1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 GARY ALAN KITTRELL, Case No. 25-cv-02432-MMC

7 Plaintiff, ORDER GRANTING DEFENDANT'S 8 v. MOTION TO COMPEL ARBITRATION

9 USA DEBUSK LLC, Defendant. 10

11 12 Before the Court is defendant USA Debusk LLC's ("USA Debusk") Motion to 13 Compel Arbitration, filed March 21, 2025. Plaintiff Gary Alan Kittrell ("Kittrell") has filed 14 opposition, to which USA Debusk has replied. Having read and considered the papers 15 filed in support of and in opposition to the motion, the Court rules as follows.1 16 BACKGROUND 17 In his Complaint, filed February 11, 2025, Kittrell alleges he has been employed by 18 USA Debusk, from October 2019 to the present, as a "truck driver." (See Compl. ¶ 4.)2 19 According to Kittrell, he and "similarly situated employees" have not been paid "for all 20 hours worked at the legal minimum wage" (see Compl. ¶¶ 13, 16), have not been paid 21 "wages for overtime hours at the overtime rate of pay" or, alternatively, "at the proper 22 overtime rate of pay" (see Compl. ¶ 18), have not received all required "meal periods" 23 and "rest periods" or the "premium wages" due for a missed meal or rest period (see 24 Compl. ¶¶ 27, 33), have not been provided with "sick pay wages" (see Compl. ¶ 39), and 25 1 By order filed April 17, 2025, the Court took the matter under submission. 26 2 In a declaration submitted in opposition to the instant motion, Kittrell clarifies that 27 he started working for USA Debusk in January 2019, that he resigned in October 2019, 1 have not received "accurate wage statements" (see Compl. ¶ 44). Based on these 2 allegations, Kittrell asserts seven Causes of Action arising under California law, which 3 claims he seeks to bring on his own behalf and on behalf of all persons employed by 4 USA Debusk as "non-exempt employees." (See Compl. ¶ 46.) 5 DISCUSSION 6 USA Debusk argues that, under the terms of an "Arbitration Agreement" (see 7 Pehle Decl. Ex. A), Kittrell's individual claims are subject to arbitration and the claims he 8 has asserted on behalf of a putative class must be dismissed. The parties dispute 9 whether the Arbitration Agreement is enforceable under the Federal Arbitration Act 10 ("FAA"), or, alternatively, under the California Arbitration Act ("CAA"). 11 The Court first considers whether Kittrell's claims are subject to arbitration under 12 the FAA. 13 A. FAA 14 "The FAA's coverage provision, § 2, provides that '[a] written provision in . . . a 15 contract evidencing a transaction involving commerce to settle by arbitration a 16 controversy thereafter arising out of such contract or transaction . . . shall be valid, 17 irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the 18 revocation of any contract'." Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 111-12 19 (2001) (quoting 9 U.S.C. § 2). A district court's role under the FAA is to determine 20 "whether a valid agreement to arbitrate exists," and, if so, "whether the agreement 21 encompasses the dispute at issue." See Chiron Corp. v. Ortho Diagnostic Systems, Inc., 22 207 F.3d 1126, 1130 (9th Cir. 2000). 23 Here, USA Debusk offers evidence that Kittrell, on June 9, 2020, signed the 24 Arbitration Agreement, as did Jerrod Pehle ("Pehle"), USA Debusk's "Terminal Manager" 25 at its facility in Stockton, California. (See Pehle Decl. ¶¶ 7-8, Ex. A.) Although Kittrell, in 26 his declaration, states he was told to "come in to sign the new hire paperwork" and 27 "do[es] not recall signing any arbitration agreement" (see Kittrell Decl. ¶¶ 3, 5), he does 1 arbitration exists. See Iyere v. Wise Auto Group, 87 Cal. App. 5th 747, 756 (2023) 2 (holding, where employer "submitted copies of the [arbitration] agreement bearing 3 plaintiffs' apparent handwritten signatures" and "no plaintiff declared that he had not 4 signed the agreement," plaintiffs' statements that they did "not recall ever reading or 5 signing" the agreement was insufficient to create "a factual dispute as to whether 6 plaintiffs signed the agreement") (emphasis in original). 