Hicks v. Utiliquest, LLC

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT HICKS, an individual, and on No. 2:24-cv-00911-DJC-AC

12 behalf of others similarly situated and

aggrieved,

13

14 Plaintiff, ORDER GRANTING MOTION TO COMPEL

ARBITRATION

15 v.

16 UTILIQUEST, LLC, a Georgia Limited

Liability Company; DYCOM

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INDUSTRIES, INC., a Florida

18 corporation; and DOES 1 through 50,

inclusive,

19

Defendants.

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22 Plaintiff Robert Hicks brings a putative class action complaint against Utiliquest,

23 LLC and Dycom Industries, Inc., along with 50 Doe Defendants (together,

24 “Defendants”), for various violations of California’s Labor Code, including meal and

25 rest break claims and overtime and reimbursement claims. In addition, Plaintiff brings

26 a representative action under California’s Private Attorneys General Act (“PAGA”),

27 codified at California Labor Code section 2698, et seq. Defendants move to enforce

28 the arbitration clause and the class or collective action waiver contained in an

1 agreement Plaintiff signed as a condition of employment with Defendants. Plaintiff

2 opposes, arguing that Dycom cannot enforce the agreement as a non-signatory and

3 that, in any event, the agreement is unenforceable because it is unconscionable. For

4 the reasons set forth below, the Court GRANTS Defendants’ Motion to Compel

5 Arbitration (ECF No. 9).

6 BACKGROUND

7 I. Factual Background

8 Plaintiff is a California citizen and resident who worked for Defendants as a non-

9 exempt employee from July 2022 until on or around September 2023. (See Class

10 Action Compl. (ECF No. 1 at 51–68) ¶ 4 (“Complaint” or “Compl.”).) Plaintiff alleges

11 that Defendants “were the joint employers of” Plaintiff. (Id. ¶ 9.) Plaintiff alleges that

12 both Utiliquest and Dycom maintain offices and facilities in California and conduct

13 business in the state, even though Utiliquest is a Georgia limited liability company and

14 Dycom is a California limited liability company. (See id. ¶¶ 6–7.)

15 II. Procedural Background

16 Plaintiff filed the Complaint in Sacramento County Superior Court on January

17 24, 2024. (See Compl. at 18.) Defendants removed the matter to federal court based

18 on jurisdiction under the Class Action Fairness Act, codified at 28 U.S.C. § 1332(d), on

19 March 22, 2024. (See ECF No. 1.) Defendants filed the instant Motion on March 29,

20 2024. (See Defs.’ Mem. of P. and A. in Supp. of Mot. to Compel Arbitration (ECF No.

21 9-1) (“Motion” or “Mot.”).) Plaintiff filed his Opposition on April 12, 2024. (See Pl.’s

22 Opp’n to Defs.’ Mot. (ECF No. 14) (“Opposition” or “Opp’n”).) Defendants filed their

23 Reply on April 22, 2024. (See Defs.’ Reply in Supp. of Mot. (ECF No. 15) (“Reply”).)

24 Pursuant to Local Rule 230(g), the matter was submitted on the briefs without oral

25 argument. (ECF No. 22).

26 ////

27 ////

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1 DISCUSSION

2 III. Legal Standard

3 The Federal Arbitration Act (“FAA”) governs arbitration agreements. 9 U.S.C.

4 § 2. The FAA affords parties the right to obtain an order directing that arbitration

5 proceed in the manner provided for in the agreement. Id. § 4. To decide on a motion

6 to compel arbitration, a court must determine: (1) whether a valid agreement to

7 arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at

8 issue. Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1017 (9th Cir. 2016).

9 Arbitration is a matter of contract, and the FAA requires courts to honor parties’

10 expectations. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 351 (2011) (citing Rent-

11 A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 67–69 (2010)). However, parties may use

12 general contract defenses to invalidate an agreement to arbitrate. See id. at 339.

13 Thus, a court should order arbitration of a dispute only where satisfied that neither the

14 agreement’s formation nor its enforceability or applicability to the dispute is at issue.

15 See Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 299–300 (2010). “Where

16 a party contests either or both matters, ‘the court’ must resolve the disagreement,”

17 Granite Rock Co., 561 U.S. at 299, because “a party cannot be required to submit to

18 arbitration any dispute which [it] has not agreed so to submit[,]” Knutson v. Sirius XM

19 Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (quoting United Steelworkers of Am. v.

20 Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960) (alteration omitted)). If a valid

21 arbitration agreement encompassing the dispute exists, arbitration is mandatory. See

22 Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Under § 3 of the FAA, a

23 court, “upon being satisfied that the issue involved . . . is referable to arbitration under

24 such an agreement, shall on application of one of the parties stay the trial of the action

25 until such arbitration has been had in accordance with the terms of the

26 agreement . . . .” 9 U.S.C. § 3.

27 The party seeking to compel arbitration bears the burden of proving by a

28 preponderance of the evidence the existence of a valid agreement to arbitrate. See

1 Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir. 2015). In

2 resolving a motion to compel arbitration, “[t]he summary judgment standard [of

3 Federal Rule of Civil Procedure 56] is appropriate because the district court’s order

4 compelling arbitration ‘is in effect a summary disposition of the issue of whether or not

5 there had been a meeting of the minds on the agreement to arbitrate.’” Hansen v.

6 LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021) (quoting Par-Knit Mills, Inc. v.

7 Stockbridge Fabrics Co., 636 F.2d 51, 54 n.9 (3d Cir. 1980)). Under this standard of

8 review, “[t]he party opposing arbitration receives the benefit of any reasonable doubts

9 and the court draws reasonable inferences in that party’s favor, and only when no

10 genuine disputes of material fact surround the arbitration agreement’s existence and

11 applicability may the court compel arbitration.” Smith v. H.F.D. No. 55, Inc., No. 2:15-

12 cv-01293-KJM-KJN, 2016 WL 881134, at *4 (E.D. Cal. Mar. 8, 2016). A material fact is

13 genuine if “the evidence is such that a reasonable jury could return a verdict for the

14 nonmoving party.” Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir. 1992)

15 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Conversely,

16 “[w]here the record taken as a whole could not lead a rational trier of fact to find for

17 the nonmoving party, there is no ‘genuine issue for trial.’” Id. (quoting Matsushita Elec.

