Guzman v. Front Porch Communities and Services CA2/3

Filed 5/5/23 Guzman v. Front Porch Communities and Services CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
CECILIA GUZMAN, B314877
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. 21STCV03740
FRONT PORCH COMMUNITIES
AND SERVICES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Maureen Duffy-Lewis, Judge. Reversed
with directions.
Offices of Timothy F. Ryan, Timothy F. Ryan; Gordan
Rees Scully Mansukhani and Shiao-wen Huang for Defendant
and Appellant.
Pairavi Law, Edwin Pairavi and Joshua M. Mohrsaz for
Plaintiff and Respondent.
_________________________
Front Porch Communities and Services dba Villa Gardens
(Front Porch) appeals from the trial court’s order denying its
petition to compel arbitration of Cecilia Guzman’s complaint
alleging causes of action relating to her former employment with
Front Porch. Front Porch contends the trial court improperly
construed the parties’ arbitration agreement as containing a
waiver of the right to bring claims under the California Labor
Code Private Attorneys General Act of 2004 (PAGA; Lab. Code,
§ 2698 et seq.), rendering it substantively unconscionable.
Alternatively, Front Porch argues any PAGA waiver did
not invalidate the otherwise enforceable agreement under
Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___[142 S.Ct. 1906] (Viking), decided after the court’s ruling.
We follow Viking and reverse.
FACTS AND PROCEDURAL BACKGROUND
Front Porch is a nonprofit public benefit corporation
that, among other things, owns and operates retirement homes
and health care facilities for aged persons. Villa Gardens is a
Front Porch retirement community that provides independent
living, assisted living, skilled nursing, memory care, and other
senior living services. In November 2014, Guzman began her
employment with Front Porch as a certified nursing assistant
at Villa Gardens.
During her orientation, Guzman signed an “employee
acknowledgement form and at-will/arbitration agreement,”
acknowledging her receipt of a copy of the Front Porch 2014
employee handbook and agreeing to arbitrate claims relating
to or arising from her employment. Guzman declared she did
not receive a copy of the handbook that day.
2
In 2017, Front Porch issued a revised employee handbook
to its employees that contained a revised agreement to arbitrate.
Guzman signed an “employee acknowledgement form/arbitration
agreement” on May 24, 2017. Guzman declared her supervisor
handed her only the signature page to the agreement and
did not discuss the arbitration agreement with her. She also
declared she had a copy of the 2017 handbook, however.
Guzman sued Front Porch1 in January 2021, alleging
several causes of action under the Fair Employment and Housing
Act (Gov. Code, § 12940 et seq.; FEHA) relating to sexual
harassment and disability discrimination, as well as a cause
of action for wrongful termination in violation of public policy.
Front Porch filed a motion to compel arbitration, in lieu
of filing an answer, in response to Guzman’s complaint. Front
Porch asked the court to compel arbitration under the terms
of the 2017 agreement, and alternatively, the 2014 agreement.
According to its terms, the 2017 arbitration agreement
“supersedes all previous agreements.”
The 2017 agreement provides “any and all claims or
controversies” between employer and employee “relating in any
manner to the employment or the termination of employment
of [e]mployee shall be resolved by final and binding arbitration.”
Claims arising under FEHA are specifically included among
the arbitrable claims.
1 Guzman also sued Front Porch Enterprises, Inc. and
Front Porch Communities Operating Group, LLC. Front Porch
presented evidence that those entities have no employees.
Guzman also named her supervisor as a defendant, by first
name only, but there is no indication she served the summons
and complaint on the supervisor.
3
Guzman opposed the motion to compel arbitration on
the ground the agreement was unenforceable. Guzman argued
the agreement included a PAGA waiver and, under Iskanian
v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348(Iskanian), overruled in part by Viking, supra, 142 S.Ct. 1906,
the waiver rendered the agreement unenforceable as a matter of
public policy. She also argued the agreement was unenforceable
due to unconscionability. Guzman argued the agreement was
a procedurally unconscionable contract of adhesion and several
provisions within the agreement rendered it substantively
unconscionable: it did not limit the employer’s right to recover
attorney fees and costs to frivolous or bad faith claims as
required under FEHA; Front Porch was a repeat player with
JAMS, the designated arbiter; and it did not provide for adequate
discovery.
