Lumbo v. Kelly Services Global CA4/1

Filed 8/21/24 Lumbo v. Kelly Services Global CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROMEO LUMBO, D082740

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2022- 00049230-CU-OE-CTL) KELLY SERVICES GLOBAL, LLC,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Duane Morris, Shireen Y. Wetmore and Eden E. Anderson for Defendant and Appellant. Mashiri Law Firm and Alex Asil Mashiri; The Jami Law Firm and Tamim Jami for Plaintiff and Respondent. Kelly Services Global, LLC appeals from an order denying its motion to compel arbitration of a Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.; PAGA) action brought by a former employee, Romeo Lumbo. Kelly moved to compel arbitration of Lumbo’s individual PAGA claims pursuant to a written arbitration agreement. The trial court denied Kelly’s

motion because the complaint did not allege any individual PAGA claims and there was nothing to compel to arbitration. We conclude the trial court erred when it determined Lumbo’s complaint did not allege any individual PAGA claims. Nevertheless, we agree with the court that Lumbo’s individual PAGA claims were not subject to arbitration, although for a different reason: because those claims were excluded by the parties’ arbitration agreement. The agreement’s “waiver” provision, which carves out “any form of a . . . representative proceeding,” precludes arbitration of Lumbo’s individual PAGA claims. Because the parties’ agreement to arbitrate does not encompass Lumbo’s individual PAGA claims, the court did not err in finding there was nothing to arbitrate. We affirm the trial court’s order denying Kelly’s motion to compel arbitration. I. Kelly is a temporary staffing agency that supplies labor to companies in California. Lumbo is a former nonexempt employee of Kelly. In connection with his employment, Lumbo signed an agreement to arbitrate “all common- law and statutory claims relating to [his] employment.” The agreement contained a provision titled, “Waiver of Class and Collective Claims.” Under this provision, the parties agreed that “all claims subject to this agreement will be arbitrated only on an individual basis,” and they “waive the right to participate in or receive money or any other relief from any class, collective, or representative proceeding.” The parties further agreed, “No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under this agreement may . . . arbitrate any form of a class, collective, or representative proceeding.” The agreement also has a “Savings Clause & Conformity Clause” that requires provisions that conflict with applicable law to be displaced and, if