1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE LAINEZ, Case No. 4:23-cv-04421-KAW

8 Plaintiff, ORDER DENYING MOTION TO

REMAND; ORDER GRANTING

9 v. MOTION TO COMPEL

ARBITRATION; ORDER DENYING

10 WILHELM, LLC, MOTION FOR JUDGMENT ON THE

PLEADINGS

11 Defendant. Re: Dkt. Nos. 18, 31, 34 12

13 14 Defendant Wilhelm, LLC removed this case to federal court on August 25, 2023. On 15 December 11, 2023, Plaintiff Jose Lainez filed a motion to remand on the grounds that the Court 16 lacked subject matter jurisdiction. (Pl.’s Remand Mot., Dkt. No. 18). On February 15, 2024, 17 Defendant filed a motion for judgment on the pleadings (Def.’s J. Mot., Dkt. No. 31) and a motion 18 to compel arbitration. (Def.’s Arbitration Mot., Dkt. No. 34.) 19 Upon review of the moving papers, the Court finds this matter suitable for resolution 20 without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, 21 DENIES Plaintiff’s motion to remand, GRANTS Defendant’s motion to compel arbitration, and 22 DENIES Defendant’s motion for judgment on the pleadings without prejudice. 23 I. BACKGROUND 24 A. Factual Background 25 Defendant provides tree and debris removal services with locations in Petaluma, CA and 26 Oroville, CA. Plaintiff worked as a machine operator and driver. (First Am. Compl., “FAC,” Dkt. 27 No. 1 at 35 ¶ 10.) 1 situated and the general public, filed a class action complaint in Sonoma County Superior Court. 2 (Not. of Removal., Dkt. No. 1 ¶ 1.) On December 9, 2021, Plaintiff file an amended complaint 3 (“FAC”) via which he dismissed all class claims, leaving in controversy only the claims for PAGA 4 civil penalties. (Not. of Removal ¶ 2.) Therein, Plaintiff alleges that he and all other aggrieved 5 employees were not paid for all hours worked, including overtime hours worked, due to pre- and 6 post shift off-the-clock work, including but were not limited to gathering tools and materials, 7 cleaning the job site, filling out forms, receiving work instruction, and putting on personal 8 protective equipment (“PPE”). (FAC ¶ 11.) Instead, Defendant only paid for scheduled shifts, not 9 actual hours worked. Id. Plaintiff further alleges that employees were denied adequate meal and 10 rest periods, that Defendant failed to issue accurate, itemized wage statements, and that former 11 employees were owed waiting time penalties because they were not paid all monetary 12 compensation owed at the time of separation. (FAC ¶¶ 14, 17-19.) Wilhelm answered the FAC on 13 March 22, 2022. (Not. of Removal ¶ 3, Ex. C.) 14 Defendant contends that, “[t]throughout his pleadings, Plaintiff omitted the fact that he was 15 a member of a union and whose employment was governed by a collective bargaining agreement 16 (“CBA”) since January 1, 2020, and then onward until his separation from Wilhelm on July 13, 17 2020.” (Not. of Removal ¶ 5.) On July 26, 2023, in the process of gathering information requested 18 by Plaintiff, Defendant identified facts suggesting that Plaintiff was a member of a union. (Notice 19 of Removal ¶ 6.) Thereafter, Wilhelm conducted an investigation to confirm Plaintiff’s union 20 affiliation and the date on which Plaintiff was inducted to a union. Id. On August 25, 2023, 21 Wilhelm confirmed that Plaintiff was a unionized member of the Local Union 1245 of the 22 International Brotherhood of Electrical Workers, AFL-CIO since January 1, 2020. (Not. of 23 Removal ¶ 7; see Collective Bargaining Agreement, “CBA,” Not. of Removal, Ex. D.) On August 24 25, 2023, within 30 days of this discovery, Defendant removed this case to federal court. (See 25 generally Not. of Removal.) 26 B. Procedural Background 27 i. Motion to Remand 1 18.) On December 26, 2023, Defendant filed an opposition. (Def.’s Remand Opp’n, Dkt. No. 20.) 2 On January 2, 2024, Plaintiff filed a reply. (Pl.’s Remand Reply, Dkt. No. 22.) 3 ii. Motion to Compel Arbitration 4 On February 15, 2024, Defendant filed a motion to compel arbitration. (Def.’s MTCA 5 Mot., Dkt. No. 34.) On February 29, 2024, Plaintiff filed an opposition. (Pl.’s MTCA Opp’n, Dkt. 6 No. 40.) On March 7, 2024, Defendant filed a reply. (Def.’s MTCA Reply, Dkt. No. 45.) 