CIPRES v. ARYZTA, LLC
MOTION BY SELECT STAFFING TO COMPEL INDIVIDUAL ARBITRATION, DISMISS CLASS CLAIMS, AND STAY ALL CIVIL COURT PROCEEDINGS
TENTATIVE RULING
Grant motion to compel arbitration of Plaintiff?s claims, with the exception of the PAGA claim; grant motion to dismiss class claims; stay litigation of PAGA claim, pending completion of the arbitration
DISCUSSION
I. Background
In this putative wage-and-hour class action, Plaintiff Bernabe Cipres sued his former employers, Defendants Aryzta, LLC (?Aryzta?) and Real Time Staffing Services, LLC d/b/a Select Staffing (?Select Staffing?), for various wage and hour violations. Plaintiff alleges that Defendants have had consistent policies of failing to pay wages, including overtime wages; failing to provide Plaintiff and similarly situated employees/former employees rest periods of at least 10 minutes per four hours worked or major fraction thereof (and failing to provide compensation for such unprovided rest periods); failing to pay Plaintiff and other similarly situated employees the full amount of their wages owed them upon termination and/or resignation. [Complaint, ??2-4.] Plaintiff alleges claims against the Defendants for failure to pay overtime wages; failure to pay minimum wages; failure to provide rest periods; failure to pay all wages upon termination; failure to provide accurate wage statements; and unfair competition in violation of Business & Professions Code ??17200, et seq.
Defendants Aryzta and Real Time have filed separate petitions to compel Plaintiff to arbitrate his claims. Defendants also seek an order dismissing the class claims, and staying all civil court proceedings pending completion of the arbitration.
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II. Request for Judicial Notice
Defendant Select Staffing request is granted as to each exhibit pursuant to Evidence Code ?452(d). These orders are all records of California courts, and are subject to judicial notice under this section. However, none of these orders is binding on the Court, and the Court will independently assess the enforceability of the arbitration agreement.
III. Evidentiary Objections to Declaration of Joshua Gleason
Plaintiff has lodged objections to the Declaration of Joshua Gleason, submitted by Defendant Select Staffing in connection with the motion to compel arbitration. The Court?s rulings follow:
1. ?6, fn.1: Overruled.
2. ?10, l.20-24: Overruled.
3. ?11, l.1-2: Overruled.
4. ?11, l.2-4: Overruled.
5. ?11, l.6-8: Overruled.
6. ?11, l.8-11: Overruled.
7. ?11, l.11-13: Overruled.
8. ?11, l.13-14: Overruled.
9. ?12, l.15-16: Overruled.
III. Motion to Compel Arbitration
a. Applicability of FAA
The FAA provides for enforcement of arbitration provisions in any contract ??evidencing a transaction involving commerce.?? California Practice Guide, Alternative Dispute Resolution, ?5:50 (The Rutter Group 2015) (citing 9 USC ?2; Rent-A-Center West, Inc. v. Jackson (2010) 130 S.Ct. 2772, 276; Rogers v. Royal Caribbean Cruise Line (9th Cir. 2008) 547 F.3d 1148, 1153-1154).
The term ?involving commerce? is functionally equivalent to ?affecting commerce? and ?signals an intent to exercise Congress? commerce power to the full.? California Practice Guide, Alternative Dispute Resolution, ?5:50.1 (The Rutter Group 2014) (citing Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 U.S. 265, 277 (emphasis added by Rutter Guide).
The words ?evidencing a transaction? ?mean only that the transaction must turn out, in fact, to involve interstate commerce. i.e., the parties need not have intended any interstate activity when they entered into the contract.? California Practice Guide, Alternative Dispute Resolution, ?5:50.2 (The Rutter Group 2015) (citing Allied-Bruce Terminix Cos., Inc. v. Dobson, supra, 513 U.S. at 277; Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1097). Additionally, the dispute need not arise from the particular part of the transaction involving interstate commerce. The FAA applies if the underlying transaction as a whole involved interstate commerce. Shepard v. Edward Mackay Enterprises, Inc., supra, 148 Cal.App.4th at 1101. A party seeking to enforce an arbitration agreement has the burden of showing FAA preemption. See Lane v. Francis Capital Management, LLC (2014) 224 Cal.App.4th 676, 687 (citing Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 211).