18 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

19 IV. Analysis

20 A. DYCOM May Enforce the Arbitration Agreement

21 Plaintiff initially argues that Dycom cannot enforce the arbitration agreement for

22 two reasons. (See Opp’n at 4–7.) First, Plaintiff argues that Dycom cannot enforce the

23 arbitration agreement because it is not a signatory to the agreement and its claims are

24 not covered by the agreement. (See id. at 4–5.) Second, Plaintiff argues that Dycom is

25 not a third-party beneficiary to the arbitration agreement. (See id. at 6–7.) Because

26 the Court agrees that Dycom is a third-party beneficiary of the arbitration agreement,

27 the Court concludes that Dycom may enforce the agreement and does not address

28 Plaintiff’s first argument.

1 1. Legal Standard

2 State law determines whether a non-signatory to an agreement containing an

3 arbitration clause may compel arbitration. Ngo v. BMW of N. Am., LLC, 23 F.4th 942,

4 946 (9th Cir. 2022) (citing Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631–32

5 (2009)). Under California law, a non-signatory is a third-party beneficiary only to a

6 contract “made expressly for [its] benefit.” Id. (quoting Cal. Civ. Code § 1559)

7 (alteration in Ngo). Under California law, “[t]he mere fact that a contract results in

8 benefits to a third party does not render that party a ‘third party beneficiary’”; rather,

9 the parties to the contract must have intended the third party to benefit. Norcia v.

10 Samsung Telecommunications Am., LLC, 845 F.3d 1279, 1290 (9th Cir. 2017) (quoting

11 Matthau v. Superior Ct., 151 Cal. App. 4th 593, 602 (2007)). The test is this:

12 Examine the express provisions of the contract at issue, as

well as the relevant circumstances of the contract’s

13 formation, to determine not only (1) whether the third party

would benefit from the contract, but also (2) whether a

14 motivating purpose of the contracting parties was to

provide a benefit to the third party; and (3) whether

15 permitting a third party to bring its own breach of contract

action against a contracting party would be consistent with

16 the objectives of the contract and the reasonable

expectations of the contracting parties. The proponent

17 must satisfy all three elements for the third party action to

proceed.

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19 Hernandez v. Meridian Mgmt. Servs., LLC, 87 Cal. App. 5th 1214, 1222 (2023) (citing

20 Goonewardene v. ADP, LLC, 6 Cal. 5th 817, 830 (2019)). Accord Ngo, 23 F.4th at 946.

21 2. Analysis

22 Plaintiff argues that “nothing in the Agreement indicates that it was intended to

23 benefit Dycom.” (Opp’n at 7.) Plaintiff argues that “if Utiliquest intended for Dycom to

24 benefit from the Agreement, it would have presumably included Dycom, either by

25 name or as ‘parent company,’ as one of the entities listed in the ‘Company’ definition.”

26 (Id.) Not so.

27 As Defendants point out, “[t]he Agreement expressly provides that it ‘applies to

28 any claims or disputes . . . that You may have against the Company, and/or its parents,

1 subsidiaries and affiliates . . . Each and all of the individuals and entities in the

2 preceding clause may enforce this Agreement.” (Reply at 5 (quoting Decl. of Lori

3 Mullins in Supp. of Mot. Ex. G (ECF No. 9-3 at 23–26), at 1 (“Mullins Decl. Ex. G”)

4 (providing a copy of the arbitration agreement Plaintiff electronically signed) (first

5 alteration added; emphasis and omissions added in the Reply).) “The test for

6 determining whether a contract was made for the benefit of a third person is whether

7 an intent to benefit a third person appears from the terms of the contract.” Balsam v.

8 Tucows Inc., 627 F.3d 1158, 1162 (9th Cir. 2010) (quoting Spinks v. Equity Residential

9 Briarwood Apartments, 171 Cal. App. 4th 1004, 1022 (2009)). “If the terms of the

10 contract necessarily require the promisor to confer a benefit on a third person, then

11 the contract, and hence the parties thereto, contemplate a benefit to the third

12 person.” Spinks, 171 Cal. App. 4th at 1022 (quoting Johnson v. Holmes Tuttle Lincoln-

13 Mercury, Inc., 160 Cal. App. 2d 290, 297 (1958)).

14 Here, the arbitration agreement explicitly states that the agreement extends to

15 “any claims or disputes that . . . [Plaintiff] may have against [Utiliquest], and/or: its

16 parents, subsidiaries and affiliates . . . .” (Mullins Decl. Ex. G, at 1.) Thus, unlike in

17 other cases, the arbitration agreement clearly contemplates a benefit being conferred

18 to Utiliquest’s parents, which would include Dycom, and that Dycom would receive

19 the benefit of being able to enforce the arbitration agreement. Compare with Ford

20 Motor Warranty Cases, 89 Cal. App. 5th 1324, 1338 (2023) (holding that the defendant

21 was not a third-party beneficiary because the agreement’s “direct benefits are

22 expressly limited to those persons who might rely on it to avoid proceeding in court —

23 the purchaser, the dealer, and the dealer’s employees, agents, successors or

24 assigns.”); Ngo, 23 F.4th at 948 (“Though the language allows for arbitration of certain

25 claims concerning third parties, it still gives only NGO, the dealership, and the

26 assignee the power to compel arbitration.”). Thus, here, Dycom demonstrates that it

27 “’is a member of a class of persons for whose benefit [the agreement] was made.’”

28 Spinks, 171 Cal. App. 4th at 1023 (quoting Garratt v. Baker, 5 Cal. 2d 745, 748 (1936)).

1 Relatedly, because Dycom can show that it is a member of a class for whose

2 benefit the agreement was made, Dycom can also demonstrate that permitting it to

3 bring its own breach of contract action against Plaintiff would be consistent with the

4 objectives of the contract and the reasonable expectations of the contracting parties.

