Rodriguez v. Robert Half International CA4/1

Filed 11/20/15 Rodriguez v. Robert Half International CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LEONOR RODRIGUEZ, D067147
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2014-00006602-
CU-OE-CTL)
ROBERT HALF INTERNATIONAL, INC.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Appeal dismissed.
Patterson Law Group, James R. Patterson; AMartin Law and Alisa A. Martin, for
Plaintiff and Appellant.
O'Melveny & Myers, Adam P. KohSweeney and Susannah K. Howard, for
Defendant and Respondent.
INTRODUCTION
Leonor Rodriguez appeals an order compelling her to arbitrate four of the five
causes of action in her operative first amended complaint (complaint) against Robert Half
International, Inc. (Robert Half) for wage and hour violations. She contends the trial
court erred in compelling arbitration of these claims because the parties' arbitration
agreement was unenforceable under its own terms and because the agreement was
procedurally and substantively unconscionable. We conclude the order compelling
arbitration is not appealable and dismiss the appeal.
BACKGROUND
Rodriguez filed a putative class action against Robert Half alleging claims for
failure to pay wages, failure to provide proper wage statements, failure to pay final
wages, unfair business practices, and civil penalties under the Labor Code Private
Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). According to her
complaint, Robert Half hired her to work on a temporary, temporary-to-hire, and full-
time basis. After hiring her, Robert Half required her to interview and be fingerprinted
for a temporary position at a bank. Robert Half did not pay her for the time she spent in
these activities and has a practice of not paying employees for time spent in these
activities. Consequently, she alleges the company violated Labor Code section 226 by
failing to provide her and the putative class members with a proper wage statement and
Labor Code section 203 by failing to pay her and the putative class members all final
wages owed.
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Robert Half moved to compel arbitration of all but the PAGA claim. It decided to
not move to compel arbitration of the PAGA claim based on the California Supreme
Court's decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th
348 (Iskanian), which held "an arbitration agreement requiring an employee as a
condition of employment to give up the right to bring representative PAGA actions in any
forum is contrary to public policy." (Id. at p. 360.)
According to Robert Half's motion, when Rodriguez applied for employment with
Robert Half, Robert Half provided her with four documents: (1) notice regarding
arbitration agreement (notice); (2) mutual agreement to arbitrate claims (agreement); (3)
arbitration agreement acknowledgment form (acknowledgment form); and (4) arbitration
agreement opt-out form (opt-out form) (collectively, arbitration documents). The
agreement is a two-page document with six sections. Of relevance here, the agreement
provides:
"Claims Covered by the Agreement
"[Robert Half] and I mutually agree to resolve by arbitration, and
only by individual arbitration, all claims, whether or not arising out
of my employment (or its termination), that [Robert Half] may have
against me or that I may have against [Robert Half] and any other
related or affiliated entity or person, including but not limited to
parent, subsidiary and affiliated companies and employees or agents
of any of them. I agree that no court or arbitrator shall determine
any of my rights or claims on a class, collective or representative
basis under any federal, state or local law. I understand, however,
that I retain the right to bring claims in arbitration for myself as an
individual.
"Except as provided in the section titled 'Claims Not Covered by
the Agreement,' all claims that, in the absence of this Agreement,
could have been brought in court are subject to arbitration, whether
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the claims derive from common law, statute, regulation, or
otherwise, including but not limited to tort claims, contract claims,
claims for wages, and claims for discrimination, retaliation and/or
harassment. . . .
"[¶] . . . [¶]
"Claims Not Covered by the Agreement
"The following claims are not covered by this Agreement: claims
that as a matter of law cannot be subject to arbitration . . . .
"[¶] . . . [¶]
"Construction and Severability
"If any provision of the section entitled 'Claims Covered by the
Agreement' is determined to be void or unenforceable, then this
Agreement shall be of no force and effect, because the parties
intended to create an agreement to arbitrate individual disputes
only."
The notice directed Rodriguez to carefully review the other arbitration documents
and informed her she must complete the acknowledgment form confirming she received
the arbitration documents. The notice also informed her that entering into the agreement
was voluntary and she would be deemed to have assented to the agreement if she did not
submit the opt-out form within 30 days. The notice further informed her how to opt out
of the agreement and where within the company to direct queries about the agreement or
the opt-out form. Finally, the notice informed her she could discuss the decision whether
to accept the agreement or submit the opt-out form with private legal counsel if she
chose. The acknowledgment and opt-out forms contained the same information.
