Zamano v. ISS Facility Services CA2/6

Filed 12/21/23 Zamano v. ISS Facility Services CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

JUAN ZAMANO, 2d Crim. No. B323210 (Super. Ct. No. 56-2020-00547965) Plaintiff and Respondent, (Ventura County)

v.

ISS FACILITY SERVICES, INC.

Defendant and Appellant.

ISS Facility Services, Inc. (ISS) appeals an order denying its motion to compel arbitration of Juan Zamano’s claims for civil penalties pursuant to the California Labor Code Private Attorneys General Act of 2004 (PAGA). (Lab. Code, § 2698 et seq.)1 We affirm.

1 All statutory references are to the Labor Code unless

otherwise stated.

FACTUAL AND PROCEDURAL HISTORY Zamano was employed by ISS from October 26, 2018, to March 28, 2019. ISS is a nationwide janitorial company and Zamano worked as a custodian at a Thousand Oaks business. At the inception of his employment, Zamano executed a three-page “Mutual Agreement to Arbitrate Claims” (Agreement) drafted by ISS. The Agreement provided that the Federal Arbitration Act (FAA) governed the agreement. The Agreement also stated that, “[e]xcept as otherwise provided in this Agreement,” the Agreement applied to any dispute between the parties: “All disputes covered by this Agreement between EMPLOYEE and EMPLOYER shall be decided by an arbitrator through arbitration and not by way of court or jury trial.” (Boldface omitted.) In relevant part, section 6 of the Agreement provided: “EMPLOYER and EMPLOYEE also hereby waive any right for any dispute to be brought, heard, decided or arbitrated as a representative action (“Representative Action Waiver”). However, this Representative Action Waiver may be severed if it would otherwise render this Agreement unenforceable in any action brought under a private attorneys general law, and following severance the representative action may be brought in a court of law.” In relevant part, section 14 generally provided: “[I]n the event any portion of this Agreement is deemed unenforceable, the unenforceable provision will be severed from the Agreement and the remainder of this Agreement will be enforceable.” On April 24, 2020, Zamano sued ISS and several other related defendants as a representative of the State of California, asserting a single cause of action pursuant to PAGA alleging