5 See Hernandez, 87 Cal. App. 5th at 1222 (citing Goonewardene, 6 Cal. 5th at 830).

6 Plaintiff cites to Fuentes v. TMCSF, Inc., 26 Cal. App. 5th 541 (2018), but that case

7 undermines Plaintiff’s position. (See Opp’n at 7.) In Fuentes, the court held that the

8 defendant could not enforce the arbitration agreement as a third-party beneficiary

9 because the arbitration clause “had its own list of intended third party beneficiaries”

10 and “Riverside was not among them.” Fuentes, 26 Cal. App. 5th at 552. Specifically,

11 the “arbitration clause itself specified the entities to which it applied”, limiting the

12 clause to “’any of ESB’s successors, assigns, parents, subsidiaries, or affiliates and/or

13 any employees, officers, directors, agents, of the aforementioned . . . .’” Id. at 549.

14 Similar language is used here (compare with Mullins Decl. Ex. G, at 1), but, unlike in

15 Fuentes, Dycom falls within the scope of the arbitration clause’s limited clause as a

16 parent of Utiliquest, see Fuentes, 26 Cal. App. 5th at 552. (See also Decl. of Sara B.

17 Tosdal in Supp. of Pl.’s Opp’n Ex. C (ECF No. 14-2 at 11–12) (providing a copy of an

18 announcement posted on Dycom’s website announcing that Utiliquest has become a

19 “wholly owned subsidiary of Dycom.”).) Therefore, it would be consistent with the

20 terms of the arbitration agreement and thus the reasonable expectations of the

21 contracting parties for a parent of Utiliquest, like Dycom, to enforce the arbitration

22 clause. See Hernandez, 87 Cal. App. 5th at 1222 (citing Goonewardene, 6 Cal. 5th at

23 830).

24 As a result, the Court concludes that Utiliquest is a third-party beneficiary of the

25 arbitration agreement between Utiliquest’s parent company Dycom and Plaintiff, and

26 that Utiliquest may therefore compel arbitration. See Ngo, 23 F.4th at 946–48.

27 ////

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1 B. The Arbitration Agreement Is Not Unconscionable

2 Plaintiff argues that “[e]ven if the Court finds that the Agreement covers the

3 claims and parties at issue in this case, Defendants’ motion fails because the

4 Agreement is clearly unconscionable, both procedurally and substantively, and is

5 therefore unenforceable.” (Opp’n at 8.) The Court disagrees. As explained below,

6 while there is a minimal amount of procedural unconscionability and somewhat more

7 substantive unconscionability, it is not enough to make the entire arbitration

8 agreement unconscionable and unenforceable.1

9 1. Legal Standard

10 Under California law, a court may refuse to enforce a provision of a contract if it

11 determines that the provision was “unconscionable at the time it was made.” Lim v.

12 TForce Logistics, LLC, 8 F.4th 992, 1000 (9th Cir. 2021) (quoting Cal. Civ. Code

13 § 1670.5(a)). Unconscionability “is concerned not with a simple old-fashioned bad

14 bargain, but with terms that are unreasonably favorable to the more powerful party.”

15 Bielski v. Coinbase, Inc., 87 F.4th 1003, 1013 (9th Cir. 2023) (quoting Sanchez v.

16 Valencia Holding Co., LLC, 61 Cal. 4th 899, 911 (2015)). A contract is unconscionable

17 if one of the parties lacked a meaningful choice in deciding whether to agree and the

18 contract contains terms that are unreasonably favorable to the other party. OTO,

19 L.L.C. v. Kho, 8 Cal. 5th 111, 125 (2019) (citing Sonic-Calabasas A, Inc. v. Moreno, 57

20 Cal. 4th 1109, 1133 (2013) (“Sonic II”)). “As that formulation implicitly recognizes, the

21 doctrine of unconscionability has both a procedural and a substantive element, the

22 former focusing on oppression or surprise due to unequal bargaining power, the

23 latter on overly harsh or one-sided results.” Baltazar v. Forever 21, Inc., 62 Cal. 4th

24 1237, 1243 (2016) (quoting Sonic II, 57 Cal. 4th at 1133). But “[s]ubstantive and

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1 Defendants argued for the first time in the Reply that the Court must compel arbitration because of a

26 delegation clause contained within the agreement that Plaintiff did not challenge specifically. (See

Reply at 2–4.) The Court declines to consider this belated argument. See, e.g., Zamani v. Carnes, 491

27 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in

a reply brief.” (citing Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003). Accord Mitchell v. United

28 States, 971 F.3d 1081, 1084 n.4 (9th Cir. 2020).

1 procedural unconscionability ‘need not be present in the same degree.’” Patrick v.

2 Running Warehouse, LLC, 93 F.4th 468, 479 (9th Cir. 2024) (quoting Sanchez, 61 Cal.

3 4th at 910). “Essentially a sliding scale is invoked . . . [so] the more substantively

4 oppressive the contract term, the less evidence of procedural unconscionability is

5 required to come to the conclusion that the term is unenforceable, and vice versa.”

6 Sanchez, 61 Cal. 4th at 910 (quoting Armendariz v. Found. Health Psychcare Servs.,

7 Inc., 24 Cal. 4th 83, 114 (2000)).

8 2. Analysis

9 a. There Is Minimal Procedural Unconscionability

10 i. Legal Standard

11 A procedural unconscionability analysis “begins with an inquiry into whether

12 the contract is one of adhesion.” OTO, L.L.C., 8 Cal. 5th at 126 (quoting Armendariz,

13 24 Cal. 4th at 113). An adhesive contract is standardized, generally on a preprinted

14 form, and offered by the party with superior bargaining power “on a take-it-or-leave-it-

15 basis.” Id. (quoting Baltazar, 62 Cal. 4th at 1246). “Arbitration contracts imposed as a

16 condition of employment are typically adhesive,” so “[t]he pertinent question, then, is

17 whether circumstances of the contract’s formation created such oppression or surprise

18 that closer scrutiny of its overall fairness is required.” Id.

19 “The oppression that creates procedural unconscionability arises from an

20 inequality of bargaining power that results in no real negotiation and an absence of

21 meaningful choice.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1260 (9th Cir.

22 2017) (quoting Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., 232 Cal. App.

