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1 D.LAW, INC.
Emil Davtyan (SBN 299363)
2 emil@d.law
David Yeremian (SBN 226337)
3 d.yeremian@d.law
David Keledjian (SBN 309135)
4 d.keledjian@d.law
5 David Arakelyan (SBN 337076)
d.arakelyan@d.law
6 880 E. Broadway
Glendale, CA 91205
7 Telephone: (818) 962-6465
Facsimile: (818) 962-6469
8
9 Attorneys for Plaintiff NATASHA DENISE TAYLOR
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SAN MATEO
12
13 NATASHA DENISE TAYLOR, on behalf of Case No. 23-CIV-05673
herself and aggrieved employees,
14 [Assigned for all purposes to the Hon. Jeffrey
Plaintiff, R. Finnigan, Dept. 24]
15
PLAINTIFF’S REQUEST FOR JUDICIAL
16 v. NOTICE IN OPPOSITION TO MOTION
TO COMPEL ARBITRATION OF
17 REALTY INCOME CORPORATION, a INDIVIDUAL PAGA CLAIM AND STAY
Maryland corporation; ROBERT HALF INC., PENDING ARBITRATION
18 a Delaware corporation, and DOES 1 through
Date: April 26, 2024
19 50, inclusive, Time: 9:00AM
Location: Dept. 24, Courtroom 2F
20 Defendants.
Complaint Filed: November 29, 2023
21 Trial Date: None
22
23
24
25
26
27
28
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
1 TO THE HONORABLE COURT, DEFENDANTS, AND THEIR ATTORNEYS OF
2 RECORD:
3 PLEASE TAKE NOTICE that Plaintiff NATASHA DENISE TAYLOR (“Plaintiff”) will,
4 and hereby does, respectfully request that the Court take judicial notice of the following items in
5 support of Plaintiff’s Opposition to Defendant’s Motion to Compel Arbitration of Individual PAGA
6 Claim and Stay Pending Arbitration.
7 ITEM 1: Gentry v. Robert Half International, Inc. (Cal. Ct. App., Oct. 3, 2023, No.
8 A166610) 2023 WL 6430122, at *1, reh'g denied (Oct. 19, 2023). This decision is unpublished and
9 uncitable.
10 ITEM 2: Dorff v. Robert Half International Inc. (Cal. Ct. App., Oct. 29, 2019) 2019 IER
11 Cases 414059. This decision is unpublished and uncitable.
12 ITEM 3: Jennings v. Knighted Ventures, LLC, 21CV391681, Santa Clara County Superior
13 Court, dated August 18, 2022.
14 ITEM 4: Raymond v. CompuCom Systems, Inc., 2:21-cv-02327-KJM-KJN, U.S. District
15 Court for the Eastern District of California, dated August 23, 2023.
16 ITEM 5: Cano v. Infinite Velocity Automotive, Inc., 21STCV18259, Alameda County
17 Superior Court, dated October 4, 2023.
18
19
20 Dated: April 15, 2024 D.LAW
21
/s/ David Keledjian
22
David Yeremian
23 David Keledjian
David Arakelyan
24 Attorneys for Plaintiff
NATASHA DENISE TAYLOR
25
26
27
28
2
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
ITEM 1
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
her claims as an individual and putative class representative
seeking damages, and also in a representative capacity under
KeyCite Red Flag - Severe Negative Treatment the Private Attorneys General Act of 2004 (PAGA; Lab.
Unpublished/noncitable October 3, 2023
Code, § 2698 et seq.) 1 seeking civil penalties for Labor Code
2023 WL 6430122 violations suffered by her or by other employees. Robert Half
Not Officially Published moved to compel arbitration of her individual claims under
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) the Labor Code and to stay the remaining claims, including
Only the Westlaw citation is currently available. her PAGA claim. The trial court denied the petition on the
ground that the arbitration agreement contained an invalid
California Rules of Court, rule 8.1115, restricts waiver of Gentry's right to bring a PAGA claim in any forum,
citation of unpublished opinions in California courts. which under a severability clause that voided the arbitration
agreement if any provision was determined to be invalid,
Court of Appeal, First District, Division 4, California. rendered the entire agreement to arbitrate unenforceable. In
2018, this court affirmed the trial court's order. (Gentry v.
Jessica GENTRY, Plaintiff and Respondent,
Robert Half Int'l, Inc. (A147553, Aug. 14, 2018), 2018 WL
v.
3853775, 2018 Cal.App.Unpub. LEXIS 5506 [nonpub. opn.]
ROBERT HALF INTERNATIONAL,
(“Gentry I”).)
INC., Defendant and Appellant.
This appeal is from the denial of Robert Half's second
A166610
petition to compel arbitration, which it filed in October 2022.
|
Robert Half argued that the parties’ arbitration agreement
Filed October 3, 2023
must be reinterpreted in light of the United States Supreme
(City & County of San Francisco Super. Ct. No. Court decision in Viking River Cruises, Inc. v. Moriana (2022)
CGC-15-544878) 596 U.S. ––––, 142 S. Ct. 1906, 213 L.Ed.2d 179 (Viking
River). The trial court denied the petition, finding that Viking
Attorneys and Law Firms River neither altered the court's prior interpretation of the
agreement nor affected the operation of the severability clause
James R. Patterson, Patterson Law Group, APC, 402 West
in this case. Robert Half timely appealed. 2 After briefing
Broadway, Suite 1950, San Diego, CA 92101, Jennifer
was complete, Gentry filed a request for sanctions. We find
Michele French, Patterson Law Group APC, 402 West
no error and affirm the order denying the petition to compel
Broadway, Suite 1950, San Diego, CA 92101-3456, Alisa A.
arbitration. We also deny Gentry's motion for sanctions.
Martin, AMartin Law, 600 West Broadway, Suite 1700, San
Diego, CA 92101, for Plaintiff and Respondent.
Roland M. Juarez, Hunton Andrews Kurth LLP, 550 South Legal Background
Hope Street, Suite 2000, Los Angeles, CA 90071, Adam P.
KohSweeney, O'Melveny & Myers LLP, Two Embarcadero *2 “PAGA authorizes ‘an aggrieved employee,’ acting
Center - 28th Floor, San Francisco, CA 94111, Elbert as a proxy or agent of the state Labor and Workforce
Lin, Hunton Andrews Kurth LLP, 951 East Byrd Street, Development Agency (LWDA), to bring a civil action against
Richmond, VA 23219, for Defendant and Appellant. an employer ‘on behalf of himself or herself and other
current or former employees’ to recover civil penalties for
Opinion Labor Code violations they have sustained.” (Adolph v. Uber
Techs., Inc. (2023) 14 Cal.5th 1104, 1113, 310 Cal.Rptr.3d
HIRAMOTO, J. * 668, 532 P.3d 682, quoting § 2699, subd. (a) (Adolph).) “A
PAGA claim for civil penalties ‘ “ ‘is fundamentally a law
*1 In 2015, plaintiff Jessica Gentry filed the present action
enforcement action.’ ” ’ [Citation.] ‘The “government entity
against her former employer, Robert Half International,
on whose behalf the plaintiff files suit is ....the real party
Inc. (Robert Half), alleging several causes of action for
in interest.” ’ ” (Id. at p. 1117, 310 Cal.Rptr.3d 668, 532
Labor Code violations and an unfair competition law (UCL)
P.3d 682; quoting Kim v. Reins International California,
claim (Bus. & Prof. Code, § 17200 et seq.). Gentry brought
Inc. (2020) 9 Cal.5th 73, 81, 259 Cal.Rptr.3d 769, 459
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 1
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
P.3d 1123.) “An employee who brings a PAGA action to from the non-individual claim and resolved by arbitration.
recover civil penalties acts “ ‘as the proxy or agent’ ” of the (142 S.Ct. at p. 1925.)
