has been provided to the Court. Further, Plaintiff's lack of travel outside the state or that she has not personally transported goods are irrelevant under the standards set forth above.

Therefore, the Court finds the FAA applies.

Facts - Defenses to Enforcement - Unconscionability As to procedural unconscionability, Plaintiff notes the adhesive nature of the Agreement, no meaningful opportunity to review and that Plaintiff was surprised by the contents of the Agreement based on the presentation of the Agreement. As to substantive unconscionability, Plaintiff argues the Agreement lacks mutuality, there is an unlawful cost-shifting and fee burden imposed on Plaintiff, contains an unlawful attorney fee shifting, waiver of PAGA claims, and fails to include arbitration provider procedures,

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. (Declaration of Plaintiff P.P.6-12.) The Court finds a medium 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. 5 th 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 4 th at 102-113, 117-118.)

Mutuality Here, the Agreement states "This provision shall apply to any and all such disputes, controversies, or claims, whether directed against the Company and/or against any employee, officer, executive, representative, alleged agent, director, or affiliate of the Company, with respect to any matter pending regarding your employment or the termination thereof." This phrase is reasonably interpreted to apply to Plaintiff's claims against Defendant, but lacks terms which would apply to Defendant's disputes with Plaintiff or other employees.

On balance, the Agreement states "Any and all disputes, controversies, or claims not resolved in accordance with the foregoing procedures, and which arise out of or relate to this Employee Handbook, your employment, or the termination of your employment, shall be resolved through binding arbitration" without limitation as to which party has the dispute or claim. Further, the Agreement carves out that either party may seek injunctive relief. Additionally, the Agreement states "The arbitration provisions of this Agreement shall constitute the sole and exclusive remedy, and each party (and all interested parties) waives any right it may otherwise have to seek redress in any other forum, including a jury trial" which indicates mutuality.

The Agreement finally states "Any claim which either party has against the other party which could be submitted for resolution pursuant to this paragraph must be presented in writing by the claiming party to the other in accordance with applicable State or Federal statutes of limitation." As such, the Court does not find a lack of mutuality and finds no substantive unconscionability as to this term.

Cost Shifting The Agreement states "The Company shall pay the costs of the impartial arbitrator and a transcript of the entire arbitration process. Each party shall bear the costs of its own witnesses." Plaintiff argues that, if this matter remains in this Court, Plaintiff would bear only the minimal subpoena costs to call witnesses to testify and that this impermissibly requires Plaintiff to bear all expenses of witnesses beyond such subpoena costs. The Court, however, does not find that these witness fees, including retaining of Plaintiff's own experts, would be costs beyond those incurred in litigation before this Court. Therefore, the Court does not find any substantive unconscionability regarding the bearing of Plaintiff's own witness costs.

Attorneys' Fees Plaintiff argues that the term "Should any litigation be necessary to enforce the terms of this Arbitration Agreement or should any legal action--even if prohibited--arise with respect to this Arbitration Agreement, the prevailing party shall be entitled to reasonable attorney's fees and to any other relief to which it may be entitled" is substantively unconscionable because FEHA claims provide that a prevailing defendant may recover fees and costs if the action is "frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." (Gov. Code Sec. 12965, subd. (c)(6)) The Court finds this term substantively unconscionable given the requirement under FEHA for a defendant to recover such fees only where "frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so."

PAGA Waiver Here, the Agreement states "Employees are expressly prohibited from filing or participating in any joint, class, representative, or collective claim regarding their wages, hours, or other terms and conditions of employment against the employer in any forum, whether arbitral or judicial. This voluntary waiver includes claims under the Private Attorneys General Act (PAGA), to the extent permitted by law." To start, the Court notes "[t]here 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 such, the Court will utilize this terminology for clarity.

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, Type A and representative or non-individual Type O 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" (Type A) is the claim for the violations suffered by the aggrieved employee and the "representative PAGA claim" (Type O) 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 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.)

Further, it is irrelevant that Plaintiff here does not assert any claims under PAGA, as the Agreement is reviewed of substantive unconscionability at the time it was entered into and is not dependent upon the claims asserted. (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 882.) The Agreement makes no attempt to evidence an intent to split PAGA claims into Type A "individual" claims and Type O "representative" claims. Rather, the term attempts to impermissibly waive all PAGA claims in any forum.

In Mondragon, the carve out provision excluded claims brought "as a representative of the state of California as a private attorney general under the Private Attorney General Act of 2004 (PAGA; Lab. Code, Sec. 2698 et seq.)" and the trial court denied the motion to compel Plaintiff's causes of action under PAGA to arbitration. (Id. at 599-601.) Therefore, the Court finds the PAGA waiver substantively unconscionable.

Rules of Arbitration The Agreement states "The arbitration will be conducted in accordance with the rules of the arbitration association or service with which the arbitrator is selected (American Arbitration Association, JAMS, ARS, or the rest)." Plaintiff further notes references to an employee handbook within the Agreement itself. The California Supreme Court in Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246 noted that a failure to attach a copy of the arbitration rules becomes an issue only where the plaintiff challenges the rules themselves. There appears to be no challenge the AAA, JAMS or other arbitration rules. The Court does not find that the failure to link or otherwise include the rules demonstrate substantive unconscionability. Further, the various stray references to a handbook within the Agreement do not demonstrate substantive unconscionability.

Severability Courts have discretion to sever unconscionable clauses and enforce the remainder of the contract. (Civ. Code, Sec. 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 1244.) There is a strong preference for courts to sever unconscionable provisions unless unconscionability permeates the entire agreement. (De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 492.) However, if "the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced." (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 124.) But if "the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate." (Id.)

Here, the Agreement states "In the event that one or more of the provisions contained herein are deemed unlawful or unenforceable, such unlawfulness or unenforceability shall not affect any other provision; rather, the terms set forth herein shall be interpreted as if the unlawful provision had never existed in this document." Therefore, the Court will strike both the attorney fee clause and impermissible PAGA waiver noted above. Having struck those terms, the Court finds a lack of substantive unconscionability.

Labor Code section 432.6 Labor Code section 432.6 does not invalidate an arbitration agreement otherwise enforceable under the FAA. Labor Code section 432.6 states, in part: "[n]othing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act..." (Labor Code Sec.432.6(f)). Further, after rehearing, the Ninth Circuit concluded that "the FAA preempts AB 51 as whole to the extent it applies to arbitration agreements." (Chamber of Commerce of the United States v. Bonta (9th Cir. 2023) 62 F.4th 473, 490.)

Discovery / Evidentiary Hearing The requests for additional discovery and/or an evidentiary hearing on this matter are denied. The issues here are not similarly situated to those in, for example, Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754 as to fraud in the execution. Therefore, the Court grants the motion and compels arbitration of these claims.

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: Sams Gas & Food, Inc. vs. Ahmed, Shaibi