7 Further, as claims subject to the provisions of the Arbitration Agreement include 8 "all claims . . . Employee may have against the Company . . . relating to, resulting from, or 9 in any way arising out of Employee's employment relationship with Company . . . to the 10 extent permitted by law" (see Pehle Decl. Ex. A ¶ A),3 the Arbitration Agreement 11 encompasses the claims asserted in the instant Complaint, as each of those claims 12 arises out of Kittrell's employment with USA Debusk. 13 Under § 2 of the FAA, arbitration agreements in "contract[s] evidencing a 14 transaction involving commerce" are generally enforceable, see 9 U.S.C. § 2, which 15 contracts "include employment contracts," see Rogers v. Royal Caribbean Cruise Line, 16 547 F.3d 1148, 1154 (2008). Under § 1 of the FAA, however, some types of employment 17 contracts, namely "contracts of employment of seamen, railroad employees, or any other 18 class of workers engaged in foreign or interstate commerce," see 9 U.S.C. § 1, are 19 "exempt[ed] from [§ 2's] ambit," see Southwest Airlines Co. v. Saxon, 596 U.S. 450, 453 20 (2022). Here, Kittrell, relying on § 1 of the FAA, argues his contract of employment is 21 exempt from coverage under § 2 of the FAA 22 The term "any other class of workers engaged in foreign or interstate commerce" 23 means "transportation workers," see Circuit City Stores, 532 U.S. at 119-121, and 24 "transportation workers" are defined as those that "play a direct and necessary role in the 25 free flow of goods across borders," or, "[p]ut another way," are "actively engaged in 26

27 3 The introductory sentence of the Arbitration Agreement defines Kittrell as 1 transportation of those goods across borders via the channels of foreign or interstate 2 commerce," see Saxon, 596 U.S. at 458 (internal quotations and citation omitted). Such 3 "transportation workers," however, do not necessarily have to "cross state lines." See 4 Rittmann v. Amazon.com, Inc., 971 F.3d 904, 915 (9th Cir. 2020). For example, a "class 5 of workers that loads or unloads cargo on or off airplanes bound for a different State or 6 country is 'engaged in foreign or interstate commerce'," see Saxon, 596 U.S. at 459 7 (quoting 9 U.S.C. § 1), as are workers that "transport packages through to the conclusion 8 of their journeys in interstate and foreign commerce," even though such workers may 9 transport goods "wholly within a state," see Rittmann, 971 F.3d at 915-16. 10 To determine whether a plaintiff is a member of a "class of workers engaged in 11 foreign or interstate commerce," see 9 U.S.C. § 1, the first step is to determine "the 12 actual work that the members of the class, as a whole, typically carry out," see Saxon, 13 596 U.S. at 456. Here, Kittrell, whose job title is "Pneumatic Vacuum Truck Operator" 14 (see Kittrell Decl. ¶ 2), works for USA DeBusk at its "terminal facility" in Stockton, 15 California (see Pehle Decl. ¶¶ 4-5), and is assigned to perform tasks at "oil refineries" in 16 California (see Kittrell Decl. ¶¶ 13-14).4 In his declaration, Kittrell states he moves 17 "catalyst material used in the oil refinement process" (see Kittrell Decl. ¶ 11), specifically, 18 that he transports catalyst arriving in California, from either abroad or another state, to an 19 oil refinery in California (see id. ¶¶ 12, 15), where, using a "Pneumatic Vacuum," he loads 20 the catalyst into a "silo" at the oil refinery (see id. ¶¶ 13, 15), and that he thereafter 21 transports the "spent catalyst" from the silo to other locations, including locations outside 22 of California (see id. ¶¶ 14, 17). These activities are described in more detail below. 23 First, Kittrell states, "[s]hipping containers" arrive at "[USA Debusk's] facility from 24 the dock," that such containers hold "catalyst and other materials used in the oil 25