Here, Defendant Select Staffing has submitted the Declaration of Joshua Gleason, Director of Human Resources for EmployBridge (the parent company of Defendant Select Staffing). Gleason states that Select Staffing is a staffing company with over 120 offices in 21 states. It provides temporary staffing for approximately 6,500 companies throughout the United States in any given week. [Gleason Decl., ?4.] Based on the statements in the Gleason Declaration, it is evident that Defendant Select Staffing is involved in interstate commerce. As such, the FAA applies to the agreement.
b. Agreement to Arbitrate
As the party moving for arbitration, the burden is on Defendant Select Staffing to prove, by a preponderance of the evidence, that an agreement to arbitrate exists between itself and Plaintiff Cipres.
The Mutual Agreement Regarding Arbitration and Class Claims (the ?Agreement?) was part of Defendant?s online application. Mr. Gleason notes that to submit an online application, an applicant must go to the Select Staffing website, fill out personal information such as their name, date of birth, contact information, social security number, and job history. [Gleason Decl., ?6.] According to Gleason, some personal information is required, and some is optional; some segments, such as the ?Legal acknowledgments? section, require the applicant to place their e-signature in the form of their initials in order to complete the application. [Id.] However, Gleason states the ?Mutual Agreement Regarding Arbitration and Class Claims? portion is voluntary, and the application form does not require applicants to initial this provision in order to complete the application. [Id.]
Gleason notes that Select Staffing makes the application and specifically, the Agreement, available in both English and Spanish by clicking a link. [Gleason Decl., ?7.] Applicants are asked to e-sign and date the end of the online application, verifying that all the information contained in the application is true and correct. [Gleason Decl., ?8.] The e-signature, which is separate and apart from other e-signatures in other sections of the application, is required to complete the application. [Id.] Once the information is submitted online by the applicant, it is electronically date and time stamped and it is immediately sent to the Select Staffing database. [Id.] Once completed, Select Staffing cannot change the information contained in the application. [Id.] The applicant then receives confirmation that his or her application has been submitted. [Id.]
While Plaintiff has objected to the Gleason Declaration?s statements with respect to the Agreement, and while Plaintiff claims that he never entered into the Agreement, the evidence before the Court is to the contrary. As discussed supra, the Court overrules all objections to the Gleason Declaration, since his statements lay a proper foundation for the existence of the agreement and the means by which the agreement at issue was submitted.
Turning to the actual agreement itself, Exhibit F to the Defendant?s Appendix of Evidence contains the applicable arbitration agreement. The ?Mutual Agreement Regarding Arbitration and Class Claims? section provides in pertinent part as follows:
MUTUAL AGREEMENT REGARDING ARBITRATION AND CLASS CLAIMS
In case of a dispute between the Employer and me regarding, arising from, or related to my employment or to the termination of my employment, which my Employer and I cannot solve informally through direct dispute, regardless of the type or kind of dispute, the Employer and I hereby agree to submit such claims or disputes to final and binding arbitration in accordance with the National Rules for Employment Dispute Resolution of the American Arbitration Association in the state of employment. Such disputes may include, among others, claims for or under: breach of contract; fraud; misrepresentation; defamation; personal injury; salary; wages, wrongful termination; vacation pay, sick pay; overtime pay; the Federal Labor Standards Act and comparable state laws; the Civil Rights Act of 1964, as amended; Title 42 U.S.C. ?1981; the Americans with Disabilities Act; laws prohibiting discrimination based on religion, sex, age, race, national origin, physical impairment, disability, medical condition, marital status, or other basis; the Family and Medical Leave Act; the Employee Retirement Income Security Act (ERISA); and state laws regarding unfair competition or unfair business practices?. [See Defendant?s Exhibit F.]
The letters ?BC? appear after this provision, which are the initials of Plaintiff Cipres. As noted above, Mr. Gleason says that applicants are asked to e-sign and date the end of the online application, verifying all of that information contained in the application is true and correct. [Gleason Decl., ?8.] Once the information is submitted online by the applicant, it is electronically date and time stamped and it is immediately sent to the Select Staffing database. [Id.] Once completed, Select Staffing claims it cannot change the information contained in the application, and the applicant receives confirmation that his/her application has been submitted. [Id.]