7 iii. Motion for Judgment on the Pleadings 8 On February 15, 2024, Defendant filed a motion for judgment on the pleadings. (Dkt. Nos. 9 31-33.) On February 29, 2024, Plaintiff filed an opposition. (Dkt. No. 39.) On March 7, 2024, 10 Defendant filed a reply. (Dkt. No. 43.) 11 II. LEGAL STANDARDS 12 A. Motion to Remand 13 “The strong presumption against removal jurisdiction means that the defendant always has 14 the burden of establishing that removal is proper, and that the court resolves all ambiguity in favor 15 of remand to state court.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) 16 (quotations and citations omitted). Federal courts must “reject federal jurisdiction if there is any 17 doubt as to the right of removal in the first instance.” Grancare, LLC v. Thrower by & through 18 Mills, 889 F.3d 543, 550 (9th Cir. 2018) (quotations and citations omitted). 19 The “well-pleaded complaint rule” provides “federal jurisdiction exists only when a federal 20 question is present on the face of the plaintiff's properly pleaded complaint.” Caterpillar, Inc. v. 21 Williams, 482 U.S. 386, 392 (1987). “A corollary to the well-pleaded complaint rule is the 22 ‘complete preemption’ doctrine, which applies in cases in which ‘the preemptive force of a statute 23 is so extraordinary that it converts an ordinary state common-law complaint into one stating a 24 federal claim for purposes of the well-pleaded complaint rule.’” In re NOS Commc'ns, MDL No. 25 1357, 495 F.3d 1052, 1057 (9th Cir. 2007) (quoting Caterpillar, 482 U.S. at 393). 26 B. Motion to Compel Arbitration 27 Under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., arbitration agreements 1 for the revocation of a contract.” 9 U.S.C. §2. “Once the Court has determined that an arbitration 2 agreement relates to a transaction involving interstate commerce, thereby falling under the FAA, 3 the court’s only role is to determine whether a valid arbitration agreement exists and whether the 4 scope of the dispute falls within that agreement.” Ramirez v. Cintas Corp., No. C 04-00281 JSW, 5 2005 U.S. Dist. LEXIS 43531, at *8 (N.D. Cal. Nov. 2, 2005) (citing 9 U.S.C. § 4; Chiron Corp. 6 v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000)). 7 C. Motion for Judgment on the Pleadings 8 A motion for judgment on the pleadings may be brought at any time “[a]fter the pleadings 9 are closed,” but “earlier enough not to delay trial.” See Fed. R. Civ. P. 12(c). The standard applied 10 to decide a Rule 12(c) motion is the same as the standard used in a Rule 12(b) motion to dismiss 11 for failure to state a claim. See Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 12 (9th Cir. 2011). “[J]udgment on the pleadings is appropriate when, even if all allegations in the 13 complaint are true, the moving party is entitled to judgment as a matter of law.” Westlands Water 14 Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993). In deciding the motion, a court may 15 consider “(1) exhibits to the non-moving party's pleading, (2) documents that are referred to in the 16 non-moving party's pleading, or (3) facts that are included in materials that can be judicially 17 noticed.” See Yang v. Dar Al-Handash Consultants, 250 Fed. App'x 771, 772 (9th Cir. 2007). The 18 court need not automatically accept as true unreasonable inferences, unwarranted deductions of 19 fact, or conclusory legal allegations cast in the form of factual allegations. See W. Mining Council 20 v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). 21 III. DISCUSSION 22 The Court will address each of the pending motions below. 23 A. Motion to Remand 24 First, Plaintiff moves to remand this case to state court on the grounds that Defendant’s 25 removal was untimely, and, alternatively, that the claims are not preempted by the § 301 of the 26 Labor Management Relations Act (“LMRA”), such that the Court lacks subject matter 27 jurisdiction. (Pl.’s Remand Mot. at 1, 8.) The Court will address both arguments below. 1 i. Removal was timely. 