26 4 According to USA Debusk's Terminal Manager, USA Debusk provides "vacuum services," as well as other services, to "the downstream energy sector." (See Pehle 27 Decl. ¶ 3.) The Court thus understands the oil refineries where Kittrell performs work to 1 production or similar industry," that such goods "originate[ ] from China and all over the 2 world," that he operates a "forklift to remove large canvas bags of catalyst and other 3 material from the shipping containers," that said bags are "loaded into [a] trailer" that is 4 "attached to his truck," that he drives the bags to oil refineries, and that he "load[s]" the 5 catalyst into silos at the refineries. (See id. ¶ 15; see also id. at ¶ 13.)5 6 Second, Kittrell states that "catalyst materials" alternatively arrive by railcars at 7 "rail spurs" located at the oil refineries where he works, that the "majority" of such catalyst 8 is supplied by Equilibrium Catalyst, Inc. ("ECI"), that it is "common knowledge" in "the 9 industry" in which Kittrell works that ECI is located in Texas, that he unloads such catalyst 10 from the railcars into the trailer attached to his truck, and that he then drives the catalyst 11 to silos at the refineries. (See id. ¶¶ 12-13.) 12 Third, Kittrell states that, once the catalyst is used, he "load[s]" the "spent catalyst 13 into the trailer" and "transport[s]" it to "outside locations," which locations are the "Nevada 14 Cement Company in Fernley, Nevada," the "Clean Harbors Landfill Facility in 15 Buttonwillow, California, or "a local railcar to be taken to a final destination out of state, 16 typically ECI in Texas." (See id. ¶¶ 14, 16.) 17 Lastly, Kittrell states that there are "several other drivers at any given time 18 employed by [USA Debusk]" who are "performing similar duties to [Kittrell]," namely, 19 "loading and unloading catalyst and other materials and transporting them to and from 20 silos at oil refineries." (See id. ¶ 18.) 21 USA Debusk has not offered evidence to contradict Kittrell's factual assertions 22 describing his work, nor evidence to contradict his statement that other truck drivers 23 employed by USA Debusk perform similar work, and, consequently, the Court finds 24

25 5 Although USA Debusk objects to Kittrell's statement that the goods originate from outside California, Kittrell has explained that his knowledge comes from "invoices" he 26 receives as "part of [his] job." (See id. ¶ 15.) Further, as the goods arrive at a "dock" (see id.), which the Court understands to be a reference to a waterside structure that 27 receives ships for loading and unloading, a reasonable inference can be drawn that the 1 Kittrell's factual assertions describe "the actual work that the members of the class, as a 2 whole, typically carry out." See Saxon, 596 U.S. at 456. 3 The next issue is whether the class of drivers in which Kittrell is a member "is 4 'engaged in foreign or interstate commerce'." See id. (quoting 9 U.S.C. § 1). The Court 5 finds the subject class of drivers is so engaged. Although not all of the work described by 6 Kittrell constitutes the transportation of goods in interstate or foreign commerce, a 7 significant amount of the work does. In particular, when the class of drivers transports 8 catalyst arriving by shipping containers from outside California to the oil refineries where 9 it will be used in California, the class is "part of a continuous interstate [or foreign] 10 transportation." See Rittmann, 971 F.3d at 916. Further, when the class transports spent 11 catalyst from oil refineries in California to intended recipients located outside of California, 12 the class is, again, engaged in interstate commerce. 13 Accordingly, the Court finds Kittrell has made a sufficient showing that he is a 14 transportation worker and, consequently, is exempt. 15 B. CAA 16 The Court next determines whether, alternatively, USA Debusk is entitled to an 17 order under the CAA compelling arbitration and dismissing the putative class claims. 18 Under the CAA, arbitration agreements are "valid, enforceable and irrevocable, 19 save upon such grounds as exist for the revocation of any contract." See Cal. Code Civ. 20 Proc. § 1281. "A party seeking to compel arbitration of a dispute bears the burden of 21 proving the existence of an arbitration agreement, and the party opposing arbitration 22 bears the burden of proving any defense." Jenks v. DLA Piper Rudnick Gray Cary US 23 LLC, 243 Cal. App. 4th 1, 8 (2015) (internal quotation and citation omitted). 