Defendant Price-Sims, Inc. brings this Motion to Compel Individual Arbitration and Stay Judicial Proceedings.  The instant lawsuit is an action brought by Plaintiff Richard Vogel, individually, and on behalf of all others similarly situated for state wage and hour claims (and all derivative violations and penalties) which related to Plaintiff’s employment with Defendant.  The Plaintiff’s First Amended Complaint seeks to bring the claims both as a class action and a representative action under the Private Attorney General Act (“PAGA”).

In its moving papers, Defendants argue that Plaintiff expressly agreed to resolve all of his employment-related disputes with Defendant by signing a “Binding Arbitration Agreement” (“Agreement”) and “Employee Acknowledgment Agreement” on June 7, 2012 which requires Plaintiff to arbitrate his individual claims.  Defendants further argue that the Agreement referenced-above specifically states that since any dispute must be arbitrated on an individual basis, Plaintiff may not pursue any class-wide or “joint” or “collective” claims and has specifically waived his right to do so.  Furthermore, Defendants maintain that any representative claim brought under PAGA, although not waived under Ishkanian v. CLS Transportation Los Angeles (2014) 59 Cal.4^th 348, should be stayed pending arbitration of the individual claims.

In his Opposition papers, Plaintiff acknowledges that the subject Agreement precludes him from pursuing his claims on a class-wide basis and further acknowledges that his substantive claims for wage and hour violations under the Labor Code and the unfair competition claim pursuant to California Business and Professions Code Section 17200 must be arbitrated.  The focus of Plaintiff’s Opposition is directed towards the PAGA claim.  Specifically, Plaintiff contends that the PAGA claim should be arbitrated because it falls within the scope of the Agreement requiring arbitration of “any claim, dispute and/or controversy……which would otherwise require or allow resort to any court…”   Plaintiff maintains that since there is no express prohibition for arbitration of his PAGA claim and in light of the fact that the Agreement broadly applies to “all disputes which may arise out of the employment context,”  the PAGA claim should be ordered to arbitration as well.  Finally, Plaintiff argues that it is ultimately up to the Arbitrator to determine the scope of the Arbitration and it is up to the Arbitrator to decide whether his PAGA claim is arbitrable.

In Reply,   Defendants assert that they cannot be compelled to arbitrate Plaintiff’s PAGA claim because they did not consent to arbitrate a PAGA claim and the Agreement precludes joint or collective actions brought on behalf of others.  Since a PAGA claim is brought on behalf of an aggrieved employee and other current and former employees, it is disallowed by the Agreement signed by Plaintiff.  Finally, Defendant maintains that the real issue here is a legal one (whether a party can be compelled to arbitrate claims without consenting to do so) and therefore the Court should decide this issue.

Analysis:

Plaintiff does not dispute the fact that he signed and acknowledged the Binding Arbitration Agreement on June 7, 2012.  Plaintiff has not argued that the Agreement is either procedurally or substantively unconscionable and therefore unenforceable.  As noted above, Plaintiff’s primary argument is that since class actions and PAGA claims are legally distinguishable and since there is no specific prohibition in the Agreement precluding PAGA claims from arbitration, the Arbitration Agreement should be read broadly to include PAGA claims.  This Court disagrees.  Plaintiff’s First Amended Complaint (“FAC”) is pled as a representative action on behalf of Plaintiff and “all other individuals who are or previously were employed by DEFENDANT in California as Service Technicians classified as non-exempt employees….” (FAC Paragraph 78) The Agreement clearly states that the arbitrator will hear only 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 of employees in one proceeding, to the maximum extent permitted by law.”  (Emphasis added).  Since a PAGA claim is by definition a representative action brought on behalf of current or former employees, it is not permitted in the Agreement and Defendants’ position that they did not consent to arbitrating a representative action is consistent with the language of the Agreement and therefore persuasive to this Court.  Clearly, the Agreement signed by the Plaintiff does not cover PAGA claims and there is no legal basis for this Court to compel that claim to arbitration.

For the reasons set forth above, Defendants’ Motion to Compel Individual Arbitration and Stay Judicial Proceedings is GRANTED.