Filed 12/18/14 Gillespie v. Western Pacific Housing Management CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



REBECCA RENEE GILLESPIE,                                            D066354

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. CIVSS710814)

WESTERN PACIFIC HOUSING
MANAGEMENT, INC.,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino, John M.

Pacheco, Judge. Reversed.

         Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff, Catherine J. Coble,

Angel H. Ho and Vanessa C. Krumbein for Defendant and Appellant.

         Kingsley and Kingsley, Eric B. Kingsley, Darren M. Cohen, Liane Katzenstein Ly

and Kelsey M. Szamet for Plaintiff and Respondent.

         In this action for alleged Labor Code violations as to meal and rest periods brought

by plaintiff Rebecca Renee Gillespie, defendant Western Pacific Housing Management,
Inc. (Western Pacific) brought a motion to compel arbitration, pursuant to a mutual

arbitration agreement (MAA). The court denied the motion finding (1) Western Pacific

waived its right to enforce the agreement by litigating the action for four years before

seeking to compel arbitration, and (2) the MAA was unconscionable.

       On appeal Western Pacific asserts the court erred by (1) finding the MAA was

unconscionable and (2) finding that it waived the right to compel arbitration. We

conclude that Western Pacific did not waive its right to compel arbitration. We also

conclude that the MAA is not unconscionable. Further, as we shall discuss, the class

action waiver is enforceable. However, we also conclude that the class action waiver

cannot apply to Gillespie's claim under the Private Attorneys General Act of 2004

(PAGA) (Lab. Code, § 2698 et seq.). Accordingly, we reverse the court's order denying

the motion to compel arbitration and remand this matter for further proceedings

consistent with this opinion.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. The Parties

       Beginning in March 2006, Gillespie was employed by Western Pacific. Western

Pacific is a homebuilding company based in Texas that builds homes in California.

Gillespie worked as a sales representative in Southern California selling homes.

       B. The MAA

       Shortly after she was hired, Gillespie signed the MAA.

       The MAA provided that all employment-related claims, including those related to

wages, were subject to arbitration:

                                             2
          "Employee and the Company . . . agree that all disputes and claims
          between them, including those relating to Employee's employment
          with the Company and any separation therefrom . . . shall be
          determined exclusively by final and binding arbitration before a
          single, neutral arbitrator . . . . Claims subject to arbitration under
          this Agreement include without limitation claims for discrimination
          or harassment; wages, benefits of other compensation . . . ." (Italics
          added.)

       The MAA also provides that the "arbitrator may hear only Employee's individual

claims and does not have the authority to fashion a proceeding as a class or collective

action or to award relief to a group or class of employees in one arbitration proceeding."

       C. The Underlying Litigation

       In October 2007 Gillespie filed a class action lawsuit on behalf of herself and all

individuals employed by Western Pacific in the position of salesperson within California

from four years prior to the filing of the action. The complaint alleged Western Pacific

improperly classified her and other salespersons as exempt from overtime law and that, as

a result, she and other salespersons did not receive required meal and rest breaks. The

complaint asserted causes of action for violation of meal and rest break law, penalties

pursuant to Labor Code section 203, and violation of Business and Professions Code

section 17200. In November 2007 Gillespie filed a first amended complaint adding a

cause of action for violation of Labor Code section 2699. The parties thereafter

stipulated to transfer venue from Alameda County to San Bernardino County.

       Western Pacific answered the complaint several weeks after the California

Supreme Court's decision in Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), in

which class action waivers in employment agreements were held to be unenforceable,


                                             3
and, if parties sought to enforce such waivers, they could be forced into class action

arbitration. Recognizing that moving to compel arbitration would, in light of Gentry, be

futile, the parties proceeded to partially litigate Gillespie's claims. The parties agreed (1)

to send a precertification notice to putative class members and (2) to the production of

basic contact information about putative class members. Western Pacific deposed

Gillespie, but Gillespie took no depositions.

       D. The Stay of Proceedings

       In December 2009 Western Pacific filed an ex parte application seeking to stay all

proceedings pending the California Supreme Court's resolution of Brinker v. Superior

Court (2008) 165 Cal.App.4th 25, review granted October 22, 2008, S166350 (Brinker),

as that decision would impact resolution of this action. Gillespie opposed Western

Pacific's ex parte application, asserting Brinker was not dispositive of this action.

       The trial court denied Western Pacific's ex parte application, but set the matter for

a noticed hearing on Western Pacific's motion to stay this litigation. On February 10,

2010, the court granted Western Pacific's motion to stay all proceedings until August

2010, pending the decision by the Supreme Court in Brinker. Thereafter, the court

stayed the matter several more times, the last stay having been issued April 11, 2012, the

day before Brinker was decided.