state. [Citations.] ‘PAGA is designed primarily to benefit the
general public, not the party bringing the action.’ ” (Id. at p. In Adolph, supra, 14 Cal.5th 1104, the court confirmed that
1116, 310 Cal.Rptr.3d 668, 532 P.3d 682.) the Supreme Court in Viking River left “undisturbed” the
holding in Iskanian that a “predispute categorical waiver
In Iskanian v. CLS Transportation Los Angeles, LLC (2014) of the right to bring a PAGA action is unenforceable.” (14
59 Cal.4th 348, 360, 173 Cal.Rptr.3d 289, 327 P.3d 129 Cal.5th at p. 1117.) In addition, the Supreme Court left
(Iskanian), the California Supreme Court held that “a “intact” the rule that “[w]here ... an employment agreement
predispute categorical waiver of the right to bring a PAGA compels the waiver of representative claims under the PAGA,
action is unenforceable.” (Adolph, supra, 14 Cal.5th at p. it is contrary to public policy and unenforceable as a matter of
1117.) In addition, Iskanian held that “whether or not an state law.” (Id. at p. 1118, 310 Cal.Rptr.3d 668, 532 P.3d 682;
individual claim is permissible under the PAGA,” where an see also Nickson v. Shemran, Inc. (2023) 90 Cal.App.5th 121,
employment agreement “compels the waiver of representative 306 Cal.Rptr.3d 835 [Viking River did not disturb Iskanian's
claims under the PAGA, it is contrary to public policy and rule that an arbitration agreement purporting to waive an
unenforceable as a matter of state law.” (Iskanian, supra, 59 employee's non-individual claims is unenforceable as a matter
Cal.4th at p. 384, 173 Cal.Rptr.3d 289, 327 P.3d 129.) Finally, of state law].) 3
the court held that the Federal Arbitration Act (FAA) (9
U.S.C. § 1 et seq.) “does not preempt a state law that prohibits
waiver of PAGA representative actions in an employment
contract.” (Iskanian, at p. 360, 173 Cal.Rptr.3d 289, 327 P.3d Factual and Procedural Background
129.) Following Iskanian, “various courts held that employers
A. Gentry's Complaint
may not require employees to ‘split’ PAGA actions in a
*3 Robert Half is a “specialized staffing services firm” and
manner that puts individual and non-individual components
Gentry worked for Robert Half as a temporary employee
of a PAGA claim into bifurcated proceedings.” (Adolph,
for several businesses, completing her last assignment in
supra, 14 Cal.5th at p. 1118.)
November 2014. In her first amended complaint, Gentry
alleged that Robert Half failed to provide her with proper
In Viking River, supra, 142 S.Ct. at page 1924, the United
wage statements and to pay all wages owed to her because
States Supreme Court held that “the FAA preempts the
she was not paid compensation for the time that she was
rule of Iskanian insofar as it precludes division of PAGA
required to spend preparing for potential job assignments. The
actions into individual and representative claims through
complaint alleges causes of action for (1) failure to pay wages,
an agreement to arbitrate.” The court explained that “
(2) failure to provide proper wage statements, (3) failure
‘individual’ ” PAGA claims are those which are “premised
to pay final wages and (4) unfair business practices, and a
on Labor Code violations actually sustained by the plaintiff”
fifth cause of action seeking penalties under PAGA for state
and non-individual PAGA claims are those that arise “out of
labor law violations. Gentry filed her complaint on behalf of
events involving other employees.” (Id. at p. 1916.) While
a putative class of terminated Robert Half employees and
the “wholesale waiver” of the right to bring a representative
alleged that her lawsuit was also “a representative/qui tam
PAGA action is impermissible as a matter of state law,
type action,” brought under PAGA “on behalf of the State of
contractual agreements to arbitrate only “individual PAGA
California and all current or former [Robert Half] employees
claims for Labor Code violations that an employee suffered”
who worked in California within the maximum allowable
are enforceable. (Id. at pp. 1923, 1925; Adolph, supra, 14
period of this claim.”
Cal.5th at p. 1119 [“Viking River requires enforcement of
agreements to arbitrate a PAGA plaintiff's individual claims
if the agreement is covered by the FAA.”].) Based on the B. The Arbitration Agreement
severability clause in the agreement before it, which provided While employed by Robert Half, Gentry did not expressly
that if the waiver provision is invalid in some respect, opt out of its standard arbitration policy and thereby agreed to
any portion of the waiver that remains valid must still be the terms of a “Mutual Agreement to Arbitrate Claims” (the
“enforced in arbitration,” the court in Viking River concluded arbitration agreement). The arbitration agreement is governed
that the plaintiff's individual PAGA claim must be severed by the FAA and requires arbitration of all “covered claims.”
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 2
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
The two portions of the arbitration agreement relevant to this local law,” constituted a waiver of Gentry's right to bring
analysis are as follows. “any PAGA claim.” Applying the severability clause, the
court concluded that the unlawful waiver voided the entire
The “Claims Covered by the Agreement” clause (covered arbitration agreement.
claims clause) provides that the parties “mutually agree to
resolve by arbitration, and only by individual arbitration, all *4 On appeal, Robert Half conceded that the agreement
claims, whether or not arising out of my employment (or contains an unenforceable provision waiving Gentry's right
its termination), that the Company may have against me or to bring a representative claim in any forum (which would
that I may have against the Company and any other related waive her right to bring a PAGA claim in any forum) but
or affiliated entity or person, including but not limited to argued that PAGA claims were expressly excluded from the
parent, subsidiary and affiliated companies and employees or scope of the agreement under the language of the covered
agents of any of them. I agree that no court or arbitrator shall claims clause. (Gentry I, supra, A147553, at pp. 6–7.) The
determine any of my rights or claims on a class, collective court rejected Robert Half's contention that the covered
or representative basis under any federal, state or local law. I claims clause did not include PAGA claims. (Id. at pp.
understand, however, that I retain the right to bring claims in 7–8.) The court found not only that the covered claims
arbitration for myself as an individual.” The clause continues, clause “contains a provision waiving the employee's right
“Except as provided in the section titled ‘Claims Not Covered to bring a representative PAGA action in any forum,” but
by the Agreement’, all claims that, in the absence of this further recognized the “scope of the agreement” as “broad
Agreement, could have been brought in court are subject and malleable, covering all conceivable disputes between the
to arbitration, whether the claims derive from common law, employee and [Robert Half].” (Id. at p. 12.) After finding
statute, regulation, or otherwise, including but not limited to the waiver unenforceable, the Gentry I court recognized that
tort claims, contract claims, claims for wages, and claims the severability clause operated to invalidate the agreement
for discrimination, retaliation and/or harassment. Except as to arbitrate: “This provision invalidates the entire arbitration
otherwise provided in this Agreement, both the Company and agreement because the ‘Claims Covered’ section of the [ ]
I agree that neither of us shall initiate or prosecute any lawsuit Agreement contains a void and unenforceable waiver of the
in any way related to any claim covered by this Agreement, employee's right to bring a representative PAGA action.” (Id.
other than a lawsuit seeking temporary equitable relief in aid at p. 10.) Accordingly, this court affirmed the denial of the
of arbitration.” motion to compel by decision filed August 14, 2018. (Ibid.)
The arbitration agreement also includes a “Construction and
Severability” clause (severability clause), which provides in D. Robert Half's Second Motion to Compel Arbitration
relevant part as follows: “If any provision of the section In 2022, following the Supreme Court's decision in Viking
entitled ‘Claims Covered by the Agreement’ is determined River, Robert Half filed a second motion to compel
to be void or unenforceable, then this Agreement shall be of arbitration, this time seeking to arbitrate Gentry's individual
no force or effect, because the parties intended to create an Labor Code claims and her individual PAGA claim, and to
agreement to arbitrate individual disputes only.” bifurcate and dismiss the remaining non-individual PAGA
claim. It argued that the agreement does not contain a PAGA
waiver at all. Robert Half claimed the arbitration agreement
C. Robert Half's First Motion to Compel Arbitration “addresses only Plaintiff's individual claims,” asserting that,
In November 2015, Robert Half filed a motion to compel “[t]here is no provision in the Agreement barring Plaintiff
arbitration of the first four of Gentry's causes of action based from acting as a PAGA representative for others in a forum
on the alleged violations of the Labor Code. Robert Half outside of the arbitration required of her individual claims
acknowledged that Gentry's fifth cause of action, for civil under the agreement.” It concluded that “the analysis applied
penalties under PAGA, was not subject to arbitration and by the Court is now obsolete because, under Viking River [ ],
asserted that it should be bifurcated and litigated separately the Arbitration Agreement does not contain any ‘waiver’ of
from her individual Labor Code claims. The trial court PAGA claims.”
denied the motion to compel arbitration. The court concluded
that the language, “I agree that no court or arbitrator The trial court again denied the motion. The court disagreed
shall determine any of my rights or claims on a class, with Robert Half's reinterpretation of the covered claims
collective or representative basis under any federal, state or clause and reiterated its prior ruling that the clause had “a
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 3
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
wholesale PAGA waiver that – by its own terms and not based suggestion, Viking River does not support, let alone compel,
on the abrogated portion of Iskanian – cannot be severed.” its proposed reinterpretation of the agreement. As discussed
Accordingly, the court concluded that the severability clause below, we find no merit to these arguments based on a plain
again precluded enforcement of any part of the agreement. reading of the agreement. 4
Robert Half timely filed a notice of appeal.
a. The waiver of the right to litigate covers not only
Gentry's individual claims, but “all claims” and almost
“all lawsuits.”
