Trial Court Order Denying Defense Motion to Dismiss Labor Law Class Action and Compel Arbitration of Individual Claim based on Class Action Waiver in Unsigned Arbitration Agreement Proper because Class Action Waiver Unenforceable as Contrary to Public Policy California State Court Holds
Plaintiff, a delivery driver for a Domino’s Pizza owned by Western Pizza, filed a putative class action Western Pizza alleging labor law violations; the class action complaint asserted inter alia that defendant failed to reimburse its drivers for business expenses, and failed to pay minimum wage or provide itemized wage statements. Sanchez v. Western Pizza Enterprises, Inc., 172 Cal.App.4th 154 (Cal.App. 2009) [Slip Opn., at 2, 5]. Defense attorneys moved to dismiss the class action and compel arbitration, id., at 6. The parties were subject to an undated arbitration agreement that contained a class action waiver provision, id., at 3-4; the arbitration agreement was “not a mandatory condition of employment,” but it was governed by the Federal Arbitration Act (FAA), id., at 3. Further, though Western Pizza would pay all arbitration fees, “Except as otherwise required by law, each party shall bear its own attorney fees and costs.” Id. The arbitration agreement further provided that the arbitrator “shall be responsible for resolving any disputes over the interpretation or application of this Arbitration Agreement.” Id. With respect to the class action waiver, the agreement provided, “[T]he Arbitrator shall not consolidate or combine the resolution of any claim or dispute between the two Parties to this ADR Agreement with the resolution of any claim by any other party or parties, including but not limited to any employee of the Company. Nor shall the Arbitrator have the authority to certify a class under Federal Rule of Civil Procedure Rule 23, analogous state rules, or Arbitrator’s rules pertaining to class arbitration, and the Arbitrator shall not decide claims on behalf of any other party or parties.” Id., at 4. Plaintiff’s counsel argued that the class action arbitration waiver was unenforceable and that plaintiff would not agree to arbitration unless the class action waiver was stricken. Id., at 5. Defense counsel countered that the enforceability of the arbitration agreement, including the class action waiver, must be determined by the arbitrator. Id., at 6. The trial court denied the motion to compel arbitration, id., at 6-7. The California Court of Appeal affirmed.
After stating that the FAA does not preempt California law because it does not conflict with California law, see Sanchez, at 7-8, the Court of Appeal concluded that the enforceability of the arbitration agreement, including the class action waiver, was properly determined by the trial court rather than the arbitrator, id., at 8-11. The appellate court then turned to the enforceability of the class action arbitration waiver, and held that it was unenforceable as contrary to public policy. See id., at 11-35. We do not discuss the opinion in detail, as it follows the ground set forth in articles summarizing similar opinions that rely on Gentry v. Superior Court, 42 Cal.4th 443 (Cal. 2007) and Discover Bank v. Superior Court, 36 Cal.4th 148 (Cal. 2005). At bottom, the appellate court affirmed the trial court order denying the motion to dismiss the class action and compel arbitration. Id., at 36.