Front Porch countered that Guzman had misinterpreted
the agreement’s provision, which stated the arbitrator had
no authority to decide a representative PAGA claim, and the
unenforceability of any waiver did not invalidate the entirety of
the agreement. With respect to unconscionability, Front Porch
argued the agreement and JAMS rules did not impose unfair fees
and costs, and limited prevailing party fees to the same extent
as in court based on applicable law; there was no evidence Front
Porch was a repeat player with JAMS, and the parties were to
choose the JAMS arbitrator by mutual agreement; there was
no limit on discovery; and the agreement was not procedurally
unconscionable.
The court heard Front Porch’s motion on August 13, 2021.
A reporter’s transcript is not part of the appellate record. The
court denied the motion, finding the agreement procedurally and
4
substantively unconscionable. According to the minute order,
the court found the agreement—“[g]iven the facts”—“appear[ed]
to be adhesive” and thus procedurally unconscionable. The
minute order then notes that, under Iskanian, agreements “that
preclude bringing or joining in a PAGA claim” are “unlawful and
contrary to public policy,” and thus substantively unconscionable.
Noting the agreement here appeared to include “a provision to
sever,” the court stated appellate courts have declined to sever
PAGA waivers. The minute order then states, “The PAGA waiver
remains part of the agreement and renders it substantively
unconscionable.” Front Porch appealed.2
DISCUSSION
1. Applicable law and standards of review
The 2017 agreement3 states it is to be “governed by the
Federal Arbitration Act [FAA] and, to the extent permitted
by such Act, the laws of the State of California.” Parties to an
arbitration agreement may “expressly designate” the FAA in
their agreement. (Cronus Investments, Inc. v. Concierge Services
(2005) 35 Cal.4th 376, 394.) Accordingly, our interpretation
of the agreement is governed by the FAA and California law,
to the extent it is not inconsistent with the FAA.
Both the FAA and the California Arbitration Act (Code
Civ. Proc., § 1280 et seq.) “strongly favor arbitration” (Prima
Donna Development Corp. v. Wells Fargo Bank, N.A. (2019)
2 An order denying a petition to compel arbitration is
immediately appealable. (Code Civ. Proc., § 1294, subd. (a).)
3 The August 13, 2021 minute order refers specifically to
provisions in the 2017 agreement. As the 2017 agreement also
superseded the 2014 agreement, we consider only the 2017
agreement.
5
42 Cal.App.5th 22, 35), and “establish[ ] ‘a presumption in favor
of arbitrability’ ” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125).
The fundamental policy behind both acts is to “ ‘ensur[e] that
private arbitration agreements are enforced according to their
terms.’ ” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333,
344; Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 836,
fn. 10.) “Arbitration is therefore a matter of contract.” (Avery v.
Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50,
59 (Avery).)
Arbitration agreements thus are enforceable unless
revocable under state law on grounds that exist for any contract,
such as fraud, duress, and unconscionability. (9 U.S.C. § 2;
Code Civ. Proc., § 1281; Viking, supra, 142 S.Ct. at p. 1917;
Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
24 Cal.4th 83, 97–98, 114 (Armendariz).) A party seeking to
compel arbitration bears the burden of proving the existence of a
valid arbitration agreement, and the party opposing the petition
bears the burden of establishing a defense to the agreement’s
enforcement. (Engalla v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 972.)
We apply general principles of contract law to determine
whether a valid agreement to arbitrate exists. (Pinnacle Museum
Tower Assn. v. Pinnacle Market Development (US), LLC (2012)
55 Cal.4th 223, 236.) “General contract law principles include
that ‘[t]he basic goal of contract interpretation is to give
effect to the parties’ mutual intent at the time of contracting.
[Citations.] . . . “The words of a contract are to be understood
in their ordinary and popular sense.” ’ [Citation.] Furthermore,
‘ “[t]he whole of a contract is to be taken together, so as to give
effect to every part, if reasonably practicable, each clause helping
6
to interpret the other.” (Civ. Code, § 1641.)’ ” (Franco v.
Greystone Ridge Condominium (2019) 39 Cal.App.5th 221, 227.)
“[A]mbiguities about the scope of an arbitration agreement must
be resolved in favor of arbitration.” (Lamps Plus, Inc. v. Varela
(2019) 587 U.S. ___ [139 S.Ct. 1407, 1418].)
