Defendant Tawa Supermarket Inc?s Petition to Compel Arbitration and to Stay Litigation
Defendant?s motion to compel arbitration is?granted?as to 1st, 3rd-7th, and 9-11th causes of action contained in Plaintiff?s complaint filed 6/1/17.? The remaining causes of action in that complaint are stayed pending arbitration.
Defendant?s motion satisfied Defendant?s initial burden of establishing an agreement to arbitrate between.??Wu Dec., Exhibit B; Espejo v. Southern California Permanente Medical Group?(2016) 246 Cal.App.4th 1047, 1060.? Plaintiff acknowledged executing the agreement.? Thus, an agreement to arbitrate exists that potentially covers Plaintiff?s claims, all of which arise out of his employment.
Plaintiff asserts, however, that the agreement is not enforceable because it is unconscionable.? Whether the Court may consider the unconscionability issue depends on whether the delegation clause in the agreement is enforceable.? If the delegation clause is enforceable, the arbitrator must decide the unconscionability questions.
Delegation clauses are enforceable if ?two prerequisites [are] satisfied. First, the language of the clause must be clear and unmistakable. ? [?] Second, the delegation must not be revocable under state contract defenses to enforcement, [including] unconscionability.???Pinela v. Neiman Marcus Group, Inc.?(2015) 238 Cal.App.4th 227, 239-240.
The delegation clause in this agreement ?Any controversy over whether a dispute is an arbitrable dispute or as to the interpretation or enforceability of this Agreement shall be determined by the arbitrator.???Wu Dec., Exhibit B, ? 5.??The clause is clear and unmistakable and passes the first test.? With regard to the second test, Plaintiff argues that the delegation is revocable because the entire agreement is unconscionable.??Opposition at 5:19-8:5.? However,??any claim of unconscionability must be specific to the delegation clause.????Tiri, Tiri v. Lucky Chances, Inc.?(2014) 226 Cal.App.4th 231, 247-248.
Plaintiff also argues that?the delegation clause robs Plaintiff of his opportunity to argue that the class action waiver violates the NLRA.??However, the question of ?whether the agreement?permits or prohibits classwide arbitration? can be determined by an arbitrator if the parties have delegated that authority.??Sandquist v. Lebo Automotive, Inc.,?1 Cal. 5th 233, 241 (2016). Here, the parties agreed that the arbitrator would determine the interpretation or enforceability of the agreement.??Exhibit B,???5.??They further agreed that the arbitrator would apply California law.??Exhibit B,???6.? Plaintiff is not robbed of his opportunity to argue that the class action waive violates the NLRA as he may argue it to the arbitrator. In any case, as noted below, the motion to compel arbitration did not address the class action claims as it was filed before the class allegations were made
The delegation provision meets both tests and is enforceable.? Therefore, the Court is not required to and should not address the issues of unconscionability raised by Plaintiff in opposition to the motion.? Those issues belong with the arbitrator.
The remaining question is which causes of action may be sent to the arbitrator.? The PAGA claim?cannot be sent to arbitration and should be stayed.??Betancourt v. Prudential Overall Supply?(2017) 9 Cal.App.5th 439, 445-448.
In addition, pursuant to Cal. Labor Code ? 229, any claim seeking unpaid wages cannot be sent to arbitration.? (?Actions to enforce the provisions of this article for the collection of due and unpaid wages claimed by an individual may be maintained without regard to the existence of any private agreement to arbitrate.?)? ?Section 229 is found in article 1 of division 2, part 1, chapter 1 of the Labor Code, encompassing sections 200 through 244. Thus, if a cause of action seeks to collect due and unpaid wages pursuant to sections 200 through 244, that action can be maintained in court, despite an agreement to arbitrate.???Lane v. Francis Capital Management, LLC?(2014) 224 Cal.App.4th 676, 684.
Plaintiff argues that the first 5 causes of action fall within ? 229.? The first cause of action invokes Cal. Lab. Code ? 233 but does not seek the collection of due and unpaid wages.? Accordingly, it is outside of ? 229 and may be submitted to arbitration.
The second cause of action seeks unpaid wages under Cal. Labor Code ? 201 and falls within the provision of ? 229.? It cannot be submitted to arbitration.
The third cause of action is not an action for the ?collection of due and unpaid wages? and may be submitted to arbitration.??Lane, 224 Cal.App.4th at 684, citing?Kirby v. Immoos Fire Protection, Inc.?(2012) 53 Cal.4th 1244, 1256-1257.
The fourth and fifth causes of action seek penalties not unpaid wages.??Lane, 224 Cal.App.4th at 684.??Accordingly, they are outside of ? 229 and may be submitted to arbitration.
As noted above, the motion to compel arbitration did not address the class action allegations which were alleged after the motion to compel arbitration.? As those claims are not the subject of the motion, the Court makes no ruling as to whether the class action claims should be submitted to arbitration at this time.? The parties should be prepared to address the Court regarding those claims at the hearing on this motion.
Defendant to give notice.