2 Plaintiff argues that the case was not timely removed from state court, because, on January 3 20, 2021, Defendant produced numerous documents from Plaintiff’s personnel file that indicated 4 his union affiliation, including his application for union membership, employee change, notice 5 indicating a union wage increase, payroll deduction authorization, and a wage statement showing 6 that union dues were paid. (Pl.’s Remand Mot. at 9; Decl. of Un Kei Wu, “Wu Decl.,” Dkt. No. 7 18-1 ¶¶ 3, 5-8, Exs. A-D.) 8 In opposition, Defendant contends that the January 2021 document production is 9 irrelevant, and that it timely removed the lawsuit because neither of the two 30-day periods for 10 removal under 28 U.S.C. § 1446 apply. (Def.’s Remand Opp’n at 2-3, 6.) The fact that the FAC 11 was not clearly removable on its face is undisputed. (See Pl.’s Remand Mot. at 9.) 12 28 U.S.C. § 1446(b) provides two 30-day periods for removal. The first is when the 13 pleading is removable on its face. 28 U.S.C. § 1446(b)(1). The second is, when “the case stated 14 by the initial pleading is not removable, a notice of removal may be filed within 30 days after 15 receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, 16 order or other paper from which it may first be ascertained that the case is one which is or has 17 become removable.” 28 U.S.C. § 1446(b)(3); see also Harris v. Bankers Life & Cas. Co., 425 F.3d 18 689, 694 (9th Cir. 2005) (discussion of two removal periods). “If neither of these requirements 19 applies, the initial 30-day clock does not run –even where the removing party has possession of 20 documents that provide grounds for preemption.” Galeano v. Am. etc., Inc., No. 16-CV-0033-PJH, 21 2016 WL 908093, at *2 (N.D. Cal. Mar. 10, 2016) (citing Harris, 425 F.3d at 695-97). 22 Here, it is undisputed that the basis for removal does not appear on the face of the initial or 23 first amended complaints, and that there was no “other paper” filed or otherwise presented by 24 Plaintiff in the state court case that provided a basis for removal. See Galeano, 2016 WL 908093, 25 at *2 (emphasis added). Thus, Plaintiff’s argument that Defendant has known, based on 26 Defendant’s production of the personnel file, that Plaintiff was a union member is unavailing 27 because it ignores § 1446(b)(3)’s requirement that the plaintiff produce the document. Moreover, 1 enumerated, 30-day periods based on its own information. Roth v. CHA Hollywood Med. Ctr., 2 L.P., 720 F.3d 1121, 1125 (9th Cir. 2013). Indeed, as of March 30, 2022, and despite the prior 3 production of Plaintiff’s personnel file, neither Plaintiff’s counsel nor Defense counsel were aware 4 that Plaintiff was a member of a union. (3/30/22 Email, Decl. of Vincent R. Fisher, Dkt. No. 21 ¶ 5 4, Ex. A.) Thus, the Court finds that Defendant’s January 2021 document production did not 6 trigger a 30-day removal window, rendering removal timely. 7 ii. LMRA preemption 8 Defendant removed on the grounds that some of the predicate violations underlying 9 Plaintiff’s PAGA claims are preempted by § 301 of the LMRA, which provides “[s]uits for 10 violation of contracts between an employer and a labor organization… may be brought in any 11 district court of the United States.” Labor Management Relations Act, 1947, § 301(a), 29 U.S.C. § 12 185(a). “Although § 301 contains no express language of preemption, the Supreme Court has long 13 interpreted the LMRA as authorizing federal courts to create a uniform body of federal common 14 law to adjudicate disputes that arise out of labor contracts.” Curtis v. Irwin Indus., Inc., 913 F.3d 15 1146, 1151 (9th Cir. 2019) (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985)); see 16 also Teamsters v. Lucas Flour Co., 369 U.S. 95, 103–04 (1962). As a result, “a civil complaint 17 raising claims preempted by § 301 raises a federal question that can be removed to a federal 18 court.” Curtis, 913 F.3d at 1152. 19 In Burnside v. Kiewit Pacific Corp., the Ninth Circuit adopted a two-part test for analyzing 20 whether § 301 preempts a state law claim. 