“ ‘There is no uniform standard of review for evaluating
an order denying a motion to compel arbitration. [Citation.]
If the court’s order is based on a decision of fact, then we adopt
a substantial evidence standard. [Citations.] Alternatively,
if the court’s denial rests solely on a decision of law, then a
de novo standard of review is employed. [Citations.]’ [Citation.]
Interpreting a written document to determine whether it is an
enforceable arbitration agreement is a question of law subject
to de novo review when the parties do not offer conflicting
extrinsic evidence regarding the document’s meaning.” (Avery,
supra, 218 Cal.App.4th at p. 60.)
2. The record is adequate for our de novo review
Guzman contends Front Porch’s failure to include a
reporter’s transcript in the appellate record, and to ask the
trial court for a statement of decision, prevents a proper review
of the court’s ruling because its minute order “does not fully
elucidate its reasoning for denying the Motion to Compel.”
She argues Front Porch thus has forfeited any objection to the
trial court’s findings, and we should apply the doctrine of implied
findings to presume the trial court “made all necessary findings
in denying Appellant’s Motion to Compel Arbitration.”
The trial court resolved contested facts—competing
declarations between Front Porch and Guzman as to whether
Front Porch personnel reviewed the arbitration agreements with
Guzman—in finding the arbitration agreement was a contract
7
of adhesion and thus procedurally unconscionable. Front Porch
does not challenge that factual finding on appeal, however.
Rather, Front Porch contests only the trial court’s legal finding
that the agreement was substantively unconscionable under
Iskanian because it contained an unlawful PAGA waiver.4
The trial court did not resolve any factual issues in interpreting
the agreement as substantively unconscionable based on its
inclusion of a PAGA waiver. Nor did the parties introduce
extrinsic evidence to aid the court in interpreting the agreement’s
terms.
Accordingly, we review de novo the meaning and legal
effect of the agreement’s purported PAGA waiver. (See, e.g.,
Eminence Healthcare, Inc. v. Centuri Health Ventures, LLC
(2022) 74 Cal.App.5th 869, 875 [“As no extrinsic evidence
relating to the arbitration agreement’s meaning was submitted,
we interpret the arbitration provision de novo.”]; Avery, supra,
218 Cal.App.4th at p. 60.) We thus need not refer to a reporter’s
transcript or statement of decision to evaluate the challenged
ruling properly. (E.g., Chodos v. Cole (2012) 210 Cal.App.4th
692, 699–700 [reporter’s transcript unnecessary where parties
did not rely on oral argument before the trial court and appellate
court was to decide “a purely legal issue”]; cf. Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58
[“The doctrine of implied findings requires the appellate court
to infer the trial court made all factual findings necessary
to support the judgment.” (Italics added.)].)
4 The Iskanian court actually held a PAGA waiver was
“contrary to public policy,” rather than a matter of substantive
unconscionability. (Iskanian, supra, 59 Cal.4th at p. 384.)
8
3. PAGA, Iskanian, and Viking
Under PAGA, an “aggrieved employee” may file a civil
action against an employer for “a civil penalty” for violations of
the Labor Code “on behalf of himself or herself and other current
or former employees.” (Lab. Code, §§ 2698, 2699, subd. (a);
Navas v. Fresh Venture Foods, LLC (2022) 85 Cal.App.5th 626,
634 (Navas).) All PAGA actions—whether pursued for violations
on behalf of the plaintiff alone or on behalf of others—are
“representative” actions in that the employee acts on behalf
of the State to redress Labor Code violations. (Arias v. Superior
Court (2009) 46 Cal.4th 969, 986; see also Viking, supra, 142
S.Ct. at p. 1914 [“California precedent holds that a PAGA suit
is a ‘ “representative action” ’ in which the employee plaintiff
sues as an ‘ “agent or proxy” ’ of the State”].)
A PAGA action also is described as “ ‘representative’ . . .
where an employee seeks damages because of the employer’s
PAGA violations committed against a group of employees,” versus
an “individual PAGA action[ ] where the employee seeks damages
for violations committed against the individual employee.”