Rodriguez signed the acknowledgment form and never submitted an opt-out form.
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Rodriguez opposed the motion to compel arbitration, arguing the agreement was
ineffective under the agreement's construction and severability section because the
Iskanian decision rendered the representative claim waiver provision in the "Claims
Covered by the Agreement" section unenforceable as to PAGA claims. She also argued
the agreement was procedurally and substantively unconscionable in multiple respects.
The trial court disagreed with both of these points and granted the motion to compel.
DISCUSSION
As a threshold matter, we must address whether the trial court's order is
appealable. Under the one final judgment rule, an order compelling arbitration is
generally not immediately appealable. Such an order is normally subject to review only
on appeal from the final judgment. (Serafin v. Balco Properties Ltd., LLC (2015) 235
Cal.App.4th 165, 172, fn. 3; Nelson v. Legacy Partners Residential, Inc. (2012) 207
Cal.App.4th 1115, 1121-1122 (Nelson).) The death knell doctrine provides a limited
exception to the general rule. The death knell doctrine applies to make an interlocutory
order appealable when the " 'order has the "death knell" effect of making further
proceedings in the action impractical.' " (Nelson, supra, at p. 1123.) In other words, it
applies " 'when it is unlikely the case will proceed as an individual action.' " (Ibid.)
" '[E]xceptions to the one final judgment rule should not be allowed unless clearly
mandated.' " (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757.) Application of the
death knell doctrine exception requires "an order that (1) amounts to a de facto final
judgment for absent plaintiffs, under circumstances where (2) the persistence of viable
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but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment
will ever be entered." (Id. at p. 759.)
In this case, the order compelling arbitration meets the first prong because it
amounts to a de facto final judgment as to the claims of the putative class members.
However, the order does not meet the second prong. "Generally speaking, the civil
penalties available under the PAGA are $100 'for each aggrieved employee per pay
period for the initial violation and [$200] for each aggrieved employee per pay period for
each subsequent violation.' (Lab. Code, § 2699, subd. (f)(2).) Seventy-five percent of
penalties 'recovered by aggrieved employees' must be distributed to the 'Labor and
Workforce Development Agency for enforcement of labor laws and education of
employers and employees about their rights,' with the remaining 25 percent to be
distributed to the 'aggrieved employees.' (Lab. Code, § 2699, subd. (i).) A prevailing
PAGA plaintiff may recover his or her attorney fees and costs as well. (Lab. Code,
§ 2699, subd. (g)(1).) Thus, where, as here, the purported violator has had many
employees with earnings over many pay periods, the recovery could be quite substantial."
(Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 310-311.) "Given
the potential for recovery of significant civil penalties if the PAGA claims are successful,
as well as attorney fees and costs, plaintiffs have ample financial incentive to pursue the
remaining representative claims under the PAGA and, thereafter, pursue their appeal
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from the [order compelling arbitration]."1 (Id. at p. 311.) Accordingly, we conclude the
death knell doctrine does not apply and the order compelling arbitration is not appealable.
Although the court has the discretion to treat the appeal as a petition for writ of
mandate, the Supreme Court has indicated the court should only exercise the power in
unusual circumstances. (Olson v. Cory (1983) 35 Cal.3d 390, 401.) This court recently
reiterated "that a request to treat an appeal from a nonappealable order as a writ petition
' "should only be granted under [the most] extraordinary circumstances." ' " (Katzenstein
v. Chabad of Poway (2015) 237 Cal.App.4th 759, 770, fn. 16 (Katzenstein); accord,
Munoz v. Chipotle Mexican Grill, Inc., supra, 238 Cal.App.4th at p. 312.) Rodriguez has
not shown such extraordinary circumstances in this case. "Moreover, because '[t]he
interests of clients, counsel, and the courts are best served by maintaining, to the extent
possible, bright-line rules which distinguish between appealable and nonappealable
orders,' we respect the '[s]trong policy reasons' that underlie the one final judgment rule."
(Katzenstein, supra, at p. 770.) We, therefore, decline to exercise our discretion to treat
Rodriguez's appeal as a petition for writ of mandate and dismiss the appeal.
DISPOSITION
The appeal is dismissed. The request to treat the appeal as a petition for writ of
mandate is denied. Respondent is awarded appeal costs.
1 Indeed, the record shows Rodriguez has continued to prosecute the PAGA claim
during the pendency of this appeal.
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MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
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