491 F.3d 1053, 1059 (9th Cir. 2007). Under the 21 Burnside test, courts first “ask whether the asserted cause of action involves a right [that] exists 22 solely as a result of the [Collective Bargaining Agreement].” Curtis, 913 F.3d at 1152 (quotation 23 marks and citations omitted). If the answer to the first question is yes, then “the claim is 24 preempted and [the] analysis ends there.” Id. at 1152-53 (quoting Burnside, 491 F.3d at 1059). If 25 the answer to the first question is no, then courts “proceed to the second step and ask whether a 26 plaintiff's state law right is substantially dependent on analysis of” the collective bargaining 27 agreement. Id. (quotations and citations omitted). To answer this question, courts consider 1 Bargaining Agreement].” Id. (quotations and citations omitted). 2 a. LMRA § 301 is a basis for removal. 3 As a threshold issue, Plaintiff contends that his PAGA claim is not preempted by the 4 LMRA, because he makes no mention of the CBA in the FAC, and statutory exemptions are 5 affirmative defenses that may not form the basis for LMRA preemption. (Pl.’s Remand Mot. at 6.) 6 Essentially, Plaintiff argues that he can artfully plead his claims to avoid LMRA preemption by 7 not mentioning the CBA. See id. Plaintiff is mistaken. In Curtis, the Ninth Circuit expressly 8 found that § 301 was an exception to the general rule that “federal preemption is a defense that 9 does not authorize removal to federal court, [because] § 301 has such ‘extraordinary pre-emptive 10 power’ that it ‘converts an ordinary state common law complaint into one stating a federal claim 11 for purposes of the well-pleaded complaint rule.’” Curtis, 913 F.3d at 1152 (quoting Metro. Life 12 Ins. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). “In other words, a civil 13 complaint raising claims preempted by § 301 raises a federal question that can be removed to a 14 federal court.” Curtis, 913 F.3d at 1152 (citing Metro. Life Ins., 481 U.S. at 65). 15 To the extent that Plaintiff argues that Curtis cannot be relied upon because it was decided 16 in the context of a motion to dismiss, he is mistaken. (Pl.’s Remand Reply at 3-4.) Indeed, Curtis 17 expressly states that removal is proper in this circumstance. Curtis, 913 F.3d at 1152 18 Finally, post-Curtis, a majority of courts in this circuit have found that an affirmative 19 defense of § 301 is sufficient to raise a federal question that can be removed even absent mention 20 of a CBA or a concession from the plaintiff that the CBA applied to them. See, e.g., Jimenez v. 21 Young's Mkt. Co., LLC, No. 21-CV-02410-EMC, 2021 WL 5999082, at *7 (N.D. Cal. Dec. 20, 22 2021) (collecting cases). 23 Thus, the Court finds that a defense of § 301 raises a removable federal question. 24 b. At least a portion of the PAGA claim is subject to preemption. 25 Next, the Court must determine whether the PAGA claim is subject to preemption. The 26 Court notes that the operative complaint does not specifically identify which California Labor 27 Code sections provide the basis for the PAGA claim. Instead, Plaintiff alleges that he seeks civil 1 meal period premium pay, rest period premium pay, failure to furnish accurate, itemized wage 2 statements, and waiting time penalties. (See FAC ¶ 22.) PAGA claims are derivative, so original 3 jurisdiction is determined by whether the LMRA preempts the predicate claims. Chatman v. 4 WeDriveU, Inc., No. 3:22-CV-04849-WHO, 2022 WL 15654244, at *12 (N.D. Cal. Oct. 28, 2022) 5 (citing Radcliff v. San Diego Gas & Elec. Co., 519 F. Supp. 3d 743, 748 (S.D. Cal. 2021)). 6 Here, Plaintiff worked for Defendant as both a non-unionized employee and as a unionized 7 employee, and he seeks to represent both groups of aggrieved employees in his PAGA claim. 8 (Pl.’s Remand Reply at 6; see also Not. of Removal ¶ 16.) Plaintiff’s PAGA claim includes 9 violations related to unpaid overtime compensation and meal periods, which are addressed in the 10 CBA. (CBA, Not. of Removal, Ex. D at § 3.1 (regular hours and meal periods), 3.3 (overtime), 3.8 11 (alternate work schedule permitting four, 10-hour days).) 