Gleason says that Plaintiff indicated he read, authorized, and consented to the ?MUTUAL AGREEMENT REGARDING ARBITRATION AND CLASS CLAIMS? by placing his initials ?BC? at the end of this portion of the application. [Gleason Decl., ?11.] At the end of the application, Plaintiff entered his name ?Bernabe Cipres? and entered the date, January 21, 2013, to indicate that he certified the information contained in the application was true and correct and that he read and understood all statements contained in the application, [Id.] Notably, the Uniform Electronic Transaction Act mandates that an electronic signature has the same legal effect as a handwritten signature. Civil Code ?1633.7(a) provides that ?[a] record or signature may not be denied legal effect or enforceability solely because it is in electronic form.? Subsection (d) states that ?[i]f a law requires a signature, an electronic signature satisfies the law.? Civil Code ?1633.7(d).
Here, based on this evidence, there is an agreement to arbitrate between Plaintiff Cipres on the one hand and Select Staffing on the other. Plaintiff agreed to arbitrate disputes in arbitration ?regardless of the type or kind of dispute.? A non-exhaustive list of those types of claims or controversies subject to arbitration is set forth within the arbitration agreement, as set forth supra.
Plaintiff argues that Defendant failed to satisfy its burden of proof, and that Defendant failed to submit any admissible evidence to prove the existence of a written agreement to arbitrate. However, the Gleason Declaration adequately sets forth a foundation for the agreement and the online application process.
Plaintiff argues there must be a ?voluntary? agreement to arbitrate, and that Plaintiff has denied the existence of such an agreement. Again, however, the evidence before the Court shows that there was an agreement to arbitrate. For these reasons, the Court determines that an agreement to arbitrate exists between Select Staffing and Plaintiff.
c. Unconscionability
Alternatively, Plaintiff argues that the arbitration agreement is unconscionable. Unconscionability in the arbitration context is something that denies ?minimum levels of integrity? to the process. Graham v. Scissor-Tail (1981) 28 Cal.3d 807, 820. ?[U]nconscionability has both a ‘procedural’ and a ‘substantive’ element,” the former focusing on ” ‘oppression’ ” or ” ‘surprise’ ” due to unequal bargaining power, the latter on ” ‘overly harsh’ ” or ” ‘one-sided’ ” results.? Armendariz v. Foundation Health Psychcare Servs. (2000) 24 Cal.4th 83, 114. If both elements of unconscionability are present, the Court must decline to enforce the arbitration agreement. Id. The Armendariz court also noted, however, that substantive and procedural unconscionability need not be present to the same degree, and that a ?sliding scale? is invoked (i.e., the more substantively unconscionable the contract term, the less evidence of procedural unconscionability need be shown, and vice-versa). Id.
Parties opposing arbitration have the burden to prove any fact necessary to a defense to enforcement. Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579. In this case, the burden to demonstrate unconscionability falls on Plaintiff Palacios.
At the outset, AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740 does not preempt Armendariz and its ?benchmarks? on unconscionability. Armendariz has not been overturned or superseded.
Moreover, Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 held that ?after Concepcion, unconscionability remains a valid defense to a petition to compel arbitration.? Sonic-Calabasas A, Inc., 57 Cal.4th at 1142 (emphasis added). Concepcion itself has recognized that the FAA ?permits arbitration agreements to be declared unenforceable ?upon such grounds as exist at law or in equity for the revocation of any contract.?? Concepcion, 131 S.Ct. at 1746 (citing 9 U.S.C. ?2). Such grounds for revocation under 9 U.S.C. ?2?s saving clause include ?generally applicable contract defenses, such as fraud, duress, or unconscionability[.]? Id. at 1746.
Thus, Concepcion specifically preserved state law defenses to arbitration agreements, so long as the defense did not invalidate a particular type of arbitration agreement (i.e., arbitration agreements appearing in employment contracts). Accordingly, the Armendariz factors remain applicable with respect to the unconscionability analysis.