23 4th 1332, 1347–48 (2015), as modified on denial of reh’g (Feb. 9, 2015)). “The

24 circumstances relevant to establishing oppression include, but are not limited to[:]”

25 (1) the amount of time the party is given to consider the

proposed contract; (2) the amount and type of pressure

26 exerted on the party to sign the proposed contract; (3) the

length of the proposed contract and the length and

27 complexity of the challenged provision; (4) the education

and experience of the party; and (5) whether the party's

28 review of the proposed contract was aided by an attorney.

1 OTO, L.L.C., 8 Cal. 5th at 126–27 (quoting Grand Prospect Partners, 232 Cal. App. 4th

2 at 1348).

3 Procedural surprise focuses on whether the challenged term is hidden in a

4 prolix printed form or is otherwise beyond the reasonable expectation of the weaker

5 party. Morris v. Redwood Empire Bancorp, 128 Cal. App. 4th 1305, 1321 (2005)

6 (citations omitted). Accord Bielski, 87 F.4th at 1013. However, California courts have

7 recognized that “the adhesive nature of a contract, without more, would give rise to a

8 low degree of procedural unconscionability at most.” Poublon, 846 F.3d at 1261–62

9 (citing Baltazar, 62 Cal. 4th at 1245). Thus, to find that there was procedural

10 unconscionability, the Court must find that there was “‘surprise or other sharp

11 practices’ [which] may arise when a party with less bargaining power is not told about

12 an unusual provision, or the party is otherwise ‘lied to, placed under duress, or

13 otherwise manipulated into signing the arbitration agreement.’” Id. at 1261 n.2

14 (quoting Baltazar, 62 Cal. 4th at 1245).

15 ii. Analysis

16 (A) The Adhesive Nature of the Arbitration

Agreement Creates Some Procedural

17 Unconscionability

18 As an initial matter, there is no doubt that the arbitration agreement between

19 Plaintiff and Defendants was part of an adhesive contract provided “on a take-it-or-

20 leave-it-basis.” OTO, L.L.C., 8 Cal. 5th at 126 (quoting Baltazar, 62 Cal. 4th at 1246).

21 Indeed, the Declaration of Lori Mullins admits that new hires were given a copy of the

22 arbitration agreement and were “required to review and execute each of the

23 documents linked in the portal[,]” including the arbitration agreement, before they

24 could work. (Mullins Decl. (ECF No. 9-3 at 1–6) ¶ 14; see also id. ¶¶ 6–9.) Thus, “the

25 adhesive nature of the contract is sufficient to establish some degree of procedural

26 unconscionability.” Sanchez, 61 Cal. 4th at 915. However, “the adhesive nature of a

27 contract, without more, would give rise to a low degree of procedural

28 unconscionability at most[,]” so the Court “turn[s] to the question whether there are

1 other indications of oppression or surprise that would lead California courts to

2 conclude that the degree of procedural unconscionability is high.” Poublon, 846 F.3d

3 at 1261–62 (citing Baltazar, 62 Cal. 4th at 1245).

4 (B) There Was No Significant Oppression

5 First, Plaintiff argues that there was a high level of oppression because he “was

6 unable to thoroughly review the Agreement and understand what he was consenting

7 to, particularly in light of his lack of education.” (Opp’n at 11 (citing Swain v.

8 LaserAway Med. Grp., Inc., 57 Cal. App. 5th 59, 69 (2020), as modified (Nov. 3, 2020)).)

9 However, courts have found procedural unconscionability based on specific factors in

10 the employee’s education or background, such as where the employee could not

11 speak English, not where they did not have a college degree. See, e.g.,

12 Subcontracting Concepts (CT), LLC v. De Melo, 34 Cal. App. 5th 201, 210–11 (2019)

13 (noting that the employee had limited English skills); Carmona v. Lincoln Millennium

14 Car Wash, Inc., 226 Cal. App. 4th 74, 85 (2014) (noting that the employer knew that

15 the employees could not read English and did not provide a Spanish translation of the

16 enforceability clause despite making translations of other material). Accord OTO,

17 L.L.C., 8 Cal. 5th at 128 and n.8.

18 Moreover, Plaintiff complains that he had little time to review and sign the

19 arbitration agreement, but he received more time than the plaintiff in Swain, the case

20 he cites. (See Opp’n at 10.) In Swain, “Laseraway provided the agreement to Swain to

21 sign ‘immediately’ before she was ‘taken to [a] room for her procedure,’

22 demonstrating that Laseraway gave Swain little time to review, and exerted pressure

23 on her to sign, the agreement.” Swain, 57 Cal. App. 5th at 69. Here, although Plaintiff

24 was told to sign the agreement “as soon as possible[,]” Plaintiff was not waiting on a

25 service and still had at least 24 hours to review the paperwork according to Plaintiff’s

26 Opposition. (See Opp’n at 10 (citing Decl. of Pl. Robert Hicks in Supp. of Pl.’s Opp’n

27 (ECF No. 14-1 at 1–4) ¶ 12 (“Hicks Decl.”)).) Thus, Plaintiff received significantly more

28 time to review the arbitration agreement than the plaintiff in Swain, yet even in Swain

1 the court simply determined that “the arbitration agreement would still have at least a

2 minimal degree of procedural unconscionability.” Id. at 71 (emphasis added).

3 Indeed, Plaintiff admits that he was “emailed a job offer at Utiliquest” that

4 “included a preview of forms [he] would be required to sign, including the

5 Agreement.” (Hicks Decl. ¶ 8.) Plaintiff admits that he reviewed the arbitration

6 agreement on June 6, 2022, which was three days before he signed and reviewed the

7 arbitration agreement being enforced against him now on June 9, 2022. (Compare

8 ECF No. 14-1 at 6, 9, 13 (providing a copy of a contract Plaintiff electronically signed

9 on 6/6/2022); ECF No. 9-3 at 18–19 (same) with ECF No. 9-3 at 26 (providing a copy of

10 a contract Plaintiff electronically signed on 6/9/2022); ECF No. 14-2 at 7 (same).) As a

11 result, Plaintiff’s complaints regarding a lack of time to review the arbitration

12 agreement ring hollow.

13 Second, Plaintiff argues that there was a high amount of procedural

14 unconscionability because the arbitration agreement contained legal jargon and he

15 did not understand the agreement until he retained counsel. (See Opp’n at 11.)