12 1. Overtime and meal breaks 13 California Labor Code § 510 addresses the right to overtime compensation for hours 14 worked in excess of eight hours per day or 40 hours per week. Cal. Lab. Code § 510(a). California 15 Labor Code § 514, however, provides an exception for employees covered by collective 16 bargaining agreements, so long as the overtime premium is no less than 30% more than the state 17 minimum wage. Cal. Lab. Code § 514. Plaintiff’s CBA provides that all work performed outside 18 of regular hours be paid at double the regular straight-time rate of pay. (See CBA § 3.3.) Thus, the 19 CBA provision for overtime pay satisfied § 514, such that § 510 does not apply to Plaintiff. 20 California Labor Code § 512 generally requires an employer to provide a 30-minute meal 21 break to an employee working more than five hours per day, and a second meal break must be 22 provided if an employee works more than 10 hours per day. Cal. Lab. Code § 512(a). Subdivision 23 (a), however, does not apply to employees employed in a construction occupation or as a 24 commercial driver if they are (1) covered by collective bargaining agreements, and (2) the valid 25 CBA “provides for the wages, hours of work, and working conditions of employees, and expressly 26 provides for meal periods for those employees, final and binding arbitration of disputes 27 concerning application of its meal period provisions, premium wage rates for all overtime hours 1 wage rate.” Cal. Lab. Code § 512(e)(1)-(2). Here, the CBA specifies that the regular working 2 hours are 7:00 a.m. to 3:30 p.m., and that the unpaid meal period of 30 minutes will normally be 3 taken from 12:00 noon to 12:30 p.m., but that it “may be advance[d] or delayed an hour or less 4 when work must necessarily be performed during the regular lunch period. Such a change in the 5 lunch period shall not be deemed to require the payment of overtime.” (CBA § 3.1.) Thus, the 6 CBA satisfies the exception set forth in § 512(e), such that § 512(a) does not apply to Plaintiff. 7 Since it is undisputed that Plaintiff is covered by the CBA, any right to overtime or meal 8 period wages exist solely because of the CBA, the portion of the PAGA claim related to these 9 claims are, therefore, preempted under § 301. Chatman, 2022 WL 15654244, at *9 (quoting 10 Curtis, 913 F.3d at 1154). 11 2. Other alleged violations 12 Beyond a single conclusory statement, Defendant does not explain how the remaining 13 violations for rest periods, the requirement to furnish accurate itemized wage statements, and 14 waiting time penalties are covered by the CBA, or which provisions of the CBA preempt these 15 claims. (See Def.’s Remand Opp’n at 14.) Indeed, Defendant only fully addresses overtime and 16 meal periods. See id. at 12-13. To the extent that the CBA does not cover all alleged violations, 17 the PAGA claim would ultimately not be preempted concerning those underlying Labor Code 18 violations. See Chatman, 2022 WL 15654244, at *12; see also Sarmiento v. Sealy, Inc., 367 F. 19 Supp. 3d 1131, 1146 (N.D. Cal. 2019) (derivative PAGA claim not entirely preempted with 20 portion of non-preempted claim remanded to state court). Since the sufficiency of the PAGA 21 claim’s pleading will not be addressed at this juncture, the fact that at least some of the claim is 22 clearly preempted is sufficient to confer subject matter jurisdiction.1 23 Accordingly, the Court finds that the Court has subject matter jurisdiction under § 301, and 24 the motion to remand is denied. 25

26 1 The Court also notes that Plaintiff’s employment consisted of being non-union and being a union member, and he seeks to represent both union and non-union aggrieved employees, which may 27 complicate the scope of the preemption issue for the alleged overtime and meal period claims. (See 1 B. Motion to Compel Arbitration 2 Having denied the motion to remand, the Court will now address the motion to compel 3 arbitration. 