(1) Procedural Unconscionability
?The procedural element focuses on two factors: ?oppression? and ?surprise.? [Citations.] ?Oppression? arises from an inequality of bargaining power which results in no real negotiation and ?an absence of meaningful choice.?[Citations.] ?Surprise? involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.? A & M Produce Co. v. FMC Corp. (1982) 135 Cal. App. 3d 473, 486. When the weaker party is presented the clause and told to “take it or leave it” without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present. Kinney v. United HealthCare Services, Inc. (1999) 70 Cal. App. 4th 1322, 1329; see also Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.
Plaintiff contends that the agreement is procedurally unconscionable on grounds that it is both oppressive and contains an element of surprise. Here, Plaintiff was presented the arbitration agreement as a condition of employment. While this and of itself is not reason to find the agreement invalid (see Sonic-Calabasas, supra, 57 Cal.4th at 1124-1125), it is clear that there was a disparity in bargaining power between Plaintiff and Defendant Aryzta, and there was no meaningful choice in Plaintiff signing the agreement. The agreement was essentially presented on a take-it-or-leave-it basis, and as such, procedural unconscionability was present. Szetela v. Discovery Bank (2002) 97 Cal.App.4th 1094, 1100; Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 114. The agreement represents a contract of adhesion. Procedural unconscionability is therefore present.
Plaintiff further contends the arbitration agreement is procedurally unconscionable because Select Staffing allegedly did not provide Plaintiff a copy of the National Rules for Employment Dispute Resolution of the American Arbitration Association. While some cases suggest that the failure to provide a copy of the arbitration rules in advance is evidence of procedural unconscionability (see Samaniego, supra, 205 Cal.App.4th at 1146; Zulo v. Sup.Ct. (Inland Valley Publishing Co.) (2011) 197 Cal.App.4th at 485-486), more recent cases suggest that incorporation of rules without attaching them is not evidence of procedural unconscionability. See Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1469-1472; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737. Here, the actual rules were not provided, but they were referenced in the arbitration provision. Since the recent case trend has been to find that references to the rules governing the arbitration is permissible without providing a copy of those rules (so long as the rules are easily accessible), this is not grounds of procedural unconscionability.
With respect to surprise, Plaintiff again argues that he was never presented with the agreement, and that it was not until this litigation that Plaintiff saw the online application containing the agreement for the first time. Plaintiff?s claims of surprise, however, are belied by Plaintiff?s completion of the online application and his initials next to the arbitration provision (as well as Mr. Gleason?s statements discussed supra regarding the submission of Plaintiff?s online application). Further, the arbitration provision, while not a separate agreement, appears under a different heading, and is otherwise conspicuous. As such, there was not any surprise present. Accordingly, the Court determines that while there was no surprise present, there was oppression present, given this was a contract of adhesion presented on a ?take it or leave it? basis. As such, Plaintiff has demonstrated the agreement is procedurally unconscionable to a small degree.
(2) Substantive Unconscionability
?No precise definition of substantive unconscionability can be proffered. Cases have talked in terms of ?overly harsh? or ?one-sided? results. [Citations.] One commentator has pointed out, however, that ?. . . unconscionability turns not only on a ‘one-sided’ result, but also on an absence of ‘justification’ for it.? [citation], which is only to say that substantive unconscionability must be evaluated as of the time the contract was made. [Citation.] The most detailed and specific commentaries observe that a contract is largely an allocation of risks between the parties, and therefore that a contractual term is substantively suspect if it reallocates the risks of the bargain in an objectively unreasonable or unexpected manner.? A & M Produce Co. v. FMC Corp., supra, 135 Cal. App. 3d at 487.
Further, pursuant to Armendariz and a line of other authorities, claims brought under the Fair Employment and Housing Act (FEHA) are subject to arbitration if there are provisions for arbitrator neutrality, discovery, written decisions, and expense limits. O’Hare v. Municipal Resource Consultants (2003) 107 Cal. App. 4th 267, 273; Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal. App. 4th 708, 716; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 96-121; Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 422-23; Blake v. Ecker (2001) 93 Cal.App.4th 728, 433, overruled in part on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094. This rule has also been extended to non-FEHA employment claims. Mercuro v. Sup. Ct. (2002) 96 Cal. App. 4th 167, 180 n. 26 (Armendariz scrutiny also applies to non-FEHA employment claims).