(Navas, supra, 85 Cal.App.5th at p. 634; see also Viking, supra,
142 S.Ct. at p. 1916.)
Under Iskanian, an employment agreement that “compels
the waiver of representative claims under . . . PAGA . . . is
contrary to public policy and unenforceable as a matter of state
law.” (Iskanian, supra, 59 Cal.4th at p. 384; see Viking, supra,
142 S.Ct. at p. 1916 [explaining that by “representative claims,”
the court in Iskanian meant “representative standing to bring
PAGA claims”].) When the trial court ruled, Iskanian also
prohibited an arbitration agreement from dividing a PAGA
action into arbitrable individual claims and non-arbitrable
9
representative (i.e., nonindividual) claims.5 (Iskanian, at
pp. 383–384; Viking, at pp. 1916–1917.) After the trial court
ruled, however, the United States Supreme Court overruled
Iskanian as preempted by the FAA to the extent “it precludes
division of PAGA actions into individual and non-individual
claims through an agreement to arbitrate.” (Viking, at p. 1924;
id. at p. 1923 [explaining Iskanian prohibits “parties from
contracting around” an employee’s ability to join Labor Code
violation “claims that could have been raised by the State in
an enforcement proceeding,” although not personally suffered
by the employee, “because it invalidates agreements to arbitrate
only ‘individual PAGA claims for Labor Code violations that
an employee suffered’ ”].)
In Viking, the arbitration agreement at issue “purported
to waive ‘representative’ PAGA claims.” (Viking, supra, 142 S.Ct.
at p. 1924.) The Court explained that provision, under Iskanian,
“was invalid if construed as a wholesale waiver of PAGA claims.”
(Ibid.) The Court made clear this aspect of Iskanian was not
preempted by the FAA. (Id. at pp. 1924–1925.) In the agreement
before the Court, however, a severability clause provided that
“if the waiver provision is invalid in some respect, any ‘portion’
of the waiver that remains valid must still be ‘enforced in
arbitration.’ ” (Id. at pp. 1916, 1925.) Accordingly, the Supreme
Court held the employer “was entitled to enforce the agreement
insofar as it mandated arbitration of [the employee’s] individual
PAGA claim.” (Id. at p. 1925.) In other words, while “the
Iskanian rule requiring mandatory joinder of individual and
5 We will use the term “nonindividual” to refer to
representative PAGA actions brought to redress Labor Code
violations committed against other current or former employees.
10
representative PAGA claims is preempted[,] [t]he employer and
employee . . . may agree to arbitrate an individual PAGA claim.”
(Navas, supra, 85 Cal.App.5th at p. 635.)
It is against this backdrop that we consider whether the
purported PAGA waiver here invalidated the 2017 arbitration
agreement.
4. The 2017 arbitration agreement
It is undisputed that Guzman’s claims against Front Porch
—seven FEHA claims and one tort claim—fall within the scope
of the 2017 arbitration agreement. Guzman’s complaint also does
not assert any causes of action—individual or nonindividual—
under PAGA. The parties dispute whether the agreement
includes a “wholesale” PAGA waiver and, if so, whether the
waiver invalidates the agreement. The relevant provisions of the
agreement follow.
Paragraph 3(c), which falls under the heading “Arbitrator
Selection and Authority,” provides,
“The arbitrator shall not have the authority
to adjudicate class, collective, or representative
claims (including without limitation claims
under [PAGA] on behalf of any person other
than Employee individually), to award any
class, collective, or other representative relief
on behalf of any person other than Employee,
or, without all parties’ consent, to consolidate
the claims of two or more individuals, or
otherwise preside over any form of a class,
collective, or other representative proceeding.
If this paragraph 3(c) is found by a court of
competent jurisdiction to be unenforceable,
11
then the entirety of the Agreement shall be null
and void.”
Paragraph 7, entitled “Waiver of Class, Representative, and
Collective Claims,” states,
“To the fullest extent permitted by law,
Employee and Employer each waives any right
either may have to bring any class, collective,
or representative action against the other
party, whether in arbitration, in court, or
otherwise, or to participate as a member
of any class or collective action against the
other party (‘Waived Claims’). If a court or
an arbitrator determines in any proceeding
between the Parties that any such claims
cannot be waived, then the non-waivable
claims shall be adjudicated in court or such
other forum as provided by law and not in
arbitration.”