4 i. Operative Arbitration Agreement 5 On October 7, 2019, Plaintiff signed an arbitration agreement as part of his onboarding 6 process. (Agreement, Decl. of Jon Baber, “Baber Decl.,” Dkt. No. 34-2 ¶ 4, Ex. A; Decl. of Jose 7 Lainez, “Lainez Decl.,” Dkt. No. 40-1 ¶ 4.) The document was titled “Agreement to Arbitrate 8 Disputes” and was two pages long. (See Agreement at 1.) The Agreement bound the parties to 9 arbitration pursuant to the FAA. Id. The Agreement covered any dispute arising from, or relating 10 to, Plaintiff’s employment. Id. The Agreement provided for the selection of a neutral arbitrator to 11 whom the parties mutually agree, it provided for reasonable discovery, and it required the 12 arbitrator to issue a written award. Id. at 1-2. Finally, the Agreement did not contain any language 13 limiting the scope of remedies available to Plaintiff, and it required Defendant to pay all fees and 14 costs unique to arbitration. Id. at 2. 15 Plaintiff does not dispute that the arbitration agreement relates to a transaction involving 16 interstate commerce, and is, therefore, governed by the FAA. Rather, he argues that the agreement 17 is invalid on the grounds that it is unconscionable. (Pl.’s MTCA Opp’n at 2.) 18 Thus, the Court finds that the Agreement is governed by the FAA. 19 ii. Unconscionability 20 Courts apply state contract law to determine the enforceability of an arbitration agreement. 21 Pokorny v. Quixtar, 601 F.3d 987, 994 (9th Cir. 2010). Under California law, “a contractual 22 provision is unenforceable if it is both procedurally and substantively unconscionable.” Kilgore v. 23 KeyBank, Nat'l Ass'n, 718 F.3d 1052, 1058 (9th Cir. 2013) (citing Armendariz v. Found. Health 24 Psychcare Servs., Inc., 24 Cal. 4th 83, 89, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000)). These two 25 prongs operate on a sliding scale: the lesser the procedural unconscionability, the greater 26 substantive unconscionability must be shown, and vice versa. Armendariz, 24 Cal. 4th at 89, 99 27 Cal.Rptr.2d 745, 6 P.3d 669. If the Court determines that any contractual provisions are 1 from the rest of the contract. Armendariz, 24 Cal. 4th at 121–122, 99 Cal.Rptr.2d 745, 6 P.3d 669. 2 a. Procedural Unconscionability 3 “The procedural element of unconscionability focuses on oppression or surprise due to 4 unequal bargaining power.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1260 (9th Cir. 2017) 5 (internal quotation omitted). 6 Here, there can be no real dispute that there is at least some procedural unconscionability. 7 Plaintiff was required to sign the Agreement as a condition of his employment, making it a 8 contract of adhesion. (See Pl.’s MTCA Opp’n at 4; Dotson v. Amgen, Inc., 181 Cal. App. 4th 975, 9 981 (2010) (finding procedural unconscionability when an offer was presented on a take-it-or- 10 leave-it basis).) 11 Additionally, Plaintiff argues that “despite Defendant’s representatives [having] 12 communicated with Plaintiff in Spanish, the arbitration agreement and other documents were 13 solely in English without providing Plaintiff any translation to Spanish.” (Pl.’s MTCA Opp’n at 4 14 (Lainez Decl. ¶¶ 5-6).) In support of his opposition, Plaintiff provides a sworn declaration that is 15 entirely in English without any indication of language translation, and merely states that Plaintiff 16 is “only fluent in Spanish.” (Lainez Decl. ¶ 5.) Nowhere does it address the extent of his English 17 proficiency. Even so, Plaintiff executed an English-language declaration under penalty of perjury 18 without using court document translation protocols. Thus, the Court must presume that Plaintiff is 19 proficient enough in English to understand and execute the detailed, sworn declaration. 20 Regardless, “[g]enerally, a party may not avoid enforcement of an arbitration provision because 21 the party has limited proficiency in the English language.” Caballero v. Premier Care Simi Valley 22 LLC, 69 Cal. App. 5th 512, 518, 284 Cal. Rptr. 3d 560, 565 (2021). “If a party does not speak or 23 understand English sufficiently to comprehend a contract in English, it is incumbent upon the 24 party to have it read or explained to him or her.” Id. at 518-19 (citing Ramos v. Westlake Servs. 