Filed 11/26/13 Rivera v. Hilton Worldwide CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


PEDRO MEDINA RIVERA,

     Plaintiff and Appellant,                                          G047644

         v.                                                            (Super. Ct. No. 30-2012-00571445)

HILTON WORLDWIDE, INC.,                                                OPINION

     Defendant and Respondent.



                   Appeal from an order of the Superior Court of Orange County, Steven L.
Perk, Judge. Affirmed.
                   Cohelan Khoury & Singer, Michael D. Singer, Jeff Geraci; Law Offices of
Sahag Majarian II and Sahag Majarian II for Plaintiff and Appellant.
                   Jackson Lewis, Cynthia L. Filla, Sherry L. Swieca, Susan E. Groff and
Carmen Ruda for Defendant and Respondent.


                                          *                  *                  *
               Plaintiff Pedro Medina Rivera filed a putative class action against
defendant Hilton Worldwide, Inc. alleging six causes of action for underpayment and late
payment of wages, and unfair competition (Bus. & Prof. Code, § 17200 et seq.; UCL).
Upon defendant’s motion, the court ordered plaintiff’s individual claims to arbitration
and dismissed the class claims without prejudice.
               Plaintiff appeals, raising the following issues: 1) the arbitration provision
may not be enforced because it is unconscionable; 2) the arbitration agreement applies to
class claims; 3) neither the Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA) nor AT&T
Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740] (Concepcion) overrules
or preempts California law allowing arbitration of class claims; 4) California law
prohibits exclusion of the class claims from arbitration because plaintiff would be unable
to enforce his statutory rights; and 5) federal labor laws bar proscription of class claims in
the arbitration.
               We see no error and affirm the order.


                         FACTS AND PROCEDURAL HISTORY


               In 2012 plaintiff filed his putative class action for underpayment of hourly
and overtime wages (Lab. Code1, §§ 204, 1194; Wage Order 5-2001), failure to properly
calculate meal period payments (§ 226.7), failure to provide accurate itemized wage
statements (§§ 226, 1174), failure to timely pay wages upon termination (§§ 201-203),
and a claim under the UCL based on those alleged violations. Shortly after answering the
complaint, defendant filed a motion compelling arbitration of plaintiff’s individual
claims, dismissing all class claims without prejudice, and dismissing plaintiff’s individual




       1   All further statutory references are to the Labor Code unless otherwise stated.

                                              2
claims or, alternatively, staying proceedings on plaintiff’s individual claims until
arbitration was completed.
              Defendant relied on a document entitled “Agreement re At-Will
Employment and Arbitration” (boldface & capitalization omitted; Agreement) as the
basis of the motion. Plaintiff was defined in the Agreement as Employee, I or me and
defendant was defined as Company.
              The Agreement provided: “The Company and I further agree and
acknowledge that final and binding arbitration shall be the exclusive forum to hear and
decide any dispute between the Company and me, except for claims for Workers’
Compensation, Unemployment Compensation, claims brought to secure rights granted
under the terms of a collective bargaining agreement, or any other claim that is non-
arbitrable under applicable state or federal law. . . . Except for the claims carved out
above, this Agreement includes all common-law and statutory claims, including, but not
limited to, any claims for breach of contract, unpaid wages, wrongful termination, unfair
competition, [and several other claims]. . . . I understand that I am giving up no
substantive rights, and this Agreement simply governs forum.”
              Just above plaintiff’s signature, the following was set out in boldface and
capital letters: “By signing this agreement, the Company and I acknowledge that the
right to a court trial and trial by jury is of value, and we knowingly and voluntarily waive
such right for any dispute subject to the terms of this agreement.”
              The court granted the motion and ordered the parties to arbitrate plaintiff’s
individual claims; the class claims were dismissed without prejudice. In addition
plaintiff’s individual claims were stayed until completion of the arbitration.
              The court ruled plaintiff’s individual claims were governed by the FAA and
subject to arbitration under Concepcion. There is an enforceable arbitration contract,
which is neither illusory nor substantively unconscionable. Class arbitration cannot be
inferred from the language of the Agreement. Nor did plaintiff sufficiently show

