Jessica A. Golden vs. Pacpizza, LLC
Nature of Proceeding:
Filed By:
Petition to Compel Arbitration
Shalauta, Andrew R.
Defendant PacPizza, LLC’s Petition for Order Compelling Arbitration is DENIED. The plaintiff’s cross-request for imposition of sanctions under C.C.P., sec. 128.7 is DENIED.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 1.06(D). Local Rules for the Sacramento Superior Court are available on the Court’s website at

Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

Defendant’s Request for Judicial Notice is GRANTED.

Plaintiff’s original complaint was filed on June 3, 2010
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The operative pleading, plaintiff’s First Amended Complaint alleges causes of action For Wages Due, Failure to Provide Meal And Rest Periods, Reimbursement Under Labor Code Section 2802, Labor Code, sec. 203 Penalties, Failure To Comply With Itemized Wage Statement Provisions, Unfair Competition, Declaratory Relief, Accounting, Injunctive Relief, Penalties Pursuant To The Private Attorneys General Act.

This action has been litigated for three and a half years. Plaintiffs’ motion to certify this action as a class action was filed a year ago, and hard fought by defendants. It was certified as a class action by Judge Perkins on Dec. 6, 2013.

Defendant made no demand to arbitrate prior to Nov. 22, 2013, when it was apparent that the plaintiffs’ class would be certified. The Answer failed to allege an affirmative defense of arbitration.

A party may waive its right to demand arbitration. Although a written agreement to arbitrate an existing or future dispute is generally enforceable, a petition to compel arbitration will be denied when the right has been waived by the proponent’s failure to properly and timely assert it. (Code Civ. Proc., § 1281, 1281.2, (a).) In determining waiver, a court can consider “(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. Sobremonte v. Superior Court (1998) 61 Cal. App. 4th 980, 992

There is no single determinative test of waiver, and the question for the trial court is one of fact.
Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557. The Court acknowledges that arbitration is strongly favored. Nonetheless, defendant has waived its right to arbitrate based on the facts presented.

Plaintiff provides evidence that the class representative, Jessica A. Golden, was a minor (aged 16) when she signed the employment contract containing the arbitration clause. As a minor, her contract is void ab initio. (Golden Dec., paras. 2, 3.)

PacPizza’s actions in litigating this action for three and half years are inconsistent with its asserted desire to exercise its contractual right to arbitrate, as the litigation procedures have been substantially invoked, important intervening steps have taken place and the delay in demanding arbitration (and a stay of the entire remainder of the action) would prejudice the certified class. The enforcement of Plaintiffs’’ Private Attorney General Act collection of civil penalties on behalf of other current and former employees may not be precluded by contract.
Franco v. Athens Disposal Co., Inc . (2009) 171 Cal. App. 4th 1277, 1300-1303.

Moreover, the Court further finds that the agreement is both procedurally and substantively unconscionable and therefore unenforceable.

A standardized contract prepared by defendant and executed by plaintiff when she was a minor, with no opportunity to negotiate, is procedurally unconscionable.

The contract is substantively unconscionable, as it unjustifiably one sided. PacPizza demands that plaintiff arbitrate her individual claims, but not her class action and representative claims. Plaintiff would not receive all the benefits sought in her complaint through arbitration. The result would be unconscionable.

Sanctions requested by opposing party plaintiff under C.C.P., sec. 128.7 are denied.

No compliance with the “safe harbor” provisions of C.C.P., sec. 128.7(c) (1) has been shown.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.