Finally, paragraph 10 of the agreement is a severability
clause: “Except as provided above in paragraph 3(c), above,
[sic] regarding the arbitrator’s lack of authority to certify or
adjudicate class, collective, or other representative claims
or to award class, collective, or other representative relief,
if any provision of this Agreement shall be held to be invalid,
unenforceable, or void, by a court of competent jurisdiction
or an arbitrator such provision shall be stricken from the
Agreement, and the remainder of the Agreement shall remain
in full force and effect.”
Front Porch argues these provisions do not include an
impermissible “wholesale” waiver of all PAGA claims. It first
12
contends paragraph 3(c) is not a waiver of PAGA claims,
but a statement that the arbitrator has no authority to hear
nonindividual PAGA claims, while preserving the arbitrator’s
authority to adjudicate individual PAGA claims. Front Porch
then argues that, because paragraph 7’s waiver of “class,
representative and collective claims” is silent as to PAGA, while
paragraph 3(c) “specifically references PAGA collective claims,”
reading the two clauses together indicates the parties intended to
prevent arbitration of nonindividual PAGA claims, “not to waive
them entirely.” Alternatively, Front Porch argues the agreement
is not invalid because the waiver in paragraph 7 provides that if
the court or arbitrator finds a nonindividual PAGA claim cannot
be waived, then that nonwaivable claim will be adjudicated in
court, while an individual PAGA claim is expressly arbitrable
under paragraph 3(c).
Guzman, on the other hand, contends both paragraphs
contain a PAGA waiver, noting a “ ‘representative action’ ”
includes a PAGA action. She argues “there can be no serious
question that the right to arbitrate PAGA actions has been lost
under both paragraphs 3(c) and 7” of the agreement. Guzman
argues the agreement is unenforceable under Viking because
paragraph 3(c) precludes arbitration of representative PAGA
actions and cannot be severed from the agreement without
rendering the agreement invalid. Guzman notes the Supreme
Court in Viking agreed the PAGA waiver in that arbitration
agreement would have rendered it unenforceable under
California law “but for the severability clause.” In contrast
to the PAGA waiver in Viking, she argues, the PAGA waiver
here is exempt from the agreement’s severability clause,
rendering the agreement unenforceable.
13
We disagree with Guzman that paragraph 3(c) constitutes
a waiver of representative PAGA claims and with Front Porch
that paragraph 7 does not constitute a waiver of PAGA claims.
First, unlike in paragraph 7, nowhere in paragraph 3(c) does
the term “waiver” appear. Nor does the paragraph refer to the
parties’ giving up their rights to pursue class or representative
claims against each other, as paragraph 7 does. Rather, the
plain language of paragraph 3(c) makes clear the arbitrator
has no authority to adjudicate class, collective, or representative
claims, including “claims under [PAGA] on behalf of any person
other than Employee individually.” (Italics added.) In other
words, the agreement expresses the parties’ lack of consent
to arbitrate representative claims, including representative
PAGA claims brought on behalf of others. By excluding from the
arbitrator’s lack of authority a PAGA claim brought on behalf of
the employee individually, however, the provision unmistakably
expresses the parties’ intent to arbitrate only individual PAGA
claims. Thus, the agreement here does not deprive Guzman
of her right to pursue an individual PAGA claim. (Cf. Navas,
supra, 85 Cal.App.5th at p. 635 [under Iskanian, employee with
an individual PAGA claim could not be deprived of the option
to pursue it altogether through a predispute employment
agreement].)
Paragraph 7, by contrast, expressly requires the “waive[r]”
of the “right . . . to bring any class, collective, or representative
action . . . whether in arbitration, in court, or otherwise.” (Italics
added.) Given this plain language, we cannot agree with Front
Porch’s assessment that paragraph 7—which does not mention
PAGA—when read together with paragraph 3—which does
mention PAGA—evidences the parties’ intent to forgo only
14
arbitration of nonindividual PAGA claims rather than to waive
them entirely. In Iskanian, our high court held an agreement
that required the waiver of “ ‘representative actions’ ”
undisputedly “cover[ed] representative actions brought under
[PAGA].” (Iskanian, supra, 59 Cal.4th at p. 378.) Paragraph 7
expressly precludes the right to bring any representative action
in arbitration and court. We thus read paragraph 3’s specific
reference to PAGA as clarifying the parties’ intent to arbitrate
individual PAGA claims, and lack of consent to arbitrate
nonindividual PAGA claims, among others. Accordingly,
paragraph 7 acts as an unenforceable waiver of PAGA claims.
