Perez v. Kenai Drilling CA2/1

Filed 7/29/16 Perez v. Kenai Drilling CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOSUE PEREZ, B263458

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC552891) v.

KENAI DRILLING LIMITED,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jane L. Johnson, Judge. Affirmed. Musick, Peeler & Garrett, Philip Ewen, Charles N. Hargraves for Defendant and Appellant. Law Offices of Kenneth H. Yoon, Kenneth H. Yoon, Stephanie E. Yasuda; Justice Law Corporation, Douglas Han, Shunt Tatavos-Gharajeh, Marshall Lurtz for Plaintiff and Respondent. ____________________________

Josue Perez signed a pre-employment agreement with Kenai Drilling Limited (Kenai) that (1) contained an optional yet binding arbitration clause, (2) provided the arbitrator had no power to consider a representative or group action, and (3) provided a 30-day opt-out period. Perez terminated his employment after 12 days, before expiration of the opt-out period. He then filed a representative action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698, et seq.), asserting various Labor Code violations. Kenai petitioned the trial court to compel arbitration, arguing Perez’s claims were subject to individual arbitration. The trial court denied the petition on the ground that as a matter of public policy, an employee’s right to bring a PAGA action cannot be waived, and therefore the arbitration agreement was unenforceable. We agree, and therefore affirm. BACKGROUND Perez worked as a motorman for Kenai from April 8 to April 19, 2014. On April 8, Perez completed a new-hire orientation process, during which he was given an arbitration agreement that provided “any controversy, dispute or claim arising out of or relating to [his] employment with [Kenai], including the termination of employment,” would be subject to binding arbitration. The agreement prohibited representative or group claims by providing that the arbitrator had no authority to “consolidate the claims of different Employees, entertain class actions or representative actions of any kind, or permit joinder.” The agreement gave Perez until May 8, 2014, to opt out, and provided that his failure to opt out by that date would “be deemed acceptance of” the agreement. Also on April 8, 2014, Perez signed an acknowledgment form in which he certified that “a member of Kenai’s management team explained the terms of Kenai’s binding arbitration program, its effective date, and the opt-out procedures,” he “was able to ask any questions that [he] had related to Kenai’s binding arbitration program, its effective date, and the opt-out procedures,” and he understood Kenai’s binding arbitration program was optional. By signing the acknowledgment form Perez also certified he understood that his “failure to follow the appropriate Opt-Out procedures outlined by