Venegas v. The Pep Boys etc. CA2/1

Filed 7/30/14 Venegas v. The Pep Boys etc. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LESLIE VENEGAS, B249579

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC496327) v.

THE PEP BOYS MANNY MOE & JACK OF CALIFORNIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. John Shepard Wiley, Judge. Affirmed. ______ Morgan, Lewis & Bockius, John S. Battenfeld, and Thomas M. Peterson for Defendant and Appellant. Capstone Law, Glenn A. Danas, and Ryan H. Wu for Plaintiff and Respondent. ______

Defendant The Pep Boys Manny Moe & Jack of California (Pep Boys) appeals from the superior court’s order denying Pep Boys’ motion to compel arbitration. The sole issue presented on appeal is the enforceability of a waiver of the right to bring a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). That issue has recently been resolved against Pep Boys by the Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (June 23, 2014, S204032) __ Cal.4th __ (Iskanian). We therefore affirm. Plaintiff Leslie Venegas alleges that she was employed at a Pep Boys store from August 2008 to October 2012. In December 2012, she filed suit against Pep Boys “individually and in a representative capacity,” alleging a single claim under the PAGA for numerous alleged violations of the Labor Code. Pep Boys moved to compel individual arbitration of Venegas’s claim. In November 2011, Venegas entered into an arbitration agreement “[i]n return for [her] employment with [Pep Boys] . . . and/or as consideration for such employment.” The arbitration agreement applies to any claim “directly or indirectly related to [Venegas’s] employment with [Pep Boys], [and] the terms and conditions of [that] employment.” The arbitration agreement also includes the following waiver of the right to bring class or representative actions: “To the maximum extent permitted by applicable law, the parties agree that no Covered Claims may be initiated or maintained on a class action, collective action or representative action basis either in court or arbitration. All claims must be brought in a party’s individual capacity, and not as a plaintiff or class representative or member or otherwise on behalf of others in any purported class, collective, or representative proceeding. The parties further agree that if, for any reason, the waiver of any ability to initiate or maintain a claim as a class, collective or representative action is found to be unenforceable or invalid, then any such class, collective or representative action claim shall be litigated and decided in a court of competent jurisdiction, and not in arbitration. Any issue concerning the enforceability or validity of this waiver must be decided by a court, and not by an arbitrator.” The arbitration agreement also includes a