24 Here, as discussed above, an arbitration agreement exists and covers the claims 25 asserted in the Complaint. The Court thus turns to Kittrell's arguments that the Arbitration 26 Agreement is not enforceable under the CAA, namely, his arguments that mandatory 27 arbitration agreements are not enforceable, that wage claims categorically are not subject 1 argument that a class action waiver contained in the Arbitration Agreement is invalid.6 2 1. Enforceability of Mandatory Arbitration Agreements 3 Under § 432.6 of the California Labor Code, "[a] person shall not, as a condition of 4 employment, or the receipt of any employment-related benefit, require any applicant for 5 employment or any employee to waive any right, forum, or procedure for a violation of 6 [the Labor Code], including the right to file and pursue a civil action or complaint." See 7 Cal. Lab. Code § 432.6(a). A person who violates § 432.6(a) is "guilty of a 8 misdemeanor," see Cal. Lab. Code § 433, and can be held civilly liable under the 9 California Fair Employment and Housing Act, see Cal. Gov't Code § 12953. 10 The parties disagree as to whether an arbitration agreement that falls within the 11 scope of § 432.6 is unenforceable.7 The Court finds the statute does not address 12 enforceability, and adopts the following analysis set forth in Bahamonde v. Amazon.com 13 Services LLC, 2025 WL 2021801 (N.D. Cal. July 18, 2025):

14 California Labor Code § 432.6 prohibits an employer from requiring "as a condition of employment, continued employment, or the receipt of any 15 employment-related benefit," that a person "waive any right, forum, or procedure for a violation of any provision of the California Fair Employment 16 and Housing Act" or the Labor Code. But § 432.6 "does not affect the enforceability of the resultant agreement to arbitrate." Chamber of Com. of 17 the United States of Am. v. Bonta, 62 F.4th 473, 480 (9th Cir. 2023). In Bonta, California acknowledged and the Ninth Circuit reiterated that the 18 statute does not on its own make arbitration agreements unenforceable; instead, it criminalizes and subjects employers to civil penalties for forcing 19 employees to enter certain arbitration agreements. Id.; see also id. at 487 20 6 The CAA, unlike the FAA, does not contain an exemption for transportation 21 workers' contracts of employment. See Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83, 98 (2000) (holding CAA "contains no exemption for 22 employment contracts"). 23 7 A triable issue exists as to whether Kittrell was required, as a condition of employment, to enter into the Arbitration Agreement. Kittrell, in his declaration, states he 24 was told by Pehle, his supervisor, that he "needed to sign" the Arbitration Agreement "if [he] wanted to start working" (see Kittrell Decl. ¶ 4), whereas Pehle, in his declaration, 25 states that the Arbitration Agreement is "optional," that he "explained" the Agreement to Kittrell and "allowed him the time to read and consider the document and ask any 26 questions," and that Kittrell was "encouraged to take the time to consult with an attorney" but "decided to accept the Arbitration Agreement" (see Pehle Decl. ¶¶ 9-10). For 27 purposes of the instant motion only, the Court assumes Kittrell was required, as a 1 ("California argues that because [§ 432.6] regulates the conduct of employers before an arbitration agreement is formed, rather than affecting 2 the validity or enforceability of the executed arbitration agreement itself, it does not conflict with the FAA.") (emphasis added). Accordingly, § 432.6 3 does not preclude enforcement of the arbitration agreement. 4 See Bahamonde, 2025 WL 2021801, at *6 (alteration in original) (holding arbitration 5 agreement subject to CAA not enforceable by reason of § 432.6). 6 Accordingly, the Court finds § 432.6 does not render the Arbitration Agreement 7 unenforceable. 8 2. Wage Claims Not Subject to Arbitration 9 Kittrell, citing § 229 of the California Labor Code, contends none of his claims can 10 be compelled to arbitration. 11 Under § 229, "[a]ctions to enforce the provisions of this article for the collection of 12 due and unpaid wages claimed by an individual may be maintained without regard to the 13 existence of any private agreement to arbitrate," see Cal. Lab. Code § 229, "this article" 14 being a reference to "sections 200 through 244" of the Labor Code, see Lane v. Francis 15 Capital Mgmt. LLC, 224 Cal. App. 4th 676, 684 (2014). 