       Each time the stay was continued, the trial court and both parties acknowledged

Brinker's importance to resolution of this action. In its August 9, 2010 order extending

the stay, the trial court stated, "Counsel stipulate that the Brinker case does apply to the

case. . . . Counsel agree the stay i[s] appropriate." In January 2011 the parties stipulated

                                                4
"[t]he Supreme Court still has not issued a decision in Brinker. Accordingly, the parties

agree that a further stay of at least 180 days is appropriate, unless the Supreme Court

issues a decision sooner. [¶] . . . The Parties thus request that the Court extend the stay of

the action until the next Case Management Conference." In August 2011, when

continuing the stay, the trial court acknowledged that "[c]ounsel inform[ed] the court they

are [still] waiting a decision from the California Supreme Court." In February 2012 the

trial court again extended the stay, noting that "[c]ounsel still waiting on decision from

the Calif[ornia] Supreme Court." On April 11, 2012, the trial court again continued the

stay "at [the] request of counsel for all parties." Gillespie opposed the motion, arguing:

(1) the MAA was both procedurally and substantively unconscionable; (2) Western

Pacific waived its right to compel arbitration through unreasonable delay and use of the

judicial process, to the prejudice of Gillespie; (3) the MAA was in violation of the

National Labor Relations Act (NLRA) and was therefore unenforceable; (4) under the

holding in Gentry, supra, 42 Cal.4th 443, the MAA would be invalidated; and (5) the

MAA barred Gillespie from acting as a private attorney general to recover under PAGA

based on the holding of Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489.

       F. Court's Ruling

       At the hearing on Western Pacific's motion to compel arbitration, the trial court

addressed both the waiver and unconscionability issues raised by Gillespie in her

opposition to the motion to compel arbitration. On the issue of waiver, the court noted

that "this has been going on for four years." The court noted that the case had been

stayed pending the Brinker decision, but stated that "a lot of cost and everything has been

                                              5
expended in litigation and everything, and I just think it's better that I stick with my

tentative." As to the issue of unconscionability, the court addressed concerns about the

MAA's one-way provision that allowed Western Pacific to terminate the arbitration

clause, but "plaintiff does not have that right." The court also inquired about the choice

of law provision. Western Pacific acknowledged "[t]he arbitration agreement, it says that

either Texas law or the Federal Arbitration Act will apply." However, Western Pacific

told the court that, despite what the MAA stated, the claims would be resolved under

California law.

       Counsel for Gillespie also addressed the clause providing that actions for

declaratory relief could be brought in state court, but all other claims must be arbitrated.

Counsel pointed out that although that clause was facially neutral, it favored employers as

they were the only party likely to seek declaratory relief. The court agreed, stating,

"[Y]eah, another reason why it would be unconscionable." The court then took the

matter under submission.

       Thereafter, the trial court denied Western Pacific's motion finding that

"[d]efendant waived [its] right to seek arbitration and the MAA is [u]nconscionable."




                                              6
                                       DISCUSSION

                                       I. ANALYSIS

       A. Waiver

       A trial court may deny a petition to compel arbitration on the ground of waiver.

(Code Civ. Proc.,1 § 1281.2, subd. (a).) Relevant factors to consider in assessing waiver

claims include: "'"(1) whether the party's actions are inconsistent with the right to

arbitrate; (2) whether 'the litigation machinery has been substantially invoked' and the

parties 'were well into preparation of a lawsuit' before the party notified the opposing

party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement

close to the trial date or delayed for a long period before seeking a stay; (4) whether a

defendant seeking arbitration filed a counterclaim without asking for a stay of the

proceedings; (5) 'whether important intervening steps [e.g., taking advantage of judicial

discovery procedures not available in arbitration] had taken place'; and (6) whether the

delay 'affected, misled, or prejudiced' the opposing party."'" (St. Agnes Medical Center v.

PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)

       However, courts cannot lightly infer waiver. (St. Agnes Medical Center v.

PacificCare of California, supra, 31 Cal.4th at p. 1195.) The party asserting waiver

bears a heavy burden and "any doubts regarding a waiver allegation should be resolved in

favor of arbitration." (Ibid.)




1      All further undesignated statutory references are to the Code of Civil Procedure.
                                              7
       Here, Gillespie cannot meet this heavy burden. As we have noted, ante, Western

Pacific filed its motion to compel arbitration shortly after the decision in Brinker was

issued. As we have also noted, in agreeing to multiple stays of the proceedings in this

action, the parties acknowledged the importance of Brinker to resolution of this action.

