Filed 7/30/14 Venegas v. The Pep Boys etc. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


LESLIE VENEGAS,                                                      B249579

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC496327)
         v.

THE PEP BOYS MANNY MOE & JACK
OF CALIFORNIA,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. John
Shepard Wiley, Judge. Affirmed.
                                                         ______
         Morgan, Lewis & Bockius, John S. Battenfeld, and Thomas M. Peterson for
Defendant and Appellant.
         Capstone Law, Glenn A. Danas, and Ryan H. Wu for Plaintiff and Respondent.
                                                         ______
          Defendant The Pep Boys Manny Moe & Jack of California (Pep Boys) appeals
from the superior court’s order denying Pep Boys’ motion to compel arbitration.
The sole issue presented on appeal is the enforceability of a waiver of the right to
bring a representative action under the Labor Code Private Attorneys General Act
of 2004 (PAGA) (Lab. Code, § 2698 et seq.). That issue has recently been resolved
against Pep Boys by the Supreme Court’s decision in Iskanian v. CLS Transportation
Los Angeles, LLC (June 23, 2014, S204032) __ Cal.4th __ (Iskanian). We therefore
affirm.
          Plaintiff Leslie Venegas alleges that she was employed at a Pep Boys store from
August 2008 to October 2012. In December 2012, she filed suit against Pep Boys
“individually and in a representative capacity,” alleging a single claim under the PAGA
for numerous alleged violations of the Labor Code.
          Pep Boys moved to compel individual arbitration of Venegas’s claim. In
November 2011, Venegas entered into an arbitration agreement “[i]n return for [her]
employment with [Pep Boys] . . . and/or as consideration for such employment.” The
arbitration agreement applies to any claim “directly or indirectly related to [Venegas’s]
employment with [Pep Boys], [and] the terms and conditions of [that] employment.” The
arbitration agreement also includes the following waiver of the right to bring class or
representative actions: “To the maximum extent permitted by applicable law, the parties
agree that no Covered Claims may be initiated or maintained on a class action, collective
action or representative action basis either in court or arbitration. All claims must be
brought in a party’s individual capacity, and not as a plaintiff or class representative or
member or otherwise on behalf of others in any purported class, collective, or
representative proceeding. The parties further agree that if, for any reason, the waiver of
any ability to initiate or maintain a claim as a class, collective or representative action is
found to be unenforceable or invalid, then any such class, collective or representative
action claim shall be litigated and decided in a court of competent jurisdiction, and not in
arbitration. Any issue concerning the enforceability or validity of this waiver must be
decided by a court, and not by an arbitrator.” The arbitration agreement also includes a

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choice of law provision, stating that the agreement “is governed by the Federal
Arbitration Act and by the laws of the state where the Claim arose, to the extent those
laws are not inconsistent with and/or preempted by the Federal Arbitration Act.”
       The superior court denied Pep Boys’ motion on the basis of Brown v. Ralphs
Grocery Co. (2011) 197 Cal.App.4th 489 (Brown), which held that an employee’s
waiver of the right to bring a representative action under the PAGA is unenforceable
under California law. Pep Boys timely appealed.
       On appeal, Pep Boys argues that Brown was wrongly decided, that Venegas’s
waiver of the right to bring a representative action under the PAGA is enforceable, and
that any state law rule to the contrary is preempted by the Federal Arbitration Act (FAA)
as interpreted by AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct.
1740]. We must reject these contentions, because the Supreme Court rejected them in
Iskanian. The Court held 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,” and “the rule against PAGA waivers does not
frustrate the FAA’s objectives” and therefore is not preempted. (Iskanian, supra,
__ Cal.4th __ [pp. 36-37].) We consequently must affirm the order denying Pep Boys’
motion to compel individual arbitration of Venegas’s PAGA claim.
       Pep Boys also contends that if PAGA waivers are unenforceable, then that
rule will “encourage artful pleading” and “frustrate contractual rights.” (Boldface and
initial capitals omitted.) We disagree. Venegas alleges a single claim under the PAGA.
If she does not wish to allege other claims that would be subject to individual arbitration,
she is free to omit them. That omission does not constitute “artful pleading” in any
pejorative sense, it does not frustrate any party’s contractual rights, and we do not see
how a defendant is prejudiced by a plaintiff’s failure to allege some (arbitrable)
individual claims in addition to a representative PAGA claim.
       For all of the foregoing reasons, we affirm the order denying Pep Boys’ motion to
compel arbitration. Because the parties agreed that representative actions must be



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litigated if the representative action waiver is found unenforceable, Venegas’s claim
under the PAGA shall proceed in court, not in arbitration.
                                     DISPOSITION
      The order is affirmed. Appellant shall recover her costs of appeal.
      NOT TO BE PUBLISHED.




                                                ROTHSCHILD, P. J.
We concur:



             CHANEY, J.



             MILLER, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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