16 Only three of Kittrell's seven Causes of Action are brought under the subject 17 article, specifically, the Third Cause of Action, asserting, under § 226.7, a failure to 18 provide meal periods, the Fourth Cause of Action, asserting, under § 226.7, a failure to 19 provide rest periods, and the Sixth Cause of Action, asserting, under § 226, a failure to 20 provide accurate itemized wage statements. Under California law, none of those three 21 claims seek "the collection of due and unpaid wages." See id. (holding § 229 is 22 inapplicable to claims alleging failure to provide meal or rest periods and claims alleging 23 failure to properly itemize wage statements; finding said claims are not "action[s] for the 24 'collection of due and unpaid wages'").8 25

26 8 Although Kittrell argues Lane was overruled by Naranjo v. Spectrum Security Services, Inc., 13 Cal. 5th 93 (2022), the Ninth Circuit has disagreed. See Morales v. 27 United States Dist. Court, 2024 WL 3565262, at *3 (9th Cir. July 29, 2024) (finding 1 Accordingly, the Court finds § 229 is not applicable to any of Kittrell's claims. 2 3. Unconscionability 3 "Under California law, courts may refuse to enforce any contract found to have 4 been unconscionable at the time it was made, or may limit the application of any 5 unconscionable clause." AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 340 (2011) 6 (hereinafter, "Concepcion") (internal quotation and citation omitted). "A finding of 7 unconscionability requires a procedural and a substantive element, the former focusing 8 on oppression or surprise due to unequal bargaining power, the latter on overly harsh or 9 one-sided results." Id. (internal quotation and citation omitted). 10 a. Procedural Unconscionability 11 Procedural unconscionability is present where "a party has no meaningful 12 opportunity to negotiate terms or the contract is presented on a take it or leave it basis." 13 See Wherry v. Award, Inc., 192 Cal. App. 4th 1242, 1246 (2011). 14 Here, although, as noted, a triable issue exists as to whether the Arbitration 15 Agreement was a condition of Kittrell's employment or was optional, see supra, n.7, the 16 Court assumes for purposes of the instant motion that the Arbitration Agreement was a 17 condition of Kittrell's employment. In light of such assumption, the "procedural element of 18 an unconscionable contract" is established. See Little v. Auto Stiegler, Inc., 29 Cal. 4th 19 1064, 1071 (2003) (holding "procedural element" established where employer had 20 "imposed on [employee] an adhesive arbitration agreement"; observing "few employees 21 are in a position to refuse a job because of an arbitration requirement"). 22 b. Substantive Unconscionability 23 Kittrell asserts the Arbitration Agreement contains six unconscionable provisions, 24 which the Court considers, in turn. 25 (1) Indefinite Duration 26 The Arbitration Agreement provides that it "shall continue during the term of 27 employment and thereafter regarding any employment-related disputes." (See Pehle 1 is unconscionable because it is "indefinite in duration." (See Pl.'s Opp. at 12-13.) In 2 support of such argument, Kittrell cites Cook v. University of Southern California, 102 Cal. 3 App. 5th 312 (2024), in which the California Court of Appeal found an arbitration 4 agreement providing said agreement "shall survive the termination of Employee's 5 employment" was unconscionable. See id. at 325. 6 Contrary to Kittrell's argument, however, Cook cannot be interpreted as holding all 7 arbitration agreements between an employer and employee are unconscionable if they 8 survive termination of the employment. Rather, in Cook, the agreement required the 9 employee to arbitrate any claim she might have against her employer, as well as against 10 multiple other entities and individuals associated with the employer, irrespective of 11 whether the claims against her employer or any other entities or individuals bore any 12 relationship to her employment. See id. at 317. As the trial court observed, in a decision 13 the Court of Appeal characterized as "well-reasoned," the agreement would apply "for the 14 rest of [the employee's] life." See id. at 318. 