16 However, that was not enough in Sanchez to add to the procedural unconscionability

17 analysis where the employer even admitted during oral arguments that “[m]any

18 people who are not legally trained do not understand the vast majority of what is in

19 this contract[.]” Sanchez, 61 Cal. 4th at 914 (first alteration included; second alteration

20 added).

21 Accordingly, Plaintiff has failed to establish that there was any additional

22 oppression when formulating the arbitration agreement separate from the oppression

23 inherent in an adhesive contract. See Poublon, 846 F.3d at 1261–62.

24 (C) There Was No Significant Suprise

25 Without oppression, Plaintiff is left with surprise but here too his arguments fail.

26 (See Opp’n at 11–13.) First, Plaintiff argues that the arbitration agreement was a

27 surprise to him because “it includes over 300 single spaced lines of legal jargon,

28 incomprehensible to a layperson.” (Id. at 11.) In reality, the arbitration agreement is a

1 three-page document with two columns of block text. (See Mullins Decl. Ex. G, at 1–3.)

2 Arbitration agreements of the same or similar length and stylized with like features

3 such as columns and bolded headings have been approved before. See, e.g., Davis v.

4 Kozak, 53 Cal. App. 5th 897, 907 (2020) (“The agreement is set forth in a standalone

5 three-page document, clearly labeled ‘Binding Arbitration Agreement,’ with standard-

6 sized and readable text.”); Cohen v. CBR Sys., Inc., 625 F. Supp. 3d 997, 1003 (N.D.

7 Cal. 2022) (“The Koneru Contract is only four pages long with the arbitration clause on

8 the first page, and the Second Cohen and Vaccarella Contracts are eleven pages long

9 with the arbitration provision on page 4 under the bolded section heading ‘Governing

10 Law.’”). Thus, the three-page arbitration agreement is not “visually impenetrable” and

11 does not “challenge[ ] the limits of legibility.” OTO, L.L.C., 8 Cal. 5th at 128.

12 Second, Plaintiff argues that there was a high amount of surprise and

13 procedural unconscionability “because [the agreement] was one document of several

14 that Plaintiff had to sign to commence his work at Utiliquest.” (Opp’n at 12 (citing

15 Dougherty v. Roseville Heritage Partners, 47 Cal. App. 5th 93, 103 (2020)).) However,

16 Plaintiff was not pressured into signing the agreement, unlike the plaintiff in

17 Dougherty. In that case, the plaintiff was looking for long-term residential care for her

18 father who suffered from dementia (also known as a nursing home or a skilled nursing

19 facility). The defendant’s business “was ‘the only feasible care option’ for her father[,]”

20 such that “Dougherty was ‘relieved’ to have found a placement for her father[,]” and

21 “was ‘crying’ and ‘emotionally exhausted’ as she signed the admission forms.”

22 Dougherty, 47 Cal. App. 5th at 97–98. Moreover, although Plaintiff avers that he had

23 to read more than 90 pages of documents while on-boarding (see Hicks Decl. ¶ 11),

24 Plaintiff does not aver or allege that the agreement was hidden like a needle in a

25 haystack, unlike in Dougherty where the arbitration agreement was “buried within the

26 packet at pages 43 through 45 [of 90].” Dougherty, 47 Cal. App. 5th at 104. Rather,

27 the arbitration agreement “was not hidden, but prominently featured as part of the

28 employment application . . . .” Sanchez v. Carmax Auto Superstores California, LLC,

1 224 Cal. App. 4th 398, 403 (2014) (“Carmax”). And as mentioned before, Plaintiff

2 previewed and signed the arbitration agreement on June 6, 2022, three days before

3 he signed the operative agreement being enforced against him in this case.

4 Finally, Plaintiff argues that there was a high degree of surprise because he was

5 forced to complete the on-boarding process online and Defendants never inquired

6 into whether Plaintiff “could view the documents electronically[ ] and did not provide

7 any alternative options for Plaintiff to sign the Agreement.” (Opp’n at 12.) Here,

8 Plaintiff relies on Hasty v. American Automobile Association, 98 Cal. App. 5th 1041,

9 1057–58 (2023), review denied (May 1, 2024). (See Opp’n at 12–13.) Admittedly,

10 Hasty has some superficial similarities, but it is ultimately distinguishable.

11 For instance, Plaintiff, like Hasty, claims that he does not own a computer or

12 printer. Compare (Hicks Decl. ¶ 7) with Hasty, 98 Cal. App. 5th at 1057. And

13 Defendants, like the defendants in Hasty, allegedly did not “inquire[ ] into whether

14 [Plaintiff] had the ability to view the documents electronically and did not appear to

15 provide any other alternative, such as to view the documents at an office on a

16 computer or to pick up the physical documents for review before signature.” Hasty,

17 98 Cal. App 5th at 1057. (See Opp’n at 12–13.) However, here Plaintiff had already

18 applied online to an internet job posting for the position through the website Indeed.

19 Given his use of the internet to apply for the position, it would have been clear to

20 Defendants that Plaintiff had access to a computer and the internet, that he could view

21 the documents electronically, and that he had sufficient skill to complete a job

22 application online. (See Hicks Decl. ¶ 5.) Thus, Plaintiff’s first complaint about

23 Defendants never inquiring into whether he could view the documents electronically

24 fails because there was no need to considering that Plaintiff reached out to

25 Defendants through electronic means. (See Opp’n at 12.)

26 Similarly, Plaintiff complains that Defendants never offered any other options

27 for Plaintiff to view and sign the arbitration agreement (see Opp’n at 12), but Plaintiff

28 admits that he previewed and signed the arbitration agreement on June 6, 2022

1 before he signed the operative agreement on June 9, 2022 (see Hicks Decl. ¶¶ 8–12).

2 Thus, there was no need to provide an alternative method when Plaintiff already had a

3 chance to preview the contract and did review the arbitration agreement before he

4 signed it (again) on June 9, 2022.

5 As a result, Plaintiff “has not established any other element of oppression or

6 surprise associated with the [arbitration] agreement[.]” Poublon, 846 F.3d at 1263.