Thus, we cannot say that Western Pacific's actions evidenced an intent to waive

arbitration.

       In finding waiver, the trial court relied on litigation activities and expenses that

occurred before the action was stayed. In this regard Gillespie submitted two

declarations in opposition to Western Pacific's motion to compel arbitration: a

declaration from herself and one from her counsel. Her declaration relates to her

participation in discovery before the trial court's initial stay order. Her counsel's

declaration similarly relates to litigation activity occurring before the initial stay order,

with the exception of a statement that putative class members contacted Gillespie's

counsel while the stay was pending. However, this ignores the fact that at the time this

action was filed, Gentry, supra, 42 Cal.4th 443, had held that class action waivers were

unenforceable. Therefore, it would have been futile to move to compel arbitration based

upon the law existing at that time.

       B. Unconscionabilty

       1. Applicable authority

       A written contractual provision to submit to arbitration any disputes arising out of

the contract is "valid, enforceable and irrevocable, save upon such grounds as exist for

the revocation of any contract." (Code Civ. Proc., § 1281; Kinney v. United HealthCare

                                               8
Services, Inc. (1999) 70 Cal.App.4th 1322, 1327.) Unconscionability is one of those

grounds. (Civ. Code, § 1670.5, subd. (a); Szetela v. Discover Bank (2002) 97

Cal.App.4th 1094, 1099 (Discover Bank).)

       "'Unconscionability is ultimately a question of law for the court.' [Citation.]

However, numerous factual issues may bear on that question. [Citation.] Where the trial

court's determination of unconscionability is based upon the trial court's resolution of

conflicts in the evidence, or on the factual inferences which may be drawn therefrom, we

consider the evidence in the light most favorable to the court's determination and review

those aspects of the determination for substantial evidence." (Gutierrez v. Autowest, Inc.

(2003) 114 Cal.App.4th 77, 89.)

       "[T]he doctrine [of unconscionability] '"has both a 'procedural' and a 'substantive'

element."'" (Little v. Auto Steigler, Inc. (2003) 29 Cal.4th 1064, 1071; Armendariz v.

Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).)

"'The prevailing view is that [procedural and substantive unconscionability] must both be

present in order for a court to exercise its discretion to refuse to enforce a contract or

clause under the doctrine of unconscionability.' [Citation.] But they need not be present

in the same degree. 'Essentially a sliding scale is invoked which disregards the regularity

of the procedural process of the contract formation, that creates the terms, in proportion

to the greater harshness or unreasonableness of the substantive terms themselves.'

[Citations.] In other words, the 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, supra, 24 Cal.4th at p. 114.)

                                               9
       2. Analysis

       a. The MAA is not procedurally unconscionable

       Procedural unconscionability "addresses the circumstances of contract negotiation

and formation, focusing on oppression or surprise due to unequal bargaining power."

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US) LLC (2012) 55

Cal.4th 223, 246 (Pinnacle).) Here, there is no evidence of "surprise" with regard to the

formation of the MAA. This element refers to situations where an arbitration provision is

hidden in an agreement drafted by the party seeking to enforce it. (Flores v.

Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 853.)

       Here, the MAA is a separate agreement and the arbitration provision is clear and

conspicuous. Thus, the MAA's arbitration provision does not contain any element of

"surprise."

       Likewise, Gillespie there is no evidence of oppression. Indeed, at her deposition,

after admitting she signed the MAA, Gillespie conceded that she did not even remember

being presented with it. Thus, there is no evidence she signed the MAA unwillingly.

       Thus, because there is little or no evidence that the MAA is procedurally

unconscionable, Gillespie must demonstrate the MAA's substance was highly

unconscionable.

       b. The arbitration provision is not substantively unconscionable

       Substantive unconscionability relates to "the fairness of an agreement's actual

terms and to assessments of whether they are overly harsh or one-sided. . . . [T]he term

must be 'so one-sided as to "shock the conscience.'" (Pinnacle, supra, 55 Cal.4th at p.

                                            10
246.) For purposes of unconscionability, an arbitration agreement must lack bilateralism.

To be enforceable, it must require both parties to submit their claims to arbitration.

(Armendariz, supra, 24 Cal.App.4th at pp. 117-120.

       Here, the MAA meets this requirement. It applies to both Western Pacific and

Gillespie and requires them both to arbitrate their disputes arising from her employment.

       The trial court's comments at the hearing indicated it was concerned regarding two

aspects of the MAA: the modification provision and the carve-out for declaratory and

equitable relief in paragraph 2. However, neither of these issues supports a finding of

substantive unconscionability.