15 Here, by contrast, the Arbitration Agreement, although potentially lasting for a 16 period of time following the termination of Kittrell's employment, cannot be characterized 17 as indefinite in duration, as its coverage is limited to issues relating to Kittrell's 18 employment, which would end on a given date. 19 Accordingly, the Arbitration Agreement is not substantively unconscionable under 20 a theory that it is of indefinite duration. 21 (2) Lack of Mutuality re: Claims Against Non-Employers 22 The Arbitration Agreement requires "final and binding arbitration of all claims that 23 Company may have against Employee or that Employee may have against the Company 24 or against its officers, directors, partners, employees, agents, pension or benefit plans, 25 administrators, or fiduciaries, clients or any subsidiary or affiliated company or 26 corporation relating to, resulting from, or in any way arising out of Employee's 27 employment relationship with Company . . . to the extent permitted by law." (See Pehle 1 Kittrell challenges, for lack of mutuality, the requirement that he must submit to 2 arbitration any claim arising out of his employment against one of the identified 3 individuals or entities other than USA Debusk. 4 As with the argument made above, Kittrell relies on Cook, in which, as noted, the 5 arbitration agreement, without any end date, required the employee to submit to 6 arbitration any claim she may have against the employer and multiple other entities and 7 individuals associated with the employer, irrespective of whether those claims bore any 8 relationship to her employment. Under those circumstances, Cook found unconscionable 9 a provision requiring the employee alone to submit to arbitration any claims she might 10 have against the numerous non-employer entities and individuals. In particular, the Court 11 of Appeal stated, "[n]o explanation is offered as to why [the plaintiff] should be required to 12 give up the ability to ever bring claims in court against [an] employee [of the defendant] 13 that are unrelated to [the employer] or her employment there." See Cook, 102 Cal. App. 14 5th at 327. 15 Although Kittrell asserts the holding in Cook applies where an arbitration 16 agreement is limited in scope to claims arising out the employment relationship, Kittrell 17 cites no authority for such proposition. Indeed, the one court that has considered such 18 an argument has rejected it. See Johnston v. Sensei AG Holdings, 2025 WL 703258, at 19 *7 (Cal. Ct. App. March 5, 2025) (finding holding in Cook inapplicable to agreement 20 limited to "employment-related claims"; explaining that, although it is "theoretically 'one- 21 sided' to require [the] plaintiff to arbitrate employment-related claims against [the] 22 defendant's officers, directors, and the like, while not specifically requiring them (as they 23 are not signatories) to arbitrate disputes relating to [the] plaintiff's employment, the 24 practical effect appears to be nonexistent").9 By contrast, courts that have applied the 25

26 9 Although an unpublished opinion of the California Court of Appeal is not "precedential," a district court may consider it when determining California law. See 27 Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 1 holding in Cook have, like Cook, involved an arbitration agreement that was of "indefinite" 2 duration and required only the employee to submit to arbitration "any" claims the 3 employee ever might have against a large number of non-signatories. See Sandler v. 4 Modernizing Medicine, Inc., 2024 WL 4469217, at *7-8 (S.D. Cal. October 9, 2024); 5 Cocom v. ABM Aviation, Inc., 2024 WL 5701894, at *6-*9 (C.D. Cal. December 27, 6 2024); Bahamonde, 2025 WL 2021801, at *8. 7 Accordingly, the Court finds the Arbitration Agreement is not substantively 8 unconscionable under a theory of lack of mutuality. 9 (3) Applicable Arbitration Rules 10 The Arbitration Agreement states that, "[e]xcept as otherwise provided in this 11 Agreement, the arbitration will be conducted according to the then applicable arbitration 12 rules of AAA [American Arbitration Association] for the arbitration of employment 13 disputes[;] a copy of these rules can be found at www.adr.org." (See Pehle Decl. Ex. A 14 ¶ C.) 15 Kittrell argues the term "the then applicable arbitration rules" renders the above- 16 quoted provision unconscionable, under the theory that an employee, at the time he 17 entered into the Arbitration Agreement, would not know what the rules would be if he 18 were to submit a claim in arbitration at some point in the future. 