7 “[T]herefore under California law, ‘the degree of procedural unconscionability of

8 [such] an adhesion agreement is low, and the agreement will be enforceable unless

9 the degree of substantive unconscionability is high.’” Id. (quoting Serpa v. California

10 Sur. Investigations, Inc., 215 Cal. App. 4th 695, 704 (2013), as modified (Apr. 19,

11 2013), as modified (Apr. 26, 2013)).

12 b. There Are No Substantively Unconscionable Terms

13 i. Legal Standard

14 Substantive unconscionability pertains to the fairness of an agreement’s actual

15 terms and to assessments of whether they are overly harsh or one-sided. OTO, L.L.C.,

16 8 Cal. 5th at 125 (quoting Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US),

17 LLC, 55 Cal. 4th 223, 246 (2012)). This analysis “ensures that contracts, particularly

18 contracts of adhesion, do not impose terms that have been variously described as

19 ‘overly harsh[,]’ ‘unduly oppressive[,]’ ‘so one-sided as to “shock the conscience[,]”’ or

20 ‘unfairly one-sided[.]’” Id. at 129–30 (citations and some internal quotation marks

21 omitted). Unconscionable terms “’impair the integrity of the bargaining process or

22 otherwise contravene the public interest or public policy’” or attempt to impermissibly

23 alter fundamental legal duties. Id. at 130 (quoting Sonic II, 57 Cal. 4th at 1145). This

24 may include, as “illustrative, not exhaustive[,]” examples, “fine-print terms,

25 unreasonably or unexpectedly harsh terms regarding price or other central aspects of

26 the transaction, and terms that undermine the nondrafting party’s reasonable

27 expectations.” Id. However, “[s]ubstantive terms that, in the abstract, might not

28

1 support an unconscionability finding take on greater weight when imposed by a

2 procedure that is demonstrably oppressive.” Id.

3 ii. Analysis

4 Plaintiff has only two challenges regarding the substantive unconscionability of

5 the arbitration agreement, arguing that it does not provide sufficient discovery and

6 that the arbitration agreement lacks mutuality. (See Opp’n at 14–19.) The Court

7 disagrees.

8 (A) The Discovery Limitation Is Not

Substantively Unconscionable

9

10 Plaintiff argues that the arbitration agreement is unconscionable because “[t]he

11 default discovery provisions . . . only allow for the deposition of ‘two individual fact

12 witnesses and any expert designated by another party,’ and only permit the parties to

13 propound requests for documents, not requests for interrogatories or admissions.”

14 (Opp’n at 17 (citing Mullins Decl. ¶ 22; Mullins Decl. Ex. G, at 3).) Here, Plaintiff largely

15 relies on Fitz v. NCR Corporation, 118 Cal. App. 4th 702 (2004) to argue that these

16 initial limitations are too restrictive when combined with the fact that “[t]he Agreement

17 further restricts additional discovery by requiring a stipulation by both parties for

18 more[,]” and by giving the arbitrator the “exclusive authority to grant or deny such

19 requests, based on the arbitrator’s determination whether additional discovery is

20 warranted by the circumstances of a particular case[.]” (Id. (first citing Mulls Decl. Ex.

21 G, at 3; and then quoting Mullins Decl. Ex. G, at 3).)

22 In Fitz, the agreement “limit[ed] discovery to the sworn deposition statements

23 of two individuals and any expert witnesses expected to testify at the arbitration

24 hearing[,]” and it “require[d] all exhibits and a list of potential witnesses to be

25 exchanged at least two weeks in advance of the arbitration hearing.” Fitz, 118 Cal.

26 App. 4th at 716. However, no other discovery was allowed unless the arbitrator found

27 a compelling need to allow it, which, as specified in the arbitration agreement,

28 required that it would be impossible to conduct a fair hearing without the additional

1 discovery. See id. The plaintiff in Fitz argued that these limitations were too restrictive

2 for her to vindicate her rights in arbitration because she needed to depose an

3 estimated 8 to 10 witnesses and needed to get the arbitrator’s approval to access any

4 written information. See id. at 717. The court agreed, noting that the agreement

5 chose to limit the incorporated rules to the defendant’s advantage. See id. at 718.

6 Here, as an initial matter, Plaintiff fails to argue that the arbitration agreement

7 provides him insufficient discovery, which is sufficient to deny finding that the

8 discovery limitation is substantively unconscionable. See Mercuro v. Superior Ct., 96

9 Cal. App. 4th 167, 183 (2002) (“[W]ithout evidence showing how these provisions are

10 applied in practice, we are not prepared to say they would necessarily prevent [the

11 plaintiff] from vindicating his statutory rights.’”); Poublon, 846 F.3d at 1266 (“Finally,

12 Poublon fails to make any showing that she would be unable to vindicate her rights

13 under the standard provided in the agreement.” (citing Carmax, 224 Cal. App. 4th at

14 405–06)). Accord Davis, 53 Cal. App. 5th at 912 (“Mercuro and Poublon emphasized

15 that the plaintiffs before them had made no showing whatsoever of an inability to

16 vindicate their statutory rights under the discovery standards provided in the subject

17 arbitration agreements.”).

18 Even when evaluating the substance of the limitation, however, Plaintiff can

19 obtain more discovery here than in other cases. As in Poublon, “the discovery

20 limitations and evidence presented are more similar to those in [Carmax] than those in

21 Fitz.” Poublon, 846 F.3d at 1271. Plaintiff has a lower standard to obtain discovery

22 than in Fitz, which required that the discovery request be denied unless “a fair hearing

23 is impossible without additional discovery.” Fitz, 118 Cal. App. 4th at 709. Here, by

24 contrast, Defendants concede that if they and Plaintiff are unable to stipulate to more

25 discovery, “then the arbitrator can grant more if it is ‘warranted by the circumstances

26 of the particular case.’” (Reply at 13 (quoting Mullins Decl. Ex. G, at 3).) This standard

27 appears to be more akin to the “showing of need” standard upheld in Dotson v.