       Paragraph 8 of the MAA grants Western Pacific a limited right to modify the

terms of the MAA. It must provide 30 days' notice of the modification and changes may

only be prospective. In this regard the MAA provides: "This Agreement may be

modified or revoked by the Company by providing thirty days written notice to

employees. Any modification or revocation shall not be effective until after the thirty

day notice period, shall be prospective only, and shall not apply to any claims already

initiated by either party." (Italics added.)

       This provision is not unconscionable. As long as an employer's ability to modify

is appropriately limited so as to ensure good faith and fair dealing, unilateral modification

provisions are enforceable:

           "'"[W]here the contract specifies performance the fact that one party
           reserves the power to vary it is not fatal if the exercise of the power
           is subject to prescribed or implied limitations such as the duty to
           exercise it in good faith and in accordance with fair dealings."'
           [Citations.] [The employer's] discretionary power to modify the

                                               11
            terms of the personnel handbook in writing notice indisputably
            carries with it the duty to exercise that right fairly and in good faith.
            [Citation.] . . . So construed, the modification provision does not
            render the contract illusory." (24 Hour Fitness, Inc. v. Superior
            Court (1998) 66 Cal.App.4th 1199, 1214.)

         Thus, the MAA's modification provision is not unconscionable.

         At the hearing on Western Pacific's motion to compel arbitration, the trial court

indicated it believed the MAA was unconscionable because paragraph 2 excludes from

arbitration declaratory or injunctive relief claims regarding confidentiality, non-

competition, or similar obligations. This provision does not render the MAA

unconscionable.

         This is so because even if the MAA's provision excluding such claims from

arbitration was improper, the trial court could have severed it, and indeed was required to

do so. In Little v. Auto Steigler, Inc., supra, 29 Cal.4th 1064, the California Supreme

Court considered an employment arbitration agreement that included a provision

providing a right to only the employer to appeal an arbitration award in excess of

$50,000. (Id. at p. 1071.) Recognizing that the appeal was unilateral, and thus

unconscionable, the California Supreme Court held that the trial court was required to

sever the offending provision and enforce the balance of the agreement. (Id. at pp. 1072-

1076.)

         Similarly, in Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 985 the Court of

Appeal found that a trial court's refusal to sever from an arbitration agreement a provision

limiting discovery was an abuse of discretion:



                                               12
          "Even if we assume the discovery provision to be unconscionable,
          which we do not, the trial court abused its discretion by refusing to
          sever it. Where, as here, only one provision of an agreement is
          found to be unconscionable and that provision can easily be severed
          without affecting the remainder of the agreement, the proper course
          is to do so." (See McManus v. CIBC World Markets Corp. (2003)
          109 Cal.App.4th 76, 101-102 [severing provision in employment
          arbitration agreement requiring employee to pay certain arbitration
          costs].)

       Thus, if the MAA's provision allowing both parties to seek injunctive or

declaratory relief in court is unconscionable because it is only likely that Western Pacific

would bring such a claim, the court was obligated to sever it and enforce the remainder of

the agreement.

       C. The MAA's Class Action Waiver Is Enforceable.

       Gillespie asserts that the class action waiver provision in the MAA is

unenforceable under Gentry, supra, 42 Cal.4th 443. However, that decision has now

been abrogated by AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ [131 S.Ct

1740] (Concepcion) and Iskanian v. CLS Transportation Los Angeles (2014) 59 Cal.4th

348 (Iskanian.)

       In Iskanian, supra, 59 Cal.4th 348, the California Supreme Court held that

"[u]nder the logic of Concepcion, the FAA [Federal Arbitration Act] preempts Gentry's

rule against employment class waivers." (Id. at p. 364.) As the court explained: "[T]he

fact that Gentry 's rule against class waiver is stated more narrowly than Discover Bank 's

rule does not save it from FAA preemption under Concepcion. The high court in

Concepcion made clear that even if a state law rule against consumer class waivers were

limited to 'class proceedings [that] are necessary to prosecute small-dollar claims that

                                             13
might otherwise slip through the legal system,' it would still be preempted because states

cannot require a procedure that interferes with fundamental attributes of arbitration 'even

if it is desirable for unrelated reasons.' [Citations.] It is thus incorrect to say that the

infirmity of Discover Bank was that it did not require a case-specific showing that the

class waiver was exculpatory. Concepcion holds that even if a class waiver is

exculpatory in a particular case, it is nonetheless preempted by the FAA." (Iskanian,

supra, at p. 364.)