                                              3
arbitration would not be a suitable forum to vindicate his statutory rights under the Labor
Code. Finally, the National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA) does
not govern the Agreement.
              Additional facts are set out in the discussion


                                       DISCUSSION


1. Applicability of the FAA
              The trial court found the FAA governed the Agreement. The FAA applies
to arbitration provisions in contracts “evidencing a transaction involving commerce.” (9
U.S.C. § 2; see Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. __ , __ [130 S.Ct.
2772, 2776].) The commercial transaction need only indirectly affect or relate to
interstate commerce. (See Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388
U.S. 395, 401-402, fn. 7.) Defendant has the burden to show the FAA applies (Shepard
v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101) and met its
burden in a declaration submitted in support of the motion to compel arbitration. The
declaration states defendant operates hotels throughout the United States and is involved
in interstate commerce daily. (Thorup v. Dean Witter Reynolds, Inc. (1986) 180
Cal.App.3d 228, 233 [employment contract between brokerage firm and account
executive “indisputabl[y]” involves interstate commerce and governed by FAA].)
              In his opening brief plaintiff does not challenge the trial court’s finding.
Rather, he assumes the applicability of the FAA in making other arguments. It was not
until the reply brief that plaintiff argues the FAA does not govern the Agreement. This
claim has no merit.
              Relying on the language of the Agreement, plaintiff maintains there is scant
reference to the FAA, the Agreement excludes claims not arbitrable under state or federal
law, and highlights a term providing arbitration is to be conducted according to the

                                              4
California Arbitration Act. But parties to an arbitration agreement subject to the FAA are
free to agree to use California procedural law. (Cronus Investments, Inc. v. Concierge
Services (2005) 35 Cal.4th 376, 383, 384-385.) In that circumstance, there is no conflict
between the two statutory schemes. (Id. at pp. 389-390.)


2. Unconscionability
              Plaintiff contends the Agreement may not be enforced because it is
unconscionable. To invalidate an arbitration agreement, it must be both procedurally and
substantively unconscionable. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519,
1533.) “The procedural element focuses on the unequal bargaining positions and hidden
terms common in the context of adhesion contracts. [Citation.] . . . [T]he substantive
element . . . traditionally involves contract terms that are so one-sided as to ‘shock the
conscience,’ or that impose harsh or oppressive terms. [Citation.]” (24 Hour Fitness,
Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1213.) The two types of
unconscionability need not be equally present. “[T]he more substantively oppressive the
contract term, the less evidence of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, italics omitted.)
              Plaintiff argues the Agreement was substantively unconscionable. First, he
contends that because defendant can unilaterally modify the Agreement it is an illusory
contract. Plaintiff recognizes the Agreement provides it may be “modified only by a
writing signed by the Chief Executive Officer or the President of the Company and me”
but points out defendant has the right to unilaterally change employment terms. We
agree with the general proposition an employer has such a right.
              “The at-will presumption authorizing an employer to discharge or demote
an employee similarly and necessarily authorizes an employer to unilaterally alter the
terms of employment, provided that the alteration does not violate a statute or breach an

                                              5
implied or express contractual agreement. [Citations.] An ‘employee who continues in
the employ of the employer after the employer has given notice of changed terms or
conditions of employment has accepted the changed terms and conditions.’ [Citation.]”
(Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 619-620.)
              Plaintiff posits that defendant can revise its arbitration agreement at any
time and if plaintiff continues working he has accepted its terms. He states he “cannot
leave [his] employment.” This results, he claims, in a unilateral agreement that is illusory
and thus substantively unconscionable and unenforceable.
              A similar argument was considered and rejected in 24 Hour Fitness, Inc. v.
Superior Court. It held the employer’s power to revise a personnel handbook containing
an arbitration provision “indisputably carrie[d] with it the duty to exercise that right fairly
and in good faith. [Citation.]” (24 Hour Fitness, Inc. v. Superior Court, supra, 66
Cal.App.4th at p. 1214.) That duty binds defendant here as well. And, as in 24 Hour
Fitness, there is no claim defendant attempted to modify the arbitration provision to make
it unilateral. (Ibid., fn. 11.) “So construed, the modification provision does not render
the contract illusory.” (Id. at p. 1214; see also Avery v. Integrated Healthcare Holdings,
Inc. (2013) 218 Cal.App.4th 50, 61 [duty of good faith and fair dealing protects
employee’s “reasonable expectations under the [arbitration] agreement”].)
              Plaintiff’s second reason the Agreement is substantively unconscionable is
based on the attorney fee provision. It states attorney fees shall be awarded to the
prevailing party if “the law applicable to the claim(s) being arbitrated” allows them.
Plaintiff asserts his claims do not allow an award of attorney fees to the prevailing party
but only to the prevailing employee. (§§ 226, subds. (e) & (g), 1194.) He maintains the
Agreement “appears to exclude the recovery of attorney[] fees under these types of ‘one-
way’ attorney[] fees statutes.” Not so. The language of the Agreement limits the award
of attorney fees to those permitted under applicable law. If the statute does not allow a
prevailing employer to recover attorney fees, the Agreement does not allow it either.