Turning to the Armendariz ?substantive unconscionability? benchmarks, the agreement states that the arbitration is to be conducted under the National Rules for Employment Dispute Resolution of the American Arbitration Association in the state of employment. The National Rules [attached as Exhibit H to Defendant?s Appendix] provide for a neutral arbitrator.
The second Armendariz benchmark is whether, in fact, Plaintiff?s discovery rights are protected. Armendariz held that employees ?are at least entitled to discovery sufficient to adequately arbitrate their statutory claim, including access to essential documents and witnesses, as determined by the arbitrator(s) and subject to limited judicial review pursuant to Code of Civil Procedure section 1286.2.? Armendariz, 24 Cal.4th at 106. Adequate discovery does not mean ?unfettered? discovery, and an arbitration agreement may require something less than the full panoply of discovery provided in the CAA. Here, the AAA Rules state that the arbitrator ?shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.? [Exh. H to Defendant?s Appendix, Rule 9 at 19.] The fact the arbitrator has the authority to order such discovery by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute satisfies the Armendariz standard. The fact discovery is to be conducted in accordance with the AAA Employment Arbitration rules demonstrates that this benchmark is satisfied in the agreement.
Third, the AAA Rules provide that ?[t]he award shall be in writing and shall be signed by a majority of the arbitrators and shall provide the written reasons for the award unless the parties agree otherwise.? [Exh. H to Defendant?s Appendix, Rule 39(c) at 29.]
With respect to expense limits, the AAA Rules provide that Defendant is required to advance the administrative and arbitrator fees, except for a $200 filing fee payable by the employee. [Exh. H to Defendant?s Appendix, Rule 48(i).] This satisfies the Armendariz benchmark on expense limits.
The agreement itself provides that ?[a]ll remedies available through a court or administrative action are available through arbitration.? [Gleason Decl., Exh. D; Rodriguez Decl., Exh. F.]
Finally, Armendariz requires the arbitration agreement include a ?modicum of bilaterality.? Armendariz, supra, 24 Cal.4th at 117. The Armendariz court noted that ?[g]iven the disadvantages that may exist for plaintiffs arbitrating disputes, it is unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee, without at least some reasonable justification for such one-sidedness based on ?business realities.?? Armendariz, 24 Cal.4th at 117. Here, the agreement speaks in terms of submitting disputes between ?the Employer and I? to arbitration. There is no carve-out in the agreement which permits Defendant to bring certain claims in court, while not giving Plaintiff that same right. The agreement therefore satisfies the ?modicum of bilaterality? standard under Armendariz.
Plaintiff contends that the AAA Rule providing that the arbitrator ?shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the parties agree otherwise or the law provides to the contrary? [AAA Rules at 24, ?23] is substantively unconscionable pursuant to Ting v. AT&T (9th Cir. 2003) 319 F.3d 1126. The Ting court, as Plaintiff notes, recognized that the arbitration process tends to favor companies because they are ?repeat players,? and that ?if the company succeeds in imposing a gag order, plaintiffs are unable to mitigate the advantages inherent in being a repeat player.? Ting at 1151-1152. However, in Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 179, the Court of Appeal noted that, without more evidence, the ?repeat player effect? is not enough to render an arbitration agreement unconscionable. Here too, the confidentiality provision within the AAA Employment rules does not render the agreement substantively unconscionable. For these reasons, Plaintiff has not demonstrated that the agreement is substantively unconscionable.