25 LLC, 242 Cal. App. 4th 674, 687, 195 Cal. Rptr. 3d 34, 44 (2015)). An exception to this general 26 rule is when a party was fraudulently induced to sign the contract. Id. at 519. This exception, 27 however, is inapplicable because Plaintiff does not contend that Defendant defrauded him. See id. 1 what he was agreeing to. (See id.; Pl.’s MTCA Opp’n at 4.) Ultimately, Plaintiff was responsible 2 for informing Defendant that he did not understand the Agreement, and he does not cite to any 3 legal authority that Defendant had an initial burden of assessing whether he understood the 4 English version. See Caballero, 69 Cal. App. 5th at 519 (employer had no such burden). As it is 5 incumbent on the individual with limited English proficiency to affirmatively seek out an 6 explanation if he did not understand the Agreement, Plaintiff’s “decision to sign a document he 7 could not read is not a basis for avoiding an arbitration agreement.” See id. (citing Brookwood v. 8 Bank of America (1996) 45 Cal. App. 4th 1667, 1674 (1996) (“A party cannot use his own lack of 9 diligence to avoid an arbitration agreement.”).) 10 Thus, while Plaintiff’s purported limited English proficiency does not give rise to any 11 procedural unconscionability, the Court finds that the fact that he was required to sign the 12 Agreement as part of the onboarding process confers some degree of procedural 13 unconscionability, because it was adhesive. 14 b. Substantive Unconscionability 15 The Court, however, finds that there is no substantive unconscionability because the 16 arbitration agreement does not require the waiver of Plaintiff’s representative PAGA claim. 17 “Substantive unconscionability pertains to the fairness of an agreement's actual terms and to 18 assessments of whether they are overly harsh or one-sided.” Pinnacle Museum Tower Ass'n v. 19 Pinnacle Market Dev. (US), LLC, 55 Cal. 4th 223, 246 (2012). Terms are unconscionable if they 20 are “overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one- 21 sided.” Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899, 910-11 (2015) (internal quotations 22 omitted). Thus, the court must look for terms that are “unreasonably favorable to the more 23 powerful party.” Id. at 911 (internal quotation omitted). 24 Here, Plaintiff argues that the arbitration agreement contains a representative PAGA 25 waiver, which is inherently unconscionable. (Pl.’s MTCA Opp’n at 6.) Plaintiff is mistaken, 26 because no such waiver exists. Indeed, the arbitration agreement merely states that “The parties 27 also agree that, to the extent permitted by law, they will be precluded from asserting in arbitration, 1 Since waivers of representative PAGA claims are not permitted by California law as a matter of 2 || public policy, no such right has been waived. See Adolph v. Uber Techs., Inc., 14 Cal. 5th 1104, 3 1117, 532 P.3d 682, 688 (2023) (“categorical waiver of the right to bring a PAGA action is 4 unenforceable”). Thus, there is no substantive unconscionability. 5 iii. Case is stayed pending arbitration. 6 In light of the foregoing, Defendant’s motion to compel arbitration of Plaintiffs individual 7 || claim is granted, and the representative component of Plaintiff's PAGA claim and the instant 8 || proceedings are stayed pending the resolution of the arbitration. 9 U.S.C. § 3. 9 C. Motion for Judgment on the Pleadings 10 Since the Court has granted the motion to compel arbitration, the Court denies the pending 11 motion for judgment on the pleadings without prejudice. The Court finds that the sufficiency of 12 || the pleadings is best resolved during the forthcoming arbitration proceedings, so Defendant is 5 13 permitted to refile a Rule 12(c) motion before the arbitrator. 14 IV. CONCLUSION 15 For the reasons set forth above, Plaintiff's motion to remand (Dkt. No. 18) is DENIED and a 16 || Defendant’s motion to compel arbitration (Dkt. No. 34) is GRANTED. The Court STAYS the 3 17 proceedings in the instant case pending resolution of the arbitration, as required by 9 U.S.C. § 3. 18 The parties shall provide a joint status report every 180 days from the date of this order, or within 19 30 days of the completion of the arbitration, whichever is sooner. 20 Finally, the Court DENIES Defendant’s motion for judgment on the pleadings (Dkt. No. 21 31) without prejudice. 22 IT IS SO ORDERED. 23 Dated: September 25, 2024 :

25 United States Magistrate Judge 26 27 28