                                              6
              Because the Agreement is not substantively unconscionable, it matters not
whether it is procedurally unconscionability (Stirlen v. Supercuts, Inc., supra, 51
Cal.App.4th at p. 1533) and we need not and do not analyze that element.


3. Arbitration of Individual Claims
              Plaintiff argues that if the Agreement is enforceable, arbitration must
include the class claims. The Agreement contains no language providing for class action
arbitration and we are not persuaded by plaintiff’s arguments class arbitration is
authorized.


              a. Class Claims in General
              In Stolt-Nielsen S.A. v. Animalfeeds International (2010) 559 U.S. 662
(Stolt-Nielsen) the court considered the issue of “whether the parties agreed to authorize
class arbitration.” (Id. at p. 687.) The arbitration agreement in question was silent as to
class arbitration and the parties had stipulated they had not agreed to such a procedure.
Nevertheless the arbitrators decided class arbitration was permitted under the agreement.
When the case finally went to the Supreme Court, it invalidated that decision and in
doing so laid out some basic principles governing the interpretation of arbitration
agreements vis-à-vis class actions, making it the generally authoritative case on this issue.
              Under the FAA a party may not be forced to engage in class arbitration
unless the agreement shows the party agreed to do so. (Stolt-Nielsen, supra, 559 U.S. at
p. 684.) An arbitration agreement must be construed to “‘give effect to the contractual
rights and expectations of the parties.’ [Citation.]” (Id. at p. 682.) “An implicit
agreement to authorize class-action arbitration . . . is not a term that . . . may [be]
infer[red] solely from the fact of the parties’ agreement to arbitrate. . . . [C]lass-action
arbitration changes the nature of arbitration to such a degree that it cannot be presumed
the parties consented to it by simply agreeing to submit their disputes to an arbitrator.”

                                               7
(Id. at p. 685.) “[T]he differences between bilateral and class-action arbitration are too
great for arbitrators [or courts] to presume . . . that the parties’ mere silence on the issue
of class-action arbitrations constitutes consent to resolve their disputes in class
proceedings.” (Id. at p. 687, fn. omitted.)
              Kinecta Alternative Financial Solutions, Inc. v. Superior Court (2012) 205
Cal.App.4th 506 (Kinecta) is in accord. In Kinecta the court held the plaintiff-employer
could not be compelled to arbitrate class claims because it had never agreed to do so.
The plaintiff and one of its employees signed an employment agreement containing an
arbitration provision. Although the provision did not expressly waive class arbitration,
the language referred only to the employee and did not mention any other employees.
The trial court granted Kinecta’s motion to compel arbitration of her individual wage and
hour claims but denied its motion to dismiss the class claims.
              On appeal, citing Stolt-Nielsen, the court reversed the trial court’s ruling
denying dismissal of the class claims (Kinecta, supra, 205 Cal.App.4th at p. 519),
reasoning that the language of the arbitration provision limited arbitration to the
individual parties (id. at pp. 509, 517-518).
              Stolt-Nielsen specifically did not “decide what contractual basis may
support a finding that the parties agreed to authorize class-action arbitration.” (Stolt-
Nielsen, supra, 559 U.S. at p. 687, fn. 10.) Rather, we must rely on traditional principles
of contract interpretation. (Id. at p. 681 [“interpretation of an arbitration agreement is
generally a matter of state law”].)
              “‘The fundamental rule is that interpretation of . . . any contract . . . is
governed by the mutual intent of the parties at the time they form the contract. [Citation.]
The parties’ intent is found, if possible, solely in the contract’s written provisions.
[Citation.] “The ‘clear and explicit’ meaning of these provisions, interpreted in their
‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special
meaning is given to them by usage’ [citation], controls judicial interpretation.”