28 Amgen, Inc., 181 Cal. App. 4th 975, 978, 983–84 (2010), and that discovery limitation

1 appeared more onerous than here where each party only had “the right to take the

2 deposition of one individual and any expert witness designated by the other party[,]”

3 and similarly had “the right to make requests for production of documents to any

4 party.” This “warranted by the circumstances” standard appears even less

5 burdensome than the “substantial need” standard upheld in Carmax and is at least as

6 liberal as the “good cause” standard upheld in Poublon. See Poublon, 846 F.3d at

7 1271 (“The California Court of Appeal rejected this argument, noting that in the

8 dispute resolution provision at issue in its case, the discovery provisions were

9 “considerably more liberal” than they were in Fitz, and the employee could get

10 additional discovery merely by showing substantial need, rather than compelling

11 need as in Fitz.” (citing Carmax, 224 Cal. App. 4th at 405)).

12 Plaintiff counters, arguing that “granting the arbitrator discretion to expand

13 discovery based on the arbitrator’s assessment of the ‘circumstances of the case’

14 places a higher burden than ‘simple showing of need’ and is sufficiently vague as to

15 diminish the arbitrator’s authority to increase discovery.” (Opp’n at 19 (citing Baxter v.

16 Genworth N. Am. Corp., 16 Cal. App. 5th 713, 928–29 (2017)).) However, “Baxter set

17 forth facts tending to show that the default levels of discovery would be inadequate to

18 vindicate her statutory rights.” 16 Cal. App. 5th at 729 (distinguishing Carmax, 224

19 Cal. App. 4th 404–05; Mercuro, 96 Cal. App. 4th at 183). Moreover, unlike in Baxter,

20 here there is only one standard based on the circumstances of the case, not two

21 standards — that the requested discovery be needed for both good cause and

22 sufficient cause. Compare with Baxter, 16 Cal. App. 5th at 729 (“In applying the

23 Resolve guidelines and assessing whether a “sufficient” showing has been made to

24 justify additional discovery, an arbitrator might expect a showing beyond simple

25 “good cause,” particularly if the employee seeks discovery well beyond the default

26 limitations.”).

27 Granted, Plaintiff does not have the advantage of substantial initial disclosures

28 and obligations to supplement those initial disclosures. Compare with Carmax, 224

1 Cal. App. 4th at 404; CarMax Auto Superstores California LLC v. Hernandez, 94 F.

2 Supp. 3d 1078, 1123–24 (C.D. Cal. 2015) (collecting cases). However, Defendants

3 concede that “parties can avail themselves of unlimited subpoenas to third parties to

4 produce documents and/or testify at deposition or at the hearing.” (Reply at 12 (citing

5 Mullins Decl. Ex. G, at 3).) Indeed, each party “may also propound requests [for]

6 production of documents . . . .” (Mullins Decl. Ex. G, at 3.) Thus, Plaintiff has the ability

7 to obtain all relevant documents, which was crucial in other cases where a discovery

8 limitation was held substantively unconscionable. See, e.g., De Leon v. Pinnacle Prop.

9 Mgmt. Servs., LLC, 72 Cal. App. 5th 476, 487–89 (2021) (complaining that “the

10 [agreement] does not provide for any similar document discovery”).

11 As a result, because Plaintiff has failed to argue that the discovery limitations in

12 this case prevent him from vindicating his rights during arbitration and because

13 Plaintiff can obtain more discovery than in other cases, the Court concludes that the

14 discovery limitation clause is not substantively unconscionable.

15 (B) The Agreement Is Mutual and Bilateral

16 Plaintiff also argues that the arbitration agreement is substantively

17 unconscionable for a lack of mutuality because Plaintiff must arbitrate all his claims

18 while Defendants may seek injunctive relief in courts for breaches of the separate

19 confidentiality agreement that Plaintiff signed while on-boarding on his first day of

20 work. (See Opp’n at 14–17 (relying on Alberto v. Cambrian Homecare, 91 Cal. App.

21 5th 482, 491–92 (2023)); also Tosdal Decl. Ex. B (ECF No. 14-2 at 8–10) (providing a

22 copy of the signed confidentiality agreement).) However, as recognized in Alberto,

23 “provisions that allow employers to seek a preliminary injunction outside of arbitration

24 for breach of a confidentiality agreement are not, by themselves, unconscionable,

25 simply because they primarily benefit employers.” Alberto, 91 Cal. App. 5th at 492

26 (citing Lange v. Monster Energy Co., 46 Cal. App. 5th 436, 450 (2020); Carbajal v.

27 CWPSC, Inc., 245 Cal. App. 4th 227, 250 (2016)). But additional provisions that waive

28 the employer’s need to obtain a bond before seeking an injunction, waive the

1 employer’s need to obtain a bond before seeking an injunction, waive the employer’s

2 need to show irreparable harm, and require an employee to consent to an immediate

3 injunction are unconscionable. Id. They exceed the legitimate “margin of safety” for

4 the employer and are not mutual. Id. (citing Lange, 46 Cal. App. 5th at 451; Carbajal,

5 245 Cal. App. 4th at 250). But unlike in Alberto, none of those provisions are present

6 here. Compare with id. at 493 (“Each of those provisions was present here . . . .”). (See

7 Reply at 10 n.3.2)

8 Accordingly, because the Court concludes that there are no substantively

9 unconscionable terms, Plaintiff fails to establish that both elements of procedural and

10 substantive unconscionability are present to establish that the arbitration agreement is

11 unconscionable overall. See OTO, L.L.C., 8 Cal. 5th at 125 (quoting Armendariz, 24

12 Cal. 4th at 114).

13 C. The Class Action Claims Are Waived and Dismissed

14 As Defendants note, the arbitration agreement “contains a waiver of the right to

15 bring or participate in a class action suit or class arbitration.” (Mot. at 6 (citing Mullins

16 Decl. Ex. G, at 3).) And as Defendants also note, “[u]nder Supreme Court and Ninth

17 Circuit precedent, such clauses must be enforced.” (Id. (citing Epic Sys. Corp. v. Lewis,

18 584 U.S. 497, 524–25 (2018); Armstrong v. Michaels Stores, Inc., 59 F.4th 1011, 1013

19 (9th Cir. 2023); O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1094 (9th Cir. 2018)).)