19 In support of his argument, Kittrell cites Hasty v. American Automobile Ass'n, 98 20 Cal. App. 5th 1041 (2023). Although the Court of Appeals in the cited case did observe 21 that, given that the agreement at issue therein provided that the arbitration would be 22 conducted under the "rules of JAMS then in effect," an employee would not know in 23 advance the rules that would apply to "a dispute aris[ing] in the future," see id. at 1061, 24 the Court of Appeal made no finding that the provision was unconscionable, noting no 25 issue had been raised as to said provision. Moreover, there is no dispute that AAA is 26 commonly designated as the entity by which the arbitration will be conducted nor is there 27 any dispute that AAA arbitrations will need to be conducted in accordance with AAA's 1 challenged by Kittrell does no more than confirm what appears to be a long-standing, 2 standard provision in AAA's Rules. See AAA Employment/Workplace Arbitration Rule R- 3 1(a) (providing "[t]hese Rules and any amendment to them shall apply in the form in 4 effect at the time the administrative requirements are met for a Demand for Arbitration . . . 5 received by the AAA");10 see also Lucas v. Gund, Inc., 450 F. Supp. 2d 1125, 1132 (C.D. 6 Cal. 2006) (noting same rule applicable in 2006). 7 Additionally, Kittrell fails to explain why the provision he challenges is 8 unconscionable as lacking "mutuality," i.e., being "one-sided," an issue the Court of 9 Appeal in Hasty deemed the "paramount consideration in assessing substantive 10 unconscionability," see Hasty, 98 Cal. App. 5th at 1059 (internal quotation, citation, and 11 alteration omitted), as, at whatever time in the future a dispute involving Kittrell's 12 employment might arise, both parties, by clicking the hyperlink in the Arbitration 13 Agreement, would be aware of the rules then in effect. 14 Accordingly, the Arbitration Agreement is not substantively unconscionable by 15 reason of its inclusion of the term "the then applicable arbitration rules." 16 (4) Limitations on Recovery of Attorney's Fees 17 The Arbitration Agreement contains the following provision pertaining to awards of 18 attorney's fees:

19 Each party shall be responsible for its own attorney's fees. However, if any party prevails on a statutory claim, which affords the prevailing party[ ] 20 attorney's fees, or if there is written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party. 21 (See Pehle Decl. Ex. A ¶ F.) 22 In his Complaint, Kittrell seeks, with respect to his minimum wage and overtime 23 claims, an award of attorney's fees under § 1194 of the Labor Code (see Compl., Prayer 24 for Relief, page 32), which statute contains "a one-way fee shifting provision, whose 25 purpose is to disincentivize violations of [the] minimum and overtime wage laws," see 26

27 10 The AAA Employment/Workplace Arbitration Rules can be found at 1 Gramajo v. Jose's Pizza on Sunset, Inc., 100 Cal. App. 5th 1094, 1101-02 (2024). Kittrell 2 argues the above-quoted provision's use of the word "may" means the arbitrator has the 3 discretion to ignore § 1194 in the event Kittrell were to prevail on his minimum and 4 overtime wage claims. 5 "[A]n arbitration agreement may not limit statutorily imposed remedies such as . . . 6 attorney fees." See Armendariz, 24 Cal. 4th at 103 (describing as "undisputed" the 7 principle that "an arbitration agreement may not limit statutorily imposed remedies such 8 as . . . attorney fees"). The Court does not, however, interpret the above-quoted 9 provision in the Arbitration Agreement in the manner proposed by Kittrell. 10 Under the "American Rule," each litigant "pays his own attorney's fees, win or 11 lose, unless a statute or contract provides otherwise." See Hardt v. Reliance Standard 12 Life Ins. Co., 560 U.S. 242, 252-53 (2010). The Court interprets the above-quoted 13 provision in the Arbitration Agreement as restating this "bedrock principle," see id., i.e., 14 that the American Rule applies unless a statute or contract contains an attorney's fees 15 provision. 