Discussion
Initially, Robert Half contends the reference to “any of my
1. Standard of Review rights or claims,” in the sentence, “no court or arbitrator shall
“Where, as here, the trial court's order denying a motion to determine any of my rights or claims on a class, collective
compel arbitration ‘rests solely on a decision of law,’ the or representative basis,” applies only to individual claims,
‘de novo standard of review is employed.’ ” (Gregg v. Uber including Gentry's individual PAGA claim. Robert Half's
Techs., Inc. (2023) 89 Cal.App.5th 786, 794, 306 Cal.Rptr.3d suggestion, however, that Gentry I previously determined
332.) that “claims” included only Gentry's individual PAGA claim
misstates the record. In Gentry I, Robert Half argued that
PAGA claims were not covered by the agreement because
2. Viking River does not change the result in this case. “PAGA claims belong only to the State.” This court rejected
Robert Half does not dispute that Viking River does not this argument, reasoning that an employee who brings a
alter the result in this case if the agreement is interpreted as PAGA claim “is also personally aggrieved” and thereby has
including an invalid “wholesale waiver” of Gentry's right to a “right as an individual to bring a PAGA claim.” (Gentry
bring a PAGA claim in any forum, as previously decided by I, at *13.) This court did not explicitly distinguish between
this court in Gentry I, or alternatively, if the agreement is individual and non-individual PAGA claims as those terms
interpreted as including an invalid waiver of Gentry's right are now understood after Viking River and Adolph, however it
to bring a representative or non-individual PAGA claim in recognized in substance that the agreement contained both “an
any forum. Under either interpretation, as a result of the agreement to arbitrate disputes that includes the employee's
differences in the severability clauses at issue here and in right to bring a PAGA claim as an individual who is personally
Viking River, the invalid waiver would render the entire aggrieved and is acting in his or her representative capacity,”
agreement unenforceable. and “representative action waivers.” (Gentry I, at *13.)
Robert Half contends, however, that the agreement should As the trial court correctly observed, Robert Half's
be reinterpreted entirely as requiring arbitration of Gentry's suggestion that the agreement includes only Gentry's
individual claims only. It suggests that the waiver language, “personal” or individual claims is “at odds with the totality of
previously interpreted as a wholesale waiver of Gentry's right the contract language.” A plain reading of the covered claims
to bring a PAGA claim, is actually a lawful agreement that clause illustrates the comprehensive scope of that clause.
Gentry's individual PAGA claim will not be “adjudicated Two separate references to “all claims” in the covered claims
on certain ‘bas[e]s’—i.e., in certain procedural ways (class, clause establish a broad waiver of the right to litigate all
collective, or representative).” In other words, the use of PAGA claims, both individual and non-individual. The first
the word “representative” in the covered claims clause reference to “all claims” in the covered claims clause states
permissibly waives “PAGA's claim-joinder mechanism,” not that the parties “mutually agree to resolve by arbitration,
Gentry's right to bring any PAGA claim in any forum. Robert and only by individual arbitration, all claims, whether or
Half argues that under such an interpretation, the severability not arising out of my employment (or its termination) ....”
clause is “not triggered” because the agreement does not This sentence contains no limitation on the term “all claims.”
include an invalid PAGA waiver. The second states, “Except as provided in the section
titled ‘Claims Not Covered by the Agreement,’ all claims
*5 A closer analysis of Robert Half's arguments that, in the absence of this Agreement, could have been
demonstrates that its proposed interpretation of the agreement brought in court are subject to arbitration, whether the claims
is tortured and unreasonable. Contrary to Robert Half's derive from common law, statute, regulation, or otherwise,
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 4
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
including but not limited to tort claims, contract claims, Robert Half argues that the word “representative” as used
claims for wages, and claims for discrimination, retaliation in the agreement is ambiguous and the ambiguity should be
and/or harassment.” PAGA claims, whether individual or resolved in favor of arbitration. We disagree. In Viking River,
non-individual, constitute claims that, in the absence of the the Court observed that PAGA actions are “representative”
agreement, could have been brought in court. Thus, each in two distinct ways. (142 S.Ct. at p. 1916.) “In the first
of these clauses encompasses a waiver of litigation and sense, PAGA actions are ‘representative’ in that they are
compels arbitration of both individual and non-individual brought by employees acting as representatives—that is, as
PAGA claims. agents or proxies—of the State. But PAGA claims are also
called ‘representative’ when they are predicated on code
*6 In addition, the agreement contains a ban on prosecuting violations sustained by other employees.” (Ibid.) The Court
any lawsuit except for one specific exception. The trial court explained that “when the word ‘representative’ is used in the
noted, “[T]he agreement goes on to prohibit the parties from second way, it makes sense to distinguish ‘individual’ PAGA
‘initiat[ing] or prosecut[ing] any lawsuit in any way related claims, which are premised on Labor Code violations actually
to any claim covered by the agreement, other than a lawsuit sustained by the plaintiff, from ‘representative’ (or perhaps
seeking temporary equitable relief in aid of arbitration.’ ” quasi-representative) PAGA claims arising out of events
The prohibition on initiating or prosecuting “any lawsuit” involving other employees.” (Ibid.) In this case, under either
unambiguously operates to include both individual and non- meaning, the agreement contains an invalid waiver. Either the
individual PAGA claims as understood in Viking River and agreement waives Gentry's right to bring a representative (in
Adolph. the first sense) PAGA claim, which would be a wholesale
waiver, as previously determined, or it waives her right to
bring a representative (in the second sense) PAGA claim,
b. The ban on claims brought on a representative basis which would be an invalid waiver of her right to bring a non-
cannot be read to exclude non-individual PAGA claims. individual or representative claim in any forum.
Robert Half's argument that the agreement does not contain
a “wholesale waiver” of Gentry's right to bring a PAGA Finally, we reject Robert Half's argument that a difference
claim fares no better. Robert Half reads the language between claims brought on a “representative basis” and
“no court or arbitrator shall determine any of my rights “representative action claims” distinguishes this case from a
or claims on a class, collective or representative basis” recent case in which the court found the latter constituted an
in the agreement as “merely a procedural agreement that invalid waiver of non-individual PAGA claims. In Galarsa
an individual's personal claims (“my rights or claims”) v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 305
cannot be adjudicated (‘determine[d]’) together with the Cal.Rptr.3d 15, the court found contract language that the
claims of others (on a ‘class, collective or representative employee “may not assert any class action, collective action
basis’).” (Italics added.) This reading ignores the language or representative action claims in any arbitration pursuant
waiving Gentry's right to litigate “all claims” and to initiate to the Agreement or in any other forum,” constituted an
or prosecute “any lawsuit” discussed above. As the trial court invalid waiver of the right to bring a representative action
again correctly observed, “construing the phrase ‘my rights under PAGA. (Id. at pp. 649–650, 305 Cal.Rptr.3d 15, bolding
or claims’ as somehow limiting the scope of the agreement omitted.) Robert Half asserts there is a difference between a
and PAGA waiver is impermissible as this would require waiver of the right to litigate “representative action claims,”
ignoring the majority of the language in the agreement that and a waiver of the right to litigate claims brought “on a
otherwise makes clear the broad and nearly unlimited scope of representative basis.” The Galarsa court did not address any
application of the agreement.” Robert Half's assertion, that difference between these phrases, and we see no meaningful
this constitutes a waiver of adjudication of Gentry's personal distinction for our purposes. At most, this argument would
claims “together with the claims of others,” is not supported support a conclusion that the word “representative” is being
by the grammatical construction of the sentence. Even if we used in the waiver provision in the second sense, what Robert
accept Robert Half's notion that this is “merely a procedural Half refers to as a waiver of the PAGA claims joinder
agreement,” this precludes adjudication in any forum of any mechanism. But as set forth above, that is still an invalid
claim brought by Gentry on a representative basis. Such a waiver insofar as it waives Gentry's right to bring a non-
waiver is invalid. individual PAGA claim in any forum.
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 5
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
*7 Our interpretation is consistent with other decisions The arbitration agreements in those cases did not have a
addressing this issue post-Viking River. For example, in poison pill provision like the one in Kindercare's agreement
Nickson v. Shemran, Inc., supra, 90 Cal.App.5th 121, 127, the here, and so PAGA claims could be divided: the ‘individual’
arbitration agreement provided, “All claims that are covered PAGA claim sent to arbitration and the ‘representative’
by this Agreement can only be brought ... on an individual PAGA claim pursued in court. [Citations.] [¶] Ironically, the
basis.... I agree to waive any right to join or consolidate claims language and structure of Kindercare's arbitration agreement
with others, or to make any claims as representative of a necessitates a result similar to the ‘claim joinder’ rule in
class, a member of a class, or in a private attorney general PAGA that Viking River deemed problematic when imposed
capacity.” The court concluded the above language includes by state law. [Citation.] The poison pill effectively prevents
an unenforceable waiver of nonindividual PAGA claims. (Id. us from sending Westmoreland's ‘individual’ claims under
at p. 130, 306 Cal.Rptr.3d 835.) Likewise, in Westmoreland, PAGA (representing the State of California but pursuing
supra, 90 Cal.App.5th at page 971, the arbitration agreement ‘individual’ remedies based on the plaintiff's status as a
provided that “ ‘arbitration is the only litigation forum for former employee) to arbitration, while allowing litigation
resolving covered claims’ ” and defined “ ‘covered claims” in court of her ‘representative’ claims under PAGA, which
broadly. The agreement also included a “Waiver of Class and involve the rights of other ‘aggrieved employees.’ [Citation.]
