Ybarra v. Apartment Investment and Management Co. CA2/2

Filed 10/7/14 Ybarra v. Apartment Investment and Management Co. CA2/2 Opinion on remand NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

REYNA MARIE YBARRA, B245901

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC480377) v.

APARTMENT INVESTMENT AND MANAGEMENT COMPANY,

Defendant and Appellant.

APPEAL from an order by the Superior Court of Los Angeles County, Yvette M. Palazuelos, Judge. Affirmed.

Call & Jensen, Julie R. Trotter, Melinda Evans; Holland & Hart, John M. Husband and Christina Gomez for Defendant and Appellant.

Lawyers for Justice, Edwin Aiwazian, Arby Aiwazian, Jill J. Parker, D. Elliot Gonzalez; Shenkman & Hughes, Kevin Shenkman; Gezoukian Law and Peter Gezoukian for Plaintiff and Respondent.

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Per order of the California Supreme Court, we have vacated and reconsidered our prior opinion in this case, filed March 13, 2014, in light of Iskanian v. CLS Transportation of Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian). Plaintiff and respondent Reyna Marie Ybarra (Ybarra) filed a representative claim for civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) against her former employer, defendant and appellant Apartment Investment and Management Company (Aimco). The parties’ employment arbitration agreement contains a provision prohibiting either party from bringing class and representative actions. Aimco brought a motion to compel arbitration of Ybarra’s PAGA claim on an individual basis. The trial court found the waiver provision unconscionable and unenforceable, and denied the motion to compel arbitration. Aimco appealed. In our prior opinion, we reversed the trial court’s order denying Aimco’s motion to compel arbitration. Following Iskanian, we now affirm. FACTUAL AND PROCEDURAL BACKGROUND After briefly working for and being fired by Aimco in 2002, Ybarra was rehired in January 2011, to work as a community manager for one of Aimco’s apartment communities in Los Angeles. She was fired less than a year later in December 2011. Upon commencement of Ybarra’s second period of employment, the parties signed an arbitration agreement, providing that “Any Claim . . . shall be resolved by BINDING ARBITRATION ONLY, and NO COURT ACTION MAY BE BROUGHT BY EMPLOYEE or the Company to resolve any Claim.” The agreement defines “Claim” as “any dispute, matter, controversy, demand, action, cause of action, or claim of any kind whatsoever by Employee or the Company relating to, arising out of, in connection with, or involving Employee’s employment or termination of employment, whether for damages or for other legal or equitable relief, and whether arising under federal, state, or local law.” The agreement further provides: “[A]ny class action, collective action, and/or other procedure for consolidation or joinder of Claims of multiple parties is prohibited. No arbitrator acting hereunder shall have the power to decide any class, collective, joined or consolidated claims. No Party to this Agreement