16 To the extent the Arbitration Agreement's use of the word "may" creates any 17 ambiguity, however,11 the Court finds it proper to interpret the sentence in which it is 18 contained to mean that, if an applicable statute or contract contains an attorney's fees 19 provision, such provision applies rather than the American Rule. See Pearson Dental 20 Supplies, Inc. v. Superior Court, 48 Cal. 4th 665, 682 (2010) (holding, "[w]hen an 21 arbitration provision is ambiguous, [courts] will interpret that provision, if reasonable, in a 22 manner that renders it lawful, both because of [California's] public policy in favor of 23 arbitration as a speedy and relatively inexpensive means of dispute resolution, and 24 because of the general principle that [courts] interpret a contractual provision in a manner 25 that renders it enforceable rather than void"); Patterson v. Superior Court, 70 Cal. App. 26 11 The Court notes that the drafter of the second sentence could not have used the 27 word "shall" in place of "may," as many statutes and contracts containing attorney's fees 1 5th 473, 490 (2021) (holding, in case where employee subject to arbitration agreement 2 asserted FEHA claim, arbitration agreement was interpreted as "impliedly incorporat[ing] 3 the FEHA asymmetric rule for awarding attorney's fees"). 4 Accordingly, the Court finds the attorney's fees provision in the Arbitration 5 Agreement is not unconscionable. 6 (5) Limitations on Seeking Public Injunctions 7 The Arbitration Agreement provides arbitration "shall proceed solely on an 8 individual basis" and that "[t]he arbitrator's authority to resolve and make written awards 9 is limited to claims between [the employee] and [USA Debusk] alone." (See Pehle Decl. 10 Ex. A ¶ I.) Kittrell contends such provisions unconscionably preclude him from seeking 11 public injunctive relief. In support of such argument, Kittrell relies on McGill v. Citibank, 12 N.A., 2 Cal. 5th 945 (2017), in which the California Supreme Court held that an 13 arbitration provision is "invalid and unenforceable under state law" where it precludes a 14 party from seeking "public injunctive relief," see id. at 961, "i.e., injunctive relief that has 15 the primary purpose and effect of prohibiting unlawful acts that threaten future injury to 16 the general public," see id. at 951. 17 The Ninth Circuit has held, however, that the "McGill rule is not implicated" where 18 a plaintiff does not seek public injunctive relief. See Hodges v. Comcast Cable 19 Communications, LLC, 21 F.4th 535, 538 (9th Cir. 2021) (holding, where plaintiff does not 20 seek public injunctive relief, he cannot rely on "McGill rule" to avoid arbitration); see also 21 id. at 540-41 (rejecting argument that "courts should stretch to invalidate contracts based 22 on hypothetical issues that are not actually presented in the parties' dispute"). 23 Here, the Complaint describes the injunctive relief Kittrell seeks as an order 24 enjoining USA Debusk "from engaging in the conduct alleged [in the Complaint] that is 25 injurious to the general public." (See Compl. ¶ 160.) As set forth above, the "conduct 26 alleged" in the Complaint consists of an employer's failure to pay employees for all hours 27 worked, to pay all overtime owed, to provide all required meal and rest periods or to pay 1 they take sick days off, and to provide accurate wage statements. Injunctive relief to 2 remedy such alleged violations would not, as a matter of law, be "public injunctive relief." 3 See Hodges, 21 F.4th at 543 (explaining injunction to "prevent [an] employer" from 4 violating "wage and hour" laws under California law is "not 'public'" injunction; noting 5 "potential beneficiaries" of such injunction are employer's "current employees, not the 6 public at large"). 7 Accordingly, Kittrell may not, in contending the Arbitration Agreement is 8 unconscionable, rely on the provision barring him from seeking public injunctive relief. 9 (6) Provision Barring PAGA Claims 10 The Arbitration Agreement states that "