Collective Claims” clause that provided that “ ‘covered claims [¶] The arbitration agreement in this case sought to address
will be arbitrated only on an individual basis and that [the the uncertainty in the law in 2016 concerning the waiver
parties] waive the right to participate in or receive money of representative claims under PAGA by using the poison
or any other relief, to the maximum extent permitted by pill provision to prevent litigation on parallel tracks if it
law, from any class, collective, or representative proceeding.’ ever became clear that even one of Westmoreland's potential
” (Id. at p. 971, 307 Cal.Rptr.3d 554.) The court concluded class or representative claims could not be waived and would
that the above language included an invalid waiver of the right have to be pursued in court. The provision is unambiguous
to bring non-individual PAGA claims in any forum. (Id. at pp. and ‘presents an all-or-nothing proposition.’ [Citation.] The
971, 972–973, 981–982, 307 Cal.Rptr.3d 554.) We find that provision leaves no room for Kindercare to choose to
the covered claims clause includes an invalid waiver of the bifurcate Westmoreland's claims between arbitration and
right to litigate non-individual PAGA claims. court; it instead invalidates the agreement. [¶] In sum, ... we
conclude that the arbitration agreement is invalid by operation
of the unambiguous ‘Savings Clause and Conformity Clause.’
c. The severability clause invalidates the arbitration As a consequence of Kindercare's drafting decisions, and
agreement. absent further stipulation between the parties, the arbitration
The court's decision in Westmoreland resolves how the agreement is ‘invalid’ and so Kindercare must litigate all
severability clause applies in this case. In that case, as in this of Westmoreland's claims in court.” (Westmoreland, at p.
case, the arbitration agreement included a severability clause, 982,.) For the same reasons, we find, consistent with the
described as a “poison pill” provision, which invalidated the determinations of two trial court judges and this court in
arbitration agreement “if the Waiver of Class and Collective Gentry I, that the severability clause precludes enforcement of
Claims is found to be unenforceable.” (Westmoreland, supra, the arbitration agreement in this instance. We agree with the
90 Cal.App.5th at pp. 971–972.) Having found an invalid trial court's determination that “the language of the parties’
waiver of the employee's right to bring non-individual PAGA agreement is dispositive and the outcome of defendant's
claims in any forum, the court held that the severability motion, even applying [Viking River], comes down to an issue
clause precluded enforcement of the arbitration agreement. of contract interpretation.” Viking River changed the law but
The court explained, “Had Kindercare simply included a not the outcome in this case.
waiver of representative claims in its arbitration agreement,
and not included the poison pill at the end of the agreement,
the result here could have been substantially similar to that in 3. Gentry's request for sanctions is denied.
Viking River. The case also would have been similar to other *8 Code of Civil Procedure Section 907 provides: “When it
recent appellate decisions following Viking River, including appears to the reviewing court that the appeal was frivolous or
[Vaughn v.] Tesla [(2023) 87 Cal.App.5th 208, 225–226, 303 taken solely for delay, it may add to the costs on appeal such
Cal.Rptr.3d 457], Piplack [v. In-N-Out Burgers (2023) 88 damages as may be just.” An appeal is frivolous “when it is
Cal.App.5th 1281, 1285, 305 Cal.Rptr.3d 405], and Galarsa prosecuted for an improper motive––to harass the respondent
v. Dolgen California, LLC.[, supra, 88 Cal.App.5th 639]. or delay the effect of an adverse judgment––or when it
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 6
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
indisputably has no merit––when any reasonable attorney
would agree that the appeal is totally and completely without
merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, Disposition
650, 183 Cal.Rptr. 508, 646 P.2d 179.) Gentry argues that
Robert Half's shifting positions and interpretations of the The order denying Robert Half's petition to compel
agreement were only intended to delay the litigation and that arbitration is affirmed. Gentry's motion for sanctions is
Robert Half “is violating the integrity of the judicial process denied. Gentry shall recover her costs on appeal.
by taking conflicting positions regarding an agreement it
drafted and disregarding the law of the case.” The appeal,
she contends, is a frivolous attempt to avoid operation of WE CONCUR:
the severability clause it drafted and that no reasonable
attorney would have continued to prosecute this appeal after BROWN, P. J.
Westmoreland was decided. While Robert Half's attempt
to reinterpret its agreement was soundly rejected by the GOLDMAN, J.
trial court, we disagree that the appeal was frivolous given
All Citations
the significance of Viking River to this issue. Accordingly,
Gentry's motion for sanctions is denied. Not Reported in Cal.Rptr., 2023 WL 6430122
Footnotes
* Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
1 All statutory references are to the Labor Code unless otherwise noted.
2 In light of the court's observation in Westmoreland v. Kindercare Educ. LLC (2023) 90 Cal.App.5th 967,
973, 307 Cal.Rptr.3d 554 (Westmoreland) that “ ‘an order denying a renewed motion,’ including a renewed
motion to compel arbitration, ‘is not appealable,’ ” we requested supplemental briefing on whether the order
denying Robert Half's renewed petition to compel arbitration was an appealable order. Having reviewed the
supplemental briefs, we conclude that the order is appealable insofar as Robert Half altered its claim for relief
and now seeks to compel arbitration of Gentry's individual PAGA claim. (Code. Civ. Proc., § 1008, subd. (b)
[A party renews a motion by making a “subsequent application for the same order [based on] new or different
facts, circumstances, or law.”]; California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th
30, 43, 103 Cal.Rptr.3d 699 [In determining whether a second motion is a renewal of a previous motion, “ ‘
“[t]he nature of a motion is determined by the nature of the relief sought, not by the label attached to it.” ’ ”].)
3 The court in Viking River also suggested that once individual and non-individual claims are severed and
the individual claim referred to arbitration, the non-individual claim would have to be dismissed because the
plaintiff would no longer have standing to assert that claim. (Id. at p. 1925.) The court reasoned, “PAGA
provides no mechanism to enable a court to adjudicate nonindividual PAGA claims once an individual claim
has been committed to a separate proceeding.” (Id. at p. 1925.) In Adolph, supra, the court rejected this
interpretation of the PAGA standing requirements. The court held, as a matter of state law, that an aggrieved
employee who has been compelled to arbitrate claims under PAGA that are “premised on Labor Code
violations actually sustained by” the plaintiff, maintains statutory standing to pursue “PAGA claims arising out
of events involving other employees” in court. (Adolph, supra, 14 Cal.5th at p. 1114, quoting Viking River,
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 7
Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023)
supra, at p. –––– [142 S.Ct. at p. 1916].) In light of our conclusion below that the petition to compel arbitration
was properly denied, we do not reach the parties’ arguments regarding standing.
4 Gentry contends that Robert Half's belated attempt to reinterpret the arbitration agreement is barred by
the law of the case doctrine and alternatively, that the enforceability of the agreement has already been
“determined” and under the language of the agreement, it is not subject to reconsideration. This matter is
still pending, however, and the arbitrability of Gentry's PAGA claim has not been finally determined. Given
the significance of Viking River to the matter before us, we also reject Gentry's argument that the law of the
case doctrine precludes our reconsideration of the arbitration agreement. (See People v. Stanley (1995) 10
Cal.4th 764, 786–787, 42 Cal.Rptr.2d 543, 897 P.2d 481 [law of the case doctrine “will not be adhered to ...
where ... the controlling rules of law have been altered or clarified by a decision intervening between the first
and second appellate determinations”]; Carson Harbor Village, Ltd. v. City of Carson (2015) 239 Cal.App.4th
56, 70, 190 Cal.Rptr.3d 511 [“An intervening Supreme Court decision ... has for some time been considered
an exception to the law of the case doctrine]”.) As discussed below, however, we conclude that the arbitration
agreement, even when reexamined in light of changing authority, remains unenforceable.
End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.
© 2024 Thomson Reuters. No claim to original U.S. Government Works. 8
ITEM 2
Dorff v. Robert Half International Inc., Not Reported in Cal.Rptr. (2019)
2019 IER Cases 414,059
agreement applies; (2) a provision within the “Claims
Covered by the Agreement” section in which plaintiff waived
KeyCite Red Flag - Severe Negative Treatment her right to bring claims in a representative capacity; and (3)
Unpublished/noncitable October 29, 2019
the “Construction and Severability” section providing that if
any part of the “Claims Covered by the Agreement” section
2019 WL 5558068
is “adjudged” unenforceable, then the Agreement “shall be of
Not Officially Published
no force or effect, because the parties intended to create an
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
agreement to arbitrate individual disputes only.” (Underlining
California Rules of Court, rule 8.1115, restricts citation of omitted.)
unpublished opinions in California courts.
Court of Appeal, Second District, Division 1, California. The trial court found under the authority of Iskanian v.
CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th
Shari DORFF, Plaintiff and Respondent, 348 (Iskanian) that plaintiff's waiver of claims in her
v. representative capacity was unenforceable as applied to her
Preview
1 D.LAW, INC. Emil Davtyan (SBN 299363) 2 emil@d.law David Yeremian (SBN 226337) 3 d.yeremian@d.law David Keledjian (SBN 309135) 4 d.keledjian@d.law 5 David Arakelyan (SBN 337076) d.arakelyan@d.law 6 880 E. Broadway Glendale, CA 91205 7 Telephone: (818) 962-6465 Facsimile: (818) 962-6469 8 9 Attorneys for Plaintiff NATASHA DENISE TAYLOR 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SAN MATEO 12 13 NATASHA DENISE TAYLOR, on behalf of Case No. 23-CIV-05673 herself and aggrieved employees, 14 [Assigned for all purposes to the Hon. Jeffrey Plaintiff, R. Finnigan, Dept. 24] 15 PLAINTIFF’S REQUEST FOR JUDICIAL 16 v. NOTICE IN OPPOSITION TO MOTION TO COMPEL ARBITRATION OF 17 REALTY INCOME CORPORATION, a INDIVIDUAL PAGA CLAIM AND STAY Maryland corporation; ROBERT HALF INC., PENDING ARBITRATION 18 a Delaware corporation, and DOES 1 through Date: April 26, 2024 19 50, inclusive, Time: 9:00AM Location: Dept. 24, Courtroom 2F 20 Defendants. Complaint Filed: November 29, 2023 21 Trial Date: None 22 23 24 25 26 27 28 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE 1 TO THE HONORABLE COURT, DEFENDANTS, AND THEIR ATTORNEYS OF 2 RECORD: 3 PLEASE TAKE NOTICE that Plaintiff NATASHA DENISE TAYLOR (“Plaintiff”) will, 4 and hereby does, respectfully request that the Court take judicial notice of the following items in 5 support of Plaintiff’s Opposition to Defendant’s Motion to Compel Arbitration of Individual PAGA 6 Claim and Stay Pending Arbitration. 7 ITEM 1: Gentry v. Robert Half International, Inc. (Cal. Ct. App., Oct. 3, 2023, No. 8 A166610) 2023 WL 6430122, at *1, reh'g denied (Oct. 19, 2023). This decision is unpublished and 9 uncitable. 10 ITEM 2: Dorff v. Robert Half International Inc. (Cal. Ct. App., Oct. 29, 2019) 2019 IER 11 Cases 414059. This decision is unpublished and uncitable. 12 ITEM 3: Jennings v. Knighted Ventures, LLC, 21CV391681, Santa Clara County Superior 13 Court, dated August 18, 2022. 14 ITEM 4: Raymond v. CompuCom Systems, Inc., 2:21-cv-02327-KJM-KJN, U.S. District 15 Court for the Eastern District of California, dated August 23, 2023. 16 ITEM 5: Cano v. Infinite Velocity Automotive, Inc., 21STCV18259, Alameda County 17 Superior Court, dated October 4, 2023. 18 19 20 Dated: April 15, 2024 D.LAW 21 /s/ David Keledjian 22 David Yeremian 23 David Keledjian David Arakelyan 24 Attorneys for Plaintiff NATASHA DENISE TAYLOR 25 26 27 28 2 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE ITEM 1 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) her claims as an individual and putative class representative seeking damages, and also in a representative capacity under KeyCite Red Flag - Severe Negative Treatment the Private Attorneys General Act of 2004 (PAGA; Lab. Unpublished/noncitable October 3, 2023 Code, § 2698 et seq.) 1 seeking civil penalties for Labor Code 2023 WL 6430122 violations suffered by her or by other employees. Robert Half Not Officially Published moved to compel arbitration of her individual claims under (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) the Labor Code and to stay the remaining claims, including Only the Westlaw citation is currently available. her PAGA claim. The trial court denied the petition on the ground that the arbitration agreement contained an invalid California Rules of Court, rule 8.1115, restricts waiver of Gentry's right to bring a PAGA claim in any forum, citation of unpublished opinions in California courts. which under a severability clause that voided the arbitration agreement if any provision was determined to be invalid, Court of Appeal, First District, Division 4, California. rendered the entire agreement to arbitrate unenforceable. In 2018, this court affirmed the trial court's order. (Gentry v. Jessica GENTRY, Plaintiff and Respondent, Robert Half Int'l, Inc. (A147553, Aug. 14, 2018), 2018 WL v. 3853775, 2018 Cal.App.Unpub. LEXIS 5506 [nonpub. opn.] ROBERT HALF INTERNATIONAL, (“Gentry I”).) INC., Defendant and Appellant. This appeal is from the denial of Robert Half's second A166610 petition to compel arbitration, which it filed in October 2022. | Robert Half argued that the parties’ arbitration agreement Filed October 3, 2023 must be reinterpreted in light of the United States Supreme (City & County of San Francisco Super. Ct. No. Court decision in Viking River Cruises, Inc. v. Moriana (2022) CGC-15-544878) 596 U.S. ––––, 142 S. Ct. 1906, 213 L.Ed.2d 179 (Viking River). The trial court denied the petition, finding that Viking Attorneys and Law Firms River neither altered the court's prior interpretation of the agreement nor affected the operation of the severability clause James R. Patterson, Patterson Law Group, APC, 402 West in this case. Robert Half timely appealed. 2 After briefing Broadway, Suite 1950, San Diego, CA 92101, Jennifer was complete, Gentry filed a request for sanctions. We find Michele French, Patterson Law Group APC, 402 West no error and affirm the order denying the petition to compel Broadway, Suite 1950, San Diego, CA 92101-3456, Alisa A. arbitration. We also deny Gentry's motion for sanctions. Martin, AMartin Law, 600 West Broadway, Suite 1700, San Diego, CA 92101, for Plaintiff and Respondent. Roland M. Juarez, Hunton Andrews Kurth LLP, 550 South Legal Background Hope Street, Suite 2000, Los Angeles, CA 90071, Adam P. KohSweeney, O'Melveny & Myers LLP, Two Embarcadero *2 “PAGA authorizes ‘an aggrieved employee,’ acting Center - 28th Floor, San Francisco, CA 94111, Elbert as a proxy or agent of the state Labor and Workforce Lin, Hunton Andrews Kurth LLP, 951 East Byrd Street, Development Agency (LWDA), to bring a civil action against Richmond, VA 23219, for Defendant and Appellant. an employer ‘on behalf of himself or herself and other current or former employees’ to recover civil penalties for Opinion Labor Code violations they have sustained.” (Adolph v. Uber Techs., Inc. (2023) 14 Cal.5th 1104, 1113, 310 Cal.Rptr.3d HIRAMOTO, J. * 668, 532 P.3d 682, quoting § 2699, subd. (a) (Adolph).) “A PAGA claim for civil penalties ‘ “ ‘is fundamentally a law *1 In 2015, plaintiff Jessica Gentry filed the present action enforcement action.’ ” ’ [Citation.] ‘The “government entity against her former employer, Robert Half International, on whose behalf the plaintiff files suit is ....the real party Inc. (Robert Half), alleging several causes of action for in interest.” ’ ” (Id. at p. 1117, 310 Cal.Rptr.3d 668, 532 Labor Code violations and an unfair competition law (UCL) P.3d 682; quoting Kim v. Reins International California, claim (Bus. & Prof. Code, § 17200 et seq.). Gentry brought Inc. (2020) 9 Cal.5th 73, 81, 259 Cal.Rptr.3d 769, 459 © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) P.3d 1123.) “An employee who brings a PAGA action to from the non-individual claim and resolved by arbitration. recover civil penalties acts “ ‘as the proxy or agent’ ” of the (142 S.Ct. at p. 1925.) state. [Citations.] ‘PAGA is designed primarily to benefit the general public, not the party bringing the action.’ ” (Id. at p. In Adolph, supra, 14 Cal.5th 1104, the court confirmed that 1116, 310 Cal.Rptr.3d 668, 532 P.3d 682.) the Supreme Court in Viking River left “undisturbed” the holding in Iskanian that a “predispute categorical waiver In Iskanian v. CLS Transportation Los Angeles, LLC (2014) of the right to bring a PAGA action is unenforceable.” (14 59 Cal.4th 348, 360, 173 Cal.Rptr.3d 289, 327 P.3d 129 Cal.5th at p. 1117.) In addition, the Supreme Court left (Iskanian), the California Supreme Court held that “a “intact” the rule that “[w]here ... an employment agreement predispute categorical waiver of the right to bring a PAGA compels the waiver of representative claims under the PAGA, action is unenforceable.” (Adolph, supra, 14 Cal.5th at p. it is contrary to public policy and unenforceable as a matter of 1117.) In addition, Iskanian held that “whether or not an state law.” (Id. at p. 1118, 310 Cal.Rptr.3d 668, 532 P.3d 682; individual claim is permissible under the PAGA,” where an see also Nickson v. Shemran, Inc. (2023) 90 Cal.App.5th 121, employment agreement “compels the waiver of representative 306 Cal.Rptr.3d 835 [Viking River did not disturb Iskanian's claims under the PAGA, it is contrary to public policy and rule that an arbitration agreement purporting to waive an unenforceable as a matter of state law.” (Iskanian, supra, 59 employee's non-individual claims is unenforceable as a matter Cal.4th at p. 384, 173 Cal.Rptr.3d 289, 327 P.3d 129.) Finally, of state law].) 3 the court held that the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) “does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract.” (Iskanian, at p. 360, 173 Cal.Rptr.3d 289, 327 P.3d Factual and Procedural Background 129.) Following Iskanian, “various courts held that employers A. Gentry's Complaint may not require employees to ‘split’ PAGA actions in a *3 Robert Half is a “specialized staffing services firm” and manner that puts individual and non-individual components Gentry worked for Robert Half as a temporary employee of a PAGA claim into bifurcated proceedings.” (Adolph, for several businesses, completing her last assignment in supra, 14 Cal.5th at p. 1118.) November 2014. In her first amended complaint, Gentry alleged that Robert Half failed to provide her with proper In Viking River, supra, 142 S.Ct. at page 1924, the United wage statements and to pay all wages owed to her because States Supreme Court held that “the FAA preempts the she was not paid compensation for the time that she was rule of Iskanian insofar as it precludes division of PAGA required to spend preparing for potential job assignments. The actions into individual and representative claims through complaint alleges causes of action for (1) failure to pay wages, an agreement to arbitrate.” The court explained that “ (2) failure to provide proper wage statements, (3) failure ‘individual’ ” PAGA claims are those which are “premised to pay final wages and (4) unfair business practices, and a on Labor Code violations actually sustained by the plaintiff” fifth cause of action seeking penalties under PAGA for state and non-individual PAGA claims are those that arise “out of labor law violations. Gentry filed her complaint on behalf of events involving other employees.” (Id. at p. 1916.) While a putative class of terminated Robert Half employees and the “wholesale waiver” of the right to bring a representative alleged that her lawsuit was also “a representative/qui tam PAGA action is impermissible as a matter of state law, type action,” brought under PAGA “on behalf of the State of contractual agreements to arbitrate only “individual PAGA California and all current or former [Robert Half] employees claims for Labor Code violations that an employee suffered” who worked in California within the maximum allowable are enforceable. (Id. at pp. 1923, 1925; Adolph, supra, 14 period of this claim.” Cal.5th at p. 1119 [“Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA.”].) Based on the B. The Arbitration Agreement severability clause in the agreement before it, which provided While employed by Robert Half, Gentry did not expressly that if the waiver provision is invalid in some respect, opt out of its standard arbitration policy and thereby agreed to any portion of the waiver that remains valid must still be the terms of a “Mutual Agreement to Arbitrate Claims” (the “enforced in arbitration,” the court in Viking River concluded arbitration agreement). The arbitration agreement is governed that the plaintiff's individual PAGA claim must be severed by the FAA and requires arbitration of all “covered claims.” © 2024 Thomson Reuters. No claim to original U.S. Government Works. 2 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) The two portions of the arbitration agreement relevant to this local law,” constituted a waiver of Gentry's right to bring analysis are as follows. “any PAGA claim.” Applying the severability clause, the court concluded that the unlawful waiver voided the entire The “Claims Covered by the Agreement” clause (covered arbitration agreement. claims clause) provides that the parties “mutually agree to resolve by arbitration, and only by individual arbitration, all *4 On appeal, Robert Half conceded that the agreement claims, whether or not arising out of my employment (or contains an unenforceable provision waiving Gentry's right its termination), that the Company may have against me or to bring a representative claim in any forum (which would that I may have against the Company and any other related waive her right to bring a PAGA claim in any forum) but or affiliated entity or person, including but not limited to argued that PAGA claims were expressly excluded from the parent, subsidiary and affiliated companies and employees or scope of the agreement under the language of the covered agents of any of them. I agree that no court or arbitrator shall claims clause. (Gentry I, supra, A147553, at pp. 6–7.) The determine any of my rights or claims on a class, collective court rejected Robert Half's contention that the covered or representative basis under any federal, state or local law. I claims clause did not include PAGA claims. (Id. at pp. understand, however, that I retain the right to bring claims in 7–8.) The court found not only that the covered claims arbitration for myself as an individual.” The clause continues, clause “contains a provision waiving the employee's right “Except as provided in the section titled ‘Claims Not Covered to bring a representative PAGA action in any forum,” but by the Agreement’, all claims that, in the absence of this further recognized the “scope of the agreement” as “broad Agreement, could have been brought in court are subject and malleable, covering all conceivable disputes between the to arbitration, whether the claims derive from common law, employee and [Robert Half].” (Id. at p. 12.) After finding statute, regulation, or otherwise, including but not limited to the waiver unenforceable, the Gentry I court recognized that tort claims, contract claims, claims for wages, and claims the severability clause operated to invalidate the agreement for discrimination, retaliation and/or harassment. Except as to arbitrate: “This provision invalidates the entire arbitration otherwise provided in this Agreement, both the Company and agreement because the ‘Claims Covered’ section of the [ ] I agree that neither of us shall initiate or prosecute any lawsuit Agreement contains a void and unenforceable waiver of the in any way related to any claim covered by this Agreement, employee's right to bring a representative PAGA action.” (Id. other than a lawsuit seeking temporary equitable relief in aid at p. 10.) Accordingly, this court affirmed the denial of the of arbitration.” motion to compel by decision filed August 14, 2018. (Ibid.) The arbitration agreement also includes a “Construction and Severability” clause (severability clause), which provides in D. Robert Half's Second Motion to Compel Arbitration relevant part as follows: “If any provision of the section In 2022, following the Supreme Court's decision in Viking entitled ‘Claims Covered by the Agreement’ is determined River, Robert Half filed a second motion to compel to be void or unenforceable, then this Agreement shall be of arbitration, this time seeking to arbitrate Gentry's individual no force or effect, because the parties intended to create an Labor Code claims and her individual PAGA claim, and to agreement to arbitrate individual disputes only.” bifurcate and dismiss the remaining non-individual PAGA claim. It argued that the agreement does not contain a PAGA waiver at all. Robert Half claimed the arbitration agreement C. Robert Half's First Motion to Compel Arbitration “addresses only Plaintiff's individual claims,” asserting that, In November 2015, Robert Half filed a motion to compel “[t]here is no provision in the Agreement barring Plaintiff arbitration of the first four of Gentry's causes of action based from acting as a PAGA representative for others in a forum on the alleged violations of the Labor Code. Robert Half outside of the arbitration required of her individual claims acknowledged that Gentry's fifth cause of action, for civil under the agreement.” It concluded that “the analysis applied penalties under PAGA, was not subject to arbitration and by the Court is now obsolete because, under Viking River [ ], asserted that it should be bifurcated and litigated separately the Arbitration Agreement does not contain any ‘waiver’ of from her individual Labor Code claims. The trial court PAGA claims.” denied the motion to compel arbitration. The court concluded that the language, “I agree that no court or arbitrator The trial court again denied the motion. The court disagreed shall determine any of my rights or claims on a class, with Robert Half's reinterpretation of the covered claims collective or representative basis under any federal, state or clause and reiterated its prior ruling that the clause had “a © 2024 Thomson Reuters. No claim to original U.S. Government Works. 3 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) wholesale PAGA waiver that – by its own terms and not based suggestion, Viking River does not support, let alone compel, on the abrogated portion of Iskanian – cannot be severed.” its proposed reinterpretation of the agreement. As discussed Accordingly, the court concluded that the severability clause below, we find no merit to these arguments based on a plain again precluded enforcement of any part of the agreement. reading of the agreement. 4 Robert Half timely filed a notice of appeal. a. The waiver of the right to litigate covers not only Gentry's individual claims, but “all claims” and almost “all lawsuits.” Discussion Initially, Robert Half contends the reference to “any of my 1. Standard of Review rights or claims,” in the sentence, “no court or arbitrator shall “Where, as here, the trial court's order denying a motion to determine any of my rights or claims on a class, collective compel arbitration ‘rests solely on a decision of law,’ the or representative basis,” applies only to individual claims, ‘de novo standard of review is employed.’ ” (Gregg v. Uber including Gentry's individual PAGA claim. Robert Half's Techs., Inc. (2023) 89 Cal.App.5th 786, 794, 306 Cal.Rptr.3d suggestion, however, that Gentry I previously determined 332.) that “claims” included only Gentry's individual PAGA claim misstates the record. In Gentry I, Robert Half argued that PAGA claims were not covered by the agreement because 2. Viking River does not change the result in this case. “PAGA claims belong only to the State.” This court rejected Robert Half does not dispute that Viking River does not this argument, reasoning that an employee who brings a alter the result in this case if the agreement is interpreted as PAGA claim “is also personally aggrieved” and thereby has including an invalid “wholesale waiver” of Gentry's right to a “right as an individual to bring a PAGA claim.” (Gentry bring a PAGA claim in any forum, as previously decided by I, at *13.) This court did not explicitly distinguish between this court in Gentry I, or alternatively, if the agreement is individual and non-individual PAGA claims as those terms interpreted as including an invalid waiver of Gentry's right are now understood after Viking River and Adolph, however it to bring a representative or non-individual PAGA claim in recognized in substance that the agreement contained both “an any forum. Under either interpretation, as a result of the agreement to arbitrate disputes that includes the employee's differences in the severability clauses at issue here and in right to bring a PAGA claim as an individual who is personally Viking River, the invalid waiver would render the entire aggrieved and is acting in his or her representative capacity,” agreement unenforceable. and “representative action waivers.” (Gentry I, at *13.) Robert Half contends, however, that the agreement should As the trial court correctly observed, Robert Half's be reinterpreted entirely as requiring arbitration of Gentry's suggestion that the agreement includes only Gentry's individual claims only. It suggests that the waiver language, “personal” or individual claims is “at odds with the totality of previously interpreted as a wholesale waiver of Gentry's right the contract language.” A plain reading of the covered claims to bring a PAGA claim, is actually a lawful agreement that clause illustrates the comprehensive scope of that clause. Gentry's individual PAGA claim will not be “adjudicated Two separate references to “all claims” in the covered claims on certain ‘bas[e]s’—i.e., in certain procedural ways (class, clause establish a broad waiver of the right to litigate all collective, or representative).” In other words, the use of PAGA claims, both individual and non-individual. The first the word “representative” in the covered claims clause reference to “all claims” in the covered claims clause states permissibly waives “PAGA's claim-joinder mechanism,” not that the parties “mutually agree to resolve by arbitration, Gentry's right to bring any PAGA claim in any forum. Robert and only by individual arbitration, all claims, whether or Half argues that under such an interpretation, the severability not arising out of my employment (or its termination) ....” clause is “not triggered” because the agreement does not This sentence contains no limitation on the term “all claims.” include an invalid PAGA waiver. The second states, “Except as provided in the section titled ‘Claims Not Covered by the Agreement,’ all claims *5 A closer analysis of Robert Half's arguments that, in the absence of this Agreement, could have been demonstrates that its proposed interpretation of the agreement brought in court are subject to arbitration, whether the claims is tortured and unreasonable. Contrary to Robert Half's derive from common law, statute, regulation, or otherwise, © 2024 Thomson Reuters. No claim to original U.S. Government Works. 4 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) including but not limited to tort claims, contract claims, Robert Half argues that the word “representative” as used claims for wages, and claims for discrimination, retaliation in the agreement is ambiguous and the ambiguity should be and/or harassment.” PAGA claims, whether individual or resolved in favor of arbitration. We disagree. In Viking River, non-individual, constitute claims that, in the absence of the the Court observed that PAGA actions are “representative” agreement, could have been brought in court. Thus, each in two distinct ways. (142 S.Ct. at p. 1916.) “In the first of these clauses encompasses a waiver of litigation and sense, PAGA actions are ‘representative’ in that they are compels arbitration of both individual and non-individual brought by employees acting as representatives—that is, as PAGA claims. agents or proxies—of the State. But PAGA claims are also called ‘representative’ when they are predicated on code *6 In addition, the agreement contains a ban on prosecuting violations sustained by other employees.” (Ibid.) The Court any lawsuit except for one specific exception. The trial court explained that “when the word ‘representative’ is used in the noted, “[T]he agreement goes on to prohibit the parties from second way, it makes sense to distinguish ‘individual’ PAGA ‘initiat[ing] or prosecut[ing] any lawsuit in any way related claims, which are premised on Labor Code violations actually to any claim covered by the agreement, other than a lawsuit sustained by the plaintiff, from ‘representative’ (or perhaps seeking temporary equitable relief in aid of arbitration.’ ” quasi-representative) PAGA claims arising out of events The prohibition on initiating or prosecuting “any lawsuit” involving other employees.” (Ibid.) In this case, under either unambiguously operates to include both individual and non- meaning, the agreement contains an invalid waiver. Either the individual PAGA claims as understood in Viking River and agreement waives Gentry's right to bring a representative (in Adolph. the first sense) PAGA claim, which would be a wholesale waiver, as previously determined, or it waives her right to bring a representative (in the second sense) PAGA claim, b. The ban on claims brought on a representative basis which would be an invalid waiver of her right to bring a non- cannot be read to exclude non-individual PAGA claims. individual or representative claim in any forum. Robert Half's argument that the agreement does not contain a “wholesale waiver” of Gentry's right to bring a PAGA Finally, we reject Robert Half's argument that a difference claim fares no better. Robert Half reads the language between claims brought on a “representative basis” and “no court or arbitrator shall determine any of my rights “representative action claims” distinguishes this case from a or claims on a class, collective or representative basis” recent case in which the court found the latter constituted an in the agreement as “merely a procedural agreement that invalid waiver of non-individual PAGA claims. In Galarsa an individual's personal claims (“my rights or claims”) v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 305 cannot be adjudicated (‘determine[d]’) together with the Cal.Rptr.3d 15, the court found contract language that the claims of others (on a ‘class, collective or representative employee “may not assert any class action, collective action basis’).” (Italics added.) This reading ignores the language or representative action claims in any arbitration pursuant waiving Gentry's right to litigate “all claims” and to initiate to the Agreement or in any other forum,” constituted an or prosecute “any lawsuit” discussed above. As the trial court invalid waiver of the right to bring a representative action again correctly observed, “construing the phrase ‘my rights under PAGA. (Id. at pp. 649–650, 305 Cal.Rptr.3d 15, bolding or claims’ as somehow limiting the scope of the agreement omitted.) Robert Half asserts there is a difference between a and PAGA waiver is impermissible as this would require waiver of the right to litigate “representative action claims,” ignoring the majority of the language in the agreement that and a waiver of the right to litigate claims brought “on a otherwise makes clear the broad and nearly unlimited scope of representative basis.” The Galarsa court did not address any application of the agreement.” Robert Half's assertion, that difference between these phrases, and we see no meaningful this constitutes a waiver of adjudication of Gentry's personal distinction for our purposes. At most, this argument would claims “together with the claims of others,” is not supported support a conclusion that the word “representative” is being by the grammatical construction of the sentence. Even if we used in the waiver provision in the second sense, what Robert accept Robert Half's notion that this is “merely a procedural Half refers to as a waiver of the PAGA claims joinder agreement,” this precludes adjudication in any forum of any mechanism. But as set forth above, that is still an invalid claim brought by Gentry on a representative basis. Such a waiver insofar as it waives Gentry's right to bring a non- waiver is invalid. individual PAGA claim in any forum. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 5 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) *7 Our interpretation is consistent with other decisions The arbitration agreements in those cases did not have a addressing this issue post-Viking River. For example, in poison pill provision like the one in Kindercare's agreement Nickson v. Shemran, Inc., supra, 90 Cal.App.5th 121, 127, the here, and so PAGA claims could be divided: the ‘individual’ arbitration agreement provided, “All claims that are covered PAGA claim sent to arbitration and the ‘representative’ by this Agreement can only be brought ... on an individual PAGA claim pursued in court. [Citations.] [¶] Ironically, the basis.... I agree to waive any right to join or consolidate claims language and structure of Kindercare's arbitration agreement with others, or to make any claims as representative of a necessitates a result similar to the ‘claim joinder’ rule in class, a member of a class, or in a private attorney general PAGA that Viking River deemed problematic when imposed capacity.” The court concluded the above language includes by state law. [Citation.] The poison pill effectively prevents an unenforceable waiver of nonindividual PAGA claims. (Id. us from sending Westmoreland's ‘individual’ claims under at p. 130, 306 Cal.Rptr.3d 835.) Likewise, in Westmoreland, PAGA (representing the State of California but pursuing supra, 90 Cal.App.5th at page 971, the arbitration agreement ‘individual’ remedies based on the plaintiff's status as a provided that “ ‘arbitration is the only litigation forum for former employee) to arbitration, while allowing litigation resolving covered claims’ ” and defined “ ‘covered claims” in court of her ‘representative’ claims under PAGA, which broadly. The agreement also included a “Waiver of Class and involve the rights of other ‘aggrieved employees.’ [Citation.] Collective Claims” clause that provided that “ ‘covered claims [¶] The arbitration agreement in this case sought to address will be arbitrated only on an individual basis and that [the the uncertainty in the law in 2016 concerning the waiver parties] waive the right to participate in or receive money of representative claims under PAGA by using the poison or any other relief, to the maximum extent permitted by pill provision to prevent litigation on parallel tracks if it law, from any class, collective, or representative proceeding.’ ever became clear that even one of Westmoreland's potential ” (Id. at p. 971, 307 Cal.Rptr.3d 554.) The court concluded class or representative claims could not be waived and would that the above language included an invalid waiver of the right have to be pursued in court. The provision is unambiguous to bring non-individual PAGA claims in any forum. (Id. at pp. and ‘presents an all-or-nothing proposition.’ [Citation.] The 971, 972–973, 981–982, 307 Cal.Rptr.3d 554.) We find that provision leaves no room for Kindercare to choose to the covered claims clause includes an invalid waiver of the bifurcate Westmoreland's claims between arbitration and right to litigate non-individual PAGA claims. court; it instead invalidates the agreement. [¶] In sum, ... we conclude that the arbitration agreement is invalid by operation of the unambiguous ‘Savings Clause and Conformity Clause.’ c. The severability clause invalidates the arbitration As a consequence of Kindercare's drafting decisions, and agreement. absent further stipulation between the parties, the arbitration The court's decision in Westmoreland resolves how the agreement is ‘invalid’ and so Kindercare must litigate all severability clause applies in this case. In that case, as in this of Westmoreland's claims in court.” (Westmoreland, at p. case, the arbitration agreement included a severability clause, 982,.) For the same reasons, we find, consistent with the described as a “poison pill” provision, which invalidated the determinations of two trial court judges and this court in arbitration agreement “if the Waiver of Class and Collective Gentry I, that the severability clause precludes enforcement of Claims is found to be unenforceable.” (Westmoreland, supra, the arbitration agreement in this instance. We agree with the 90 Cal.App.5th at pp. 971–972.) Having found an invalid trial court's determination that “the language of the parties’ waiver of the employee's right to bring non-individual PAGA agreement is dispositive and the outcome of defendant's claims in any forum, the court held that the severability motion, even applying [Viking River], comes down to an issue clause precluded enforcement of the arbitration agreement. of contract interpretation.” Viking River changed the law but The court explained, “Had Kindercare simply included a not the outcome in this case. waiver of representative claims in its arbitration agreement, and not included the poison pill at the end of the agreement, the result here could have been substantially similar to that in 3. Gentry's request for sanctions is denied. Viking River. The case also would have been similar to other *8 Code of Civil Procedure Section 907 provides: “When it recent appellate decisions following Viking River, including appears to the reviewing court that the appeal was frivolous or [Vaughn v.] Tesla [(2023) 87 Cal.App.5th 208, 225–226, 303 taken solely for delay, it may add to the costs on appeal such Cal.Rptr.3d 457], Piplack [v. In-N-Out Burgers (2023) 88 damages as may be just.” An appeal is frivolous “when it is Cal.App.5th 1281, 1285, 305 Cal.Rptr.3d 405], and Galarsa prosecuted for an improper motive––to harass the respondent v. Dolgen California, LLC.[, supra, 88 Cal.App.5th 639]. or delay the effect of an adverse judgment––or when it © 2024 Thomson Reuters. No claim to original U.S. Government Works. 6 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) indisputably has no merit––when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, Disposition 650, 183 Cal.Rptr. 508, 646 P.2d 179.) Gentry argues that Robert Half's shifting positions and interpretations of the The order denying Robert Half's petition to compel agreement were only intended to delay the litigation and that arbitration is affirmed. Gentry's motion for sanctions is Robert Half “is violating the integrity of the judicial process denied. Gentry shall recover her costs on appeal. by taking conflicting positions regarding an agreement it drafted and disregarding the law of the case.” The appeal, she contends, is a frivolous attempt to avoid operation of WE CONCUR: the severability clause it drafted and that no reasonable attorney would have continued to prosecute this appeal after BROWN, P. J. Westmoreland was decided. While Robert Half's attempt to reinterpret its agreement was soundly rejected by the GOLDMAN, J. trial court, we disagree that the appeal was frivolous given All Citations the significance of Viking River to this issue. Accordingly, Gentry's motion for sanctions is denied. Not Reported in Cal.Rptr., 2023 WL 6430122 Footnotes * Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 1 All statutory references are to the Labor Code unless otherwise noted. 2 In light of the court's observation in Westmoreland v. Kindercare Educ. LLC (2023) 90 Cal.App.5th 967, 973, 307 Cal.Rptr.3d 554 (Westmoreland) that “ ‘an order denying a renewed motion,’ including a renewed motion to compel arbitration, ‘is not appealable,’ ” we requested supplemental briefing on whether the order denying Robert Half's renewed petition to compel arbitration was an appealable order. Having reviewed the supplemental briefs, we conclude that the order is appealable insofar as Robert Half altered its claim for relief and now seeks to compel arbitration of Gentry's individual PAGA claim. (Code. Civ. Proc., § 1008, subd. (b) [A party renews a motion by making a “subsequent application for the same order [based on] new or different facts, circumstances, or law.”]; California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43, 103 Cal.Rptr.3d 699 [In determining whether a second motion is a renewal of a previous motion, “ ‘ “[t]he nature of a motion is determined by the nature of the relief sought, not by the label attached to it.” ’ ”].) 3 The court in Viking River also suggested that once individual and non-individual claims are severed and the individual claim referred to arbitration, the non-individual claim would have to be dismissed because the plaintiff would no longer have standing to assert that claim. (Id. at p. 1925.) The court reasoned, “PAGA provides no mechanism to enable a court to adjudicate nonindividual PAGA claims once an individual claim has been committed to a separate proceeding.” (Id. at p. 1925.) In Adolph, supra, the court rejected this interpretation of the PAGA standing requirements. The court held, as a matter of state law, that an aggrieved employee who has been compelled to arbitrate claims under PAGA that are “premised on Labor Code violations actually sustained by” the plaintiff, maintains statutory standing to pursue “PAGA claims arising out of events involving other employees” in court. (Adolph, supra, 14 Cal.5th at p. 1114, quoting Viking River, © 2024 Thomson Reuters. No claim to original U.S. Government Works. 7 Gentry v. Robert Half International, Inc., Not Reported in Cal.Rptr. (2023) supra, at p. –––– [142 S.Ct. at p. 1916].) In light of our conclusion below that the petition to compel arbitration was properly denied, we do not reach the parties’ arguments regarding standing. 4 Gentry contends that Robert Half's belated attempt to reinterpret the arbitration agreement is barred by the law of the case doctrine and alternatively, that the enforceability of the agreement has already been “determined” and under the language of the agreement, it is not subject to reconsideration. This matter is still pending, however, and the arbitrability of Gentry's PAGA claim has not been finally determined. Given the significance of Viking River to the matter before us, we also reject Gentry's argument that the law of the case doctrine precludes our reconsideration of the arbitration agreement. (See People v. Stanley (1995) 10 Cal.4th 764, 786–787, 42 Cal.Rptr.2d 543, 897 P.2d 481 [law of the case doctrine “will not be adhered to ... where ... the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations”]; Carson Harbor Village, Ltd. v. City of Carson (2015) 239 Cal.App.4th 56, 70, 190 Cal.Rptr.3d 511 [“An intervening Supreme Court decision ... has for some time been considered an exception to the law of the case doctrine]”.) As discussed below, however, we conclude that the arbitration agreement, even when reexamined in light of changing authority, remains unenforceable. End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works. © 2024 Thomson Reuters. No claim to original U.S. Government Works. 8 ITEM 2 Dorff v. Robert Half International Inc., Not Reported in Cal.Rptr. (2019) 2019 IER Cases 414,059 agreement applies; (2) a provision within the “Claims Covered by the Agreement” section in which plaintiff waived KeyCite Red Flag - Severe Negative Treatment her right to bring claims in a representative capacity; and (3) Unpublished/noncitable October 29, 2019 the “Construction and Severability” section providing that if any part of the “Claims Covered by the Agreement” section 2019 WL 5558068 is “adjudged” unenforceable, then the Agreement “shall be of Not Officially Published no force or effect, because the parties intended to create an (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115) agreement to arbitrate individual disputes only.” (Underlining California Rules of Court, rule 8.1115, restricts citation of omitted.) unpublished opinions in California courts. Court of Appeal, Second District, Division 1, California. The trial court found under the authority of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th Shari DORFF, Plaintiff and Respondent, 348 (Iskanian) that plaintiff's waiver of claims in her v. representative capacity was unenforceable as applied to her