20 Thus, because Plaintiff assented to the arbitration agreement, which is valid, the Court

21 must also enforce the valid class or collective action waiver, and, therefore, dismiss the

22 class action claims from the Complaint. See, e.g., Prostek v. Lincare Inc., 662 F. Supp.

23 3d 1100, 1122 (E.D. Cal. 2023) (collecting cases).

24 ////

25

26 2 Contrary to Defendants’ contention, the arbitration agreement does state that both parties “may apply

to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an

27 arbitrable controversy, including without limitation any controversy under any applicable restrictive

covenant(s) or confidentiality obligations between [Plaintiff] and [Defendants].” (Mullins Decl. Ex. G, at 2

28 (emphasis added).) (See Reply at 10–11.)

1 D. The Individual PAGA Action Must Be Arbitrated

2 The arbitration agreement also contained a requirement that any individual

3 PAGA claims be arbitrated. (See Mullins Decl. Ex. G, at 2 (stating that the agreement

4 does not cover “representative actions for civil penalties filed under [PAGA] (but to the

5 extent permitted by applicable law, any claim by You on Your own behalf under PAGA

6 to recover Your unpaid wages must be arbitrated and is covered by this

7 Agreement.”).) Both the United States and California Supreme Courts have

8 recognized that individual PAGA claims may be arbitrated even though waivers of

9 representative PAGA claims are unenforceable. See, e.g., Viking River Cruises, Inc. v.

10 Moriana, 596 U.S. 639, 662 (“Based on this clause, Viking was entitled to enforce the

11 agreement insofar as it mandated arbitration of Moriana’s individual PAGA claim.”),

12 reh’g denied, 143 S. Ct. 60 (2022), not followed on state law grounds by Adolph v.

13 Uber Techs., Inc., 14 Cal. 5th 1104 (2023). Thus, the Court concludes that Plaintiff’s

14 individual PAGA claim must be arbitrated.

15 E. The Representative PAGA Claim Is Stayed

16 Where a plaintiff has brought a PAGA action comprising individual and non-

17 individual claims, an order compelling arbitration of the individual claims does not

18 strip the plaintiff of standing to sue as an aggrieved employee to litigate claims on

19 behalf of other employees under PAGA. Adolph, 14 Cal. 5th at 1114. As a result, the

20 Court must decide how to handle the remaining representative PAGA claim.

21 Defendants ask that the representative claim be stayed but Plaintiff asks that the claim

22 proceed. (Compare Opp’n at 21–22 with Mot. at 10; Reply at 14–15.)

23 However, as Defendants note, both California and federal arbitration law

24 require that any remaining claims be stayed pending completion of arbitration of the

25 other claims. (See Reply at 15 (citing 9 U.S.C. § 3 (requiring the court, “on application

26 of one of the parties [to] stay trial of the action until such arbitration has been had in

27 accordance with the terms of the agreement . . . .”); Cal. Code Civ. Proc. § 1281.4

28 (requiring the court “upon motion of a party to such action or proceeding, [to] stay the

1 action or proceeding until an arbitration is had in accordance with the order to

2 arbitrate or until such earlier time as the court specifies.”)).) Plaintiff does not dispute

3 this, but, instead, argues that the Court has discretion to stay, which means discretion

4 to permit the case to proceed. (See Opp’n at 21.) Here, Plaintiff mostly relies on

5 Jarboe v. Hanlees Auto Group, 53 Cal. App. 5th 539, 557 (2020) to argue that

6 “[b]ecause a PAGA claim is representative and does not belong to an employee

7 individually, an employer should not be able to dictate how and where the

8 representative action proceeds.” (Opp’n at 21 (quoting Jarboe, 53 Cal. App. 5th at

9 557).) But Jarboe was decided before Adolph, which held that staying rather than

10 dismissing was the way to proceed, and in no instance was permitting the

11 representative claim to proceed on its own contemplated. See Adolph, 14 Cal. 5th at

12 1124. And as other courts have subsequently recognized, Jarboe had the issue of

13 individual PAGA claims brought against non-signatories to the arbitration agreement

14 that were not compelled to arbitration, so those PAGA claims could not be stayed,

15 “and since the PAGA claim against the signatory and non-signatory defendants was

16 not severable, the PAGA claim could not be stayed.” Elvira v. So Cal Elite Traffic, Inc.,

17 No. CIVDS1935613, 2021 WL 9218377, at *4 (Cal. Super. Apr. 16, 2021). Here, “this

18 problem does not exist.” Id. “Accordingly, a stay of this [C]ourt’s proceedings on

19 Plaintiff’s PAGA claims is appropriate.” Id. See, e.g., Josephson v. Lamon Construction

20 Co., Inc., No. 2:23-cv-000043-DAD-AC, 2024 WL 382378, at *4 (E.D. Cal. Jan. 31,

21 2024) (collecting cases where courts stayed the representative claims from

22 proceeding). But see Johnson v. Lowe’s Home Centers, LLC, 93 F.4th 459, 465–68 (9th

23 Cir. 2024) (Lee, J., concurring) (expressing concern that current splitting of

24 representative and individual claim may increase pressure on outcome for arbitration

25 of low-value individual claim because of preclusive effect for the representative claim

26 in federal court down the road, which may lead to “potential conflict [between

27 California law and the FAA] in future cases.”).

28 ////

1 CONCLUSION

2 For the reasons set forth above, the Court GRANTS Defendants’ Motion to

3 | Compel Arbitration (ECF No. 9). As a result, the Court: (1) compels arbitration of

4 | Plaintiff's claims on an individual basis; (2) compels arbitration of Plaintiff's individual

5 | PAGA claim; (3) dismisses without prejudice Plaintiff's class action claims; and (4) stays

6 | litigation of Plaintiff's representative PAGA claim. The parties are instructed to file a

7 | joint status report with the Court every six months informing the Court of the status of

8 | arbitrating Plaintiff's claims, and the parties are to immediately notify the Court once

9 | arbitration of Plaintiff's claims has been completed.

10

14 IT IS SO ORDERED.

12 | Dated: _June 10, 2024 “Darel A Ch brett

Hon. Daniel alabretta

13 UNITED STATES DISTRICT JUDGE

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