Conclusion on Unconscionability
While there is evidence of procedural unconscionability, there is no evidence of substantive unconscionability in the agreement. Since both elements must be present to deem an arbitration agreement unconscionable under the Armendariz ?sliding scale,? Plaintiff Cipres has not demonstrated the arbitration agreement is unconscionable.
d. Arbitrability of PAGA Claim
The California Supreme Court has definitively addressed the arbitrability of PAGA claims in Iskanian v. CLS Transp. of Los Angeles, LLC (2014) 59 Cal.4th 348. In Iskanian, the Supreme Court commented:
[T]he Legislature’s purpose in enacting the PAGA was to augment the limited enforcement capability of the Agency by empowering employees to enforce the Labor Code as representatives of the Agency. Thus, an agreement by employees to waive their right to bring a PAGA action serves to disable one of the primary mechanisms for enforcing the Labor Code. Because such an agreement has as its ?object, ? indirectly, to exempt [the employer] from responsibility for [its] own ? violation of law,? it is against public policy and may not be enforced. [Citation.]Such an agreement also violates Civil Code section 3513’s injunction that ?a law established for a public reason cannot be contravened by a private agreement.? (Ibid.) The PAGA was clearly established for a public reason, and agreements requiring the waiver of PAGA rights would harm the state’s interests in enforcing the Labor Code and in receiving the proceeds of civil penalties used to deter violations. Of course, employees are free to choose whether or not to bring PAGA actions when they are aware of Labor Code violations. (See Armendariz, supra, 24 Cal.4th at p. 103, fn. 8 [waivers freely made after a dispute has arisen are not necessarily contrary to public policy].) But it is contrary to public policy for an employment agreement to eliminate this choice altogether by requiring employees to waive the right to bring a PAGA action before any dispute arises.
?.
We conclude that where, as here, an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law. Iskanian, 59 Cal.4th at 383-384 (emphasis added).
Thus, the Plaintiff?s representative PAGA claim may not be sent to arbitration, and the motion to compel arbitration of the PAGA claim is denied. The Court stays litigation of the PAGA claim, pending completion of the arbitration proceeding of the remainder of the action.
Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 966 specifically determined that because the issues subject to litigation under PAGA might overlap those that are subject to a plaintiff?s individual claims, the trial court must order an appropriate stay of trial court proceedings, pending completion of the arbitration. The stay?s purpose ?is to preserve the status quo until the arbitration is resolved, preventing any continuing trial court proceedings from disrupting and rendering ineffective the arbitrator’s jurisdiction to decide the issues that are subject to arbitration.? Id.
e. Class arbitration
In AT&T Mobility LLC v. Concepcion, supra, 131 S.Ct. 1740, the U.S. Supreme Court essentially reversed Discover Bank v. Superior Court (2005) 36 Cal.4th 148. The Court commented that ?[t]he overarching purpose of the FAA, evident in the text of ?? 2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.? Concepcion, 131 S.Ct. at 1748. Significantly, the arbitration provision in that case specifically required a waiver of any class arbitration claims.
Concepcion referenced Stolt-Nielsen S.A. v. AnimalFeeds Int?l. Corp. (2010) 130 S.Ct. 1758. In Stolt-Nielsen, the Supreme Court held in pertinent part that ?a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.? Stolt-Nielsen, 130 S.Ct. at 1775 (emphasis in original). See also Kinecta Alternative Financial Solutions, Inc. v. Sup.Ct. (2012) 205 Cal.App.4th 506, 517.
Here, there is no contractual basis for concluding that Defendant Select Staffing agreed to class arbitration. To the contrary, the arbitration agreement specifically includes a provision which provides in pertinent part that ?[a]ny such claim [brought in arbitration] shall be filed individually only, and I hereby waive the right to bring or join any class or representative action in arbitration, in any court or in any other forum.? [Defendant?s Appendix, Exhibit F.] Thus, under Stolt-Nielsen, there is no contractual basis for concluding that the parties agreed to class arbitration.
Accordingly, the Court strikes the class allegations, and declines to enforce the class claims in arbitration.
This is an appropriate decision for the Court to make, as opposed to the arbitrator. The Court of Appeal has determined that the question whether an arbitration agreement permits class and/or representative arbitration is a gateway issue, and is thus reserved ??for judicial determination [u]nless the parties clearly and unmistakably provide otherwise.?[Citation.]? Garden Fresh Restaurant Corp. v. Superior Court (2014) 231 Cal.App.4th 678, 689. The Court finds that, as a gateway issue, it has the authority to determine class arbitrability. For the reasons discussed above, the Court strikes the class allegations.