       The Supreme Court also considered whether the class action waiver was invalid

under the NLRA and concluded in light of the FAA's "'"liberal federal policy favoring

arbitration"' (Concepcion, supra, [131 S.Ct. at p. 1745]), that sections 7 and 8 of the

NLRA do not represent '"a contrary congressional command"' overriding the FAA's

mandate [citation]." (Iskanian, supra, 59 Cal.4th at p. 373.) The Supreme Court

observed that its conclusion was "consistent with the judgment of all the federal circuit

courts and most of the federal district courts that have considered the issue." (Ibid.)

       As the United States Supreme Court held in Concepcion, if the state laws, rules, or

"judicial policy judgments" "stand as an obstacle to the accomplishment of the FAA's

objectives"—to enforce private parties' arbitration agreements—the state law, rule or

judicial policy judgment fails. (Concepcion, supra, 131 S.Ct. at p. 1748.) States could

no longer "'rely on the uniqueness of an agreement to arbitrate as a basis for a state-law

holding that enforcement would be unconscionable . . . .'" (Id. at p. 1747.) Thus,

Concepcion overruled Gentry, and the class action waiver is enforceable.



                                               14
       D. The PAGA Claims

       Gillespie also asserts that even if the MAA prevents her from maintaining a class

action against Western Pacific, it does not apply to her PAGA claims under Labor Code

section 2698 et seq. Gillespie is correct.

       The court in Iskanian also addressed the question of whether the plaintiff was

required to arbitrate his PAGA claim on an individual basis. Our high court began by

summarizing the PAGA provisions: "'Under the legislation, an "aggrieved employee"

may bring a civil action personally and on behalf of other current or former employees to

recover civil penalties for Labor Code violations. [Citation.] Of the civil penalties

recovered, 75 percent goes to the Labor and Workforce Development Agency, leaving

the remaining 25 percent for the "aggrieved employees." [Citation.] [¶] Before bringing

a civil action for statutory penalties, an employee must . . . give written notice of the

alleged Labor Code violation to both the employer and the Labor and Workforce

Development Agency . . . . If the agency notifies the employee and employer that it does

not intend to investigate . . . , the employee may commence a civil action.'" (Iskanian,

supra, 59 Cal.4th at p. 380.) According to the court, these provisions demonstrated that a

PAGA representative action is "a type of qui tam action" (id. at p. 382) that permits

"aggrieved employees, acting as private attorneys general, to recover civil penalties for

Labor Code violations, with the understanding that labor law enforcement agencies were

to retain primacy over private enforcement efforts." (Id. at p. 379.)

       The court then addressed whether California law prohibited the waiver of

representative PAGA claims and, if so, whether such a rule was enforceable under the

                                              15
FAA. The Court first concluded that such claims were unwaivable: "[A]n employment

agreement [that] compels the waiver of representative claims under the PAGA . . . is

contrary to public policy and unenforceable as a matter of state law." (Iskanian, supra,

59 Cal.4th at p. 384.) In reaching its conclusion, the court rejected defendant's assertion

that the particular waiver at issue was not against public policy because the plaintiff

retained his right to arbitrate his PAGA claim on an individual basis: "[W]hether or not

an individual claim is permissible under the PAGA, a prohibition of representative claims

frustrates the PAGA's objectives . . . [because] a single-claimant arbitration . . . for

individual penalties will not result in the penalties contemplated under the PAGA to

punish and deter employer practices that violate the rights of numerous employees under

the Labor Code. That plaintiff and other employees might be able to bring individual

claims for Labor Code violations in separate arbitrations does not serve the purpose of the

PAGA, even if an individual claim has collateral estoppel effects. [Citation.] Other

employees would still have to assert their claims in individual proceedings.'" (Ibid.,

italics omitted.)

       The Court then explained that the FAA did not preempt this rule of California law:

"Concepcion made clear [that] a state law rule may be preempted when it 'stand[s] as an

obstacle to the accomplishment of the FAA's objectives.' [Citation.] . . . [T]he rule

against PAGA waivers does not frustrate the FAA's objectives because . . . the FAA aims

to ensure an efficient forum for the resolution of private disputes, whereas a PAGA

action is a dispute between an employer and the state Agency." (Iskanian, supra, 59

Cal.4th at p. 384, italics omitted.) The Court concluded: "Nothing in the text or

                                              16
legislative history of the FAA nor in the Supreme Court's construction of the statute

suggests that the FAA was intended to limit the ability of states to enhance their public

enforcement capabilities by enlisting willing employees in qui tam actions." (Id. at p.

387.)

                                      DISPOSITION

        The order denying Western Pacific's petition to compel arbitration is reversed, and

the court is ordered to grant Western Pacific's motion to compel, with the exception of

Gillespie's PAGA claim. The parties shall bear their own costs on appeal.


                                                                                NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


McDONALD, J.




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