Under Viking, however, that waiver does not render
the agreement here unenforceable. As in Viking, and noted
by the trial court, paragraph 7 contains its own severability
provision. That provision is almost identical to the one at issue
in Viking, by providing that if a court or arbitrator finds the
waiver in paragraph 7 is unenforceable as to any claim, then
that “non-waivable claim[ ] shall be adjudicated in court . . .
and not in arbitration.” (See Viking, supra, 142 S.Ct. at p. 1916
[stating waiver “contained a severability clause specifying
that if the waiver was found invalid, any class, collective,
representative, or PAGA action would presumptively be litigated
in court”].) Accordingly, to the extent the agreement compels
the “wholesale waiver” of representative PAGA claims,
the waiver does not preclude enforcement of the arbitration
agreement as paragraph 7 provides for any nonwaivable class,
collective, or representative claim to be heard in court.
The clause in Viking added that, “if any ‘portion’ of the
waiver remained valid, it would be ‘enforced in arbitration.’ ”
(Viking, supra, 142 S.Ct. at pp. 1916, 1925.) Similarly, here,
15
the agreement, through paragraph 3(c), specifically gives the
arbitrator authority to adjudicate an individual PAGA claim.
The severability clause of paragraph 10 also allows for the court
or arbitrator to strike any provision of the agreement found
unenforceable, including the waiver of representative PAGA
actions under paragraph 7, and for the remainder of the
arbitration agreement to “remain in full force and effect.”
Moreover, to the extent paragraph 7 can be read to waive
only nonindividual representative PAGA claims—meaning PAGA
claims brought on behalf of other current or former employees—
or, if the waiver were to be stricken altogether, the agreement
remains enforceable because any individual PAGA claim Guzman
might have still can be adjudicated through arbitration. (Viking,
supra, 142 S.Ct. at p. 1925 [severability clause entitled employer
“to compel arbitration of [employee’s] individual claim”].)
In any event, Guzman’s complaint asserts no PAGA claims,
so there is no representative claim of any type at issue.
Finally, because we do not construe paragraph 3(c) as a
waiver of representative PAGA claims, but an indication of the
parties’ lack of consent to arbitrate nonindividual PAGA claims,
the exclusion of this paragraph from the severability clause in
paragraph 10 does not prohibit the severance of the agreement’s
waiver of representative PAGA claims, contrary to Guzman’s
contention. Nor does our finding that paragraph 7’s waiver of
PAGA claims is unenforceable require us also to find paragraph
3(c) unenforceable, which would render the entire agreement
invalid. Rather, paragraph 3(c) ensures that, if a court were
to find unenforceable the restriction of the arbitrator’s authority
to adjudicate class, collective, and representative claims—
including nonindividual PAGA claims—the parties would not
16
be forced to arbitrate such claims, contrary to their agreement.
(See, e.g., Viking, supra, 142 S.Ct. at p. 1918 [“ ‘a party may not
be compelled under the FAA to submit to class arbitration unless
there is a contractual basis for concluding that the party agreed
to do so’ ”].)
Following the Supreme Court’s decision in Viking—and
given Guzman has not alleged any type of PAGA claim against
Front Porch, and all her claims fall within the scope of the
arbitration agreement—we conclude the trial court erred in
denying Front Porch’s motion to compel arbitration based on the
agreement’s inclusion of a PAGA waiver. Moreover, as Guzman
does not contend on appeal that the court found the agreement
was otherwise substantively unconscionable, the court’s finding
that the agreement was a procedurally unconscionable contract of
adhesion is an insufficient basis to find the arbitration agreement
unenforceable. (See, e.g., Serafin v. Balco Properties Ltd., LLC
(2015) 235 Cal.App.4th 165, 179 [fact that arbitration agreement
is a contract of adhesion “does not render it automatically
unenforceable as unconscionable”]; see also Armendariz,
supra, 24 Cal.4th at p. 114 [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’ ”].)
17
DISPOSITION
The order denying appellant Front Porch’s motion to
compel arbitration is reversed. The trial court is directed to enter
a new order requiring respondent Guzman to arbitrate her claims
under the 2017 arbitration agreement. In the interest of justice,
the parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
NGUYEN (KIM), J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18