                                                8
[Citation.] If a layperson would give the contract language an unambiguous meaning, we
apply that meaning.’ [Citations.]” (Nelsen v. Legacy Partners Residential, Inc. (2012)
207 Cal.App.4th 1115, 1129 (Nelsen).)
              The Agreement here is not susceptible to an interpretation a class action
was authorized or agreed upon. There is no explicit mention of class arbitration.
Moreover, the language does not lend itself to a construction authorizing class arbitration.
The Agreement states: “The Company and I . . . agree and acknowledge that final and
binding arbitration shall be the exclusive forum to hear and decide any dispute between
the Company and me. . . . Thus, the Company agrees to bring any claim it may wish to
assert against me only through arbitration, and I agree to bring any claim I may wish to
assert against the Company only through arbitration. . . . [¶] . . . [¶] This Agreement may
be modified only by a writing signed by the Chief Executive Officer or the President of
the Company and me . . . .” (Italics added.) It also provides, “By signing this agreement,
the Company and I acknowledge that the right to a court trial and trial by jury is of value,
and we knowingly and voluntarily waive such right for any dispute subject to the terms of
this agreement.” (Italics added, boldface & capitalization omitted.)
              The Agreement demonstrates arbitration was limited to disputes between
plaintiff and defendant. (See Kinecta, supra, 205 Cal.App.4th at p. 519 [similar language
sufficient to support order dismissing class claims]; see also Nelsen, supra, 207
Cal.App.4th at pp. 1129-1130 [language in arbitration agreement “only covers claims,
disputes, and controversies ‘between myself (the plaintiff) and [the defendant]’” and
“unambiguously negates any intention by [the defendant] to arbitrate claims or disputes
to which [the plaintiff] was not a party”].)
              Plaintiff argues class arbitration is implied by the fact defendant, who is far
more sophisticated, drafted the Agreement and has “sole responsibility” for that, did not
include a specific waiver. But, while it certainly would have been clearer had there been
specific language barring class arbitration, that defendant drafted an agreement without

                                               9
such precise language does not mean class arbitration can be implied based on the
existing language that restricts arbitrations to claims between the parties.
                Nor does the fact the Agreement provides arbitration will be conducted “in
conformity with” the Federal Rules of Civil Procedure (FRCP) and Federal Rules of
Evidence (FRE). Plaintiff seizes on FRCP Rule 23, which deals with class actions,
claiming that if defendant did not want to include class actions it could have excluded
that rule. But there are other rules in both the FRCP and FRE that would have no bearing
on an arbitration, including, for example, FRCP rules 16 (pretrial conferences), 56
(summary judgment), 65 (temporary restraining orders and preliminary injunctions), and
73 (trial by a magistrate judge) and FRE rules 410 (inadmissibility of certain pleas in
criminal cases), 412 (prohibited evidence in criminal cases), 413 (admissible evidence in
criminal sexual assault cases, 314 (admissible evidence in child molestation cases), and
the like.
                There is no reason to require an arbitration agreement to specifically
exclude all rules that might not apply in a given instance. It is clear from the
Agreement’s language that reference to the FRCP and FRE provides a framework for the
authorized arbitration and does not expand on or add to the language in the Agreement
itself. Plaintiff’s argument he expected to be able to arbitrate class claims due to
reference to the FRCP is directly contrary to his declaration where he stated he did not
realize he had even signed the Agreement or remember “being told anything about
arbitration.”


                b. FAA and Preemption of Substantive Claims
                Plaintiff emphasizes the FAA does not require a party to give up
substantive rights by agreeing to arbitration. We do not disagree with that general rule.
But plaintiff can litigate his individual substantive rights in the arbitration.



                                               10
              Plaintiff relies heavily on Gentry v. Superior Court (2007) 42 Cal.4th 443
(Gentry) to support his argument the class claims must be arbitrated. In Gentry, the
plaintiff filed a putative class action against his employer for alleged wage and hour
violations, some of which were based on Labor Code sections protecting unwaivable
rights. Although the arbitration agreement between the plaintiff and the employer
expressly waived the right to a class action, our Supreme Court held that waiver
unenforceable. (Id. at p. 457.) It concluded that “when it is alleged that an employer has
systematically denied proper overtime pay to a class of employees and a class action is
requested notwithstanding an arbitration agreement that contains a class arbitration
waiver, the trial court must consider [four] factors . . . .” (Id. at pp. 462-463.) If these
four factors are shown and the court determines on that basis that class arbitration is
“likely to be a significantly more effective practical means of vindicating the rights of
affected employees than individual litigation or arbitration,” and the applicable statutes
would be “less comprehensive[ly] enforce[d]” if a class action was not allowed, then the
class arbitration waiver must be voided. (Id. at p. 463.)
              It is an open question as to whether Gentry remains good law after
Concepcion, which overruled Discover Bank v. Superior Court (2005) 36 Cal.4th 148.
Discover Bank concluded that class action arbitration waivers in most consumer adhesion
contracts are unconscionable and therefore unenforceable. (Id. at pp. 162-163.)
Concepcion held the rule in Discover Bank was preempted by the FAA because “it
‘stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress . . . .’” (Concepcion, supra, 563 U.S. at p. __ [131 S.Ct. at p.
1753].) A state “cannot require a procedure that is inconsistent with the FAA, even if it
is desirable for unrelated reasons” (ibid.), nor can it “prohibit[] outright the arbitration of
a particular type of claim” (id. at p. __, [131 S.Ct. at p. 1747).
              Although Gentry was based on principles similar to those in Discover Bank,
Concepcion did not address it. Thus, cases are split as to whether Gentry remains viable.

                                              11
(Compare e.g., Kinecta, supra, 205 Cal.App.4th at p. 516 [“Gentry appears to remain the
binding law in California” despite Concepcion; dicta; italics added; Truly Nolen v.
Superior Court, supra, 208 Cal.App.4th 487 [although Concepcion “implicitly
disapproved” Gentry, court will not “disregard” decision without “specific guidance”
from California Supreme Court] with, e.g., Morvant v. P.F. Chang’s China Bistro, Inc.
(N.D.Cal. 2012) 870 F.Supp.2d 831, 840-841 [no distinction between Discover Bank and
Gentry and class action waiver must be enforced under Concepcion].) The California
Supreme Court is considering this issue in Iskanian v. CLS Transportation of Los
Angeles, LLC (2012) 206 Cal.App.4th 949 (Iskanian), review granted September 19,
2012, S204032. But we need not decide this question because even if the case remains
good law, plaintiff has not satisfied his burden under Gentry.
              To invalidate an express waiver of the right to file a class action, or, in this
case, to read the right to arbitrate a class action into the Agreement, plaintiff has the
burden to provide sufficient facts (Gentry, supra, 42 Cal.4th at p. 463) to show: (1) “the
modest size of the potential individual recovery”; (2) “the potential for retaliation against
members of the class”; (3) “the fact that absent members of the class may be ill informed
about their rights”; and (4) “other real world obstacles to the vindication of class
members’ rights to [timely payment of wages upon termination] through individual
arbitration” (ibid.). In deciding whether plaintiff has met the burden, the court has broad
discretion. (Id. at pp. 463-464.)
              Early in the hearing on the motion the court stated it had not considered the
Gentry factors, relying on Iskanian, which held the FAA preempted state law that
invalidated class action waivers in wage and hour arbitrations. But when plaintiff’s
counsel pressed the court on the issue, the court allowed him to argue the Gentry
elements. Counsel did not, however, refer to evidence set out in the declarations he had
filed and that are discussed below. Although the court did not set out a Gentry analysis in
the ruling, the minute order states there had not been a sufficient showing that individual

                                              12
arbitration would be an inadequate forum to fulfill the public policy of ensuring proper
payment of wages, which is the underlying rationale of Gentry.
              In an attempt to satisfy the Gentry burden, in addition to his own
declaration and those of two of his lawyers, plaintiff relied heavily on the declarations of
four attorneys who have not appeared in this case. He acknowledges in his brief that the
declarations were not specific to this case, instead prepared for another matter, but asserts
they “supported[] and expanded on” evidence set out in the declaration of his lawyer.
              Defendant objected to the declarations on a variety of grounds, including
relevance, both because Concepcion overruled Gentry and because the declarations were
filed in a different case with different facts. Other objections included lack of foundation
and personal knowledge, vague and ambiguous, speculative, argumentative, and calling
for a legal conclusion. The court sustained all of the objections to the four declarations
without explanation.
              Plaintiff argues the objection based on Concepcion is “incorrect” because
the California Supreme Court is considering that very issue in Iskanian. But he fails to
address any of the other grounds raised by defendant, merely claiming the declarations
“should have been considered.” (Capitalization & boldface omitted.) Nor does he cite
any authority for his claim. This is an insufficient argument and the issue is forfeited.
(Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
              The evidence in the remaining declarations is not sufficient to meet the
Gentry test. For example, plaintiff did not show other class members may be unaware of
their rights. He stated he himself was ill-informed but supplied no evidence, other than
statements in the excluded declarations, about putative class members. His argument
they are “typically ill-informed about their rights” is insufficient. “Assuming the Gentry
standard survives the United States Supreme Court holdings [in Concepcion and Stolt-
Nielsen], the factual analysis as to whether the Gentry factors apply in any particular case
must be specific, individualized, and precise.” (Truly Nolen of America v. Superior

                                             13
Court (2012) 208 Cal.App.4th 487, 511.) Thus, Gentry does not require class arbitration.
We have no need to remand the matter back to the trial court to make this determination.


4. Federal Labor Laws
              Citing D.R. Horton (2012) 357 NLRB No. 184 [2012 WL 36274], plaintiff
claims dismissal of his class action claims violates substantive rights under both the
NLRA and the Norris-LaGuardia Act (29 U.S.C. § 101 et seq.; NGLA). In Horton, the
National Labor Relations Board (Board) held an arbitration provision in an employment
agreement requiring individual arbitration and barring class claims as to wage, hour and
working condition complaints violated the NLRB. (D.R. Horton, supra, 2012 WL at p.
*1.) The Board reasoned this type of provision violated employees’ substantive rights
found in section 7 of the NLRA to “engage in . . . concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” (Id. at p. *2; 29 U.S.C. §§ 102,
103, 157.) The Board also decided the strong public policy in the NLRA to ensure
employees have the right to collectively act overrode the FAA and Concepcion. (Horton,
supra, 2012 WL at pp. *15, *16.)
              Plaintiff argues Horton requires class arbitration. Nelsen, supra, 207
Cal.App.4th 1115 rejected a similar argument for several reasons. First, federal
administrative decisions do not bind us. (Id. at p. 1133.) Second, the decision “falls well
outside the Board’s core expertise in collective bargaining and unfair labor practices.”
(Id. at p. 1134.) And, third, at least two federal district courts (and now several more)
had declined to follow Horton. (E.g., Jasso v. Money Mart Express, Inc. (N.D.Cal. 2012)
879 F.Supp.2d 1038, 1048-1049; LaVoice v. UBS Financial Services, Inc. (S.D.N.Y.,
Dec. 3, 2012, No. CIV. 238 (BSJ) (JLC)) 2012 WL 124590, p. *6.) (Nelsen, supra, 207
Cal.App.4th at p. 1134; see also Truly Nolen of America v. Superior Court, supra, 208
Cal.App.4th at pp. 514-515 [declined to follow because “Horton’s analysis is
unsupported”].) We find these reasons persuasive and reject this argument as well.

                                             14
5. Miscellaneous
              If there are any other arguments on which plaintiff is relying, they are
forfeited for lack of a discrete section of the brief with its own heading (Cal. Rules of
Court, rule 8.204(a)(1)(B)) and supporting citations and reasoned legal argument (Evans
v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 160).


                                      DISPOSITION


              The order is affirmed. Defendant is entitled to costs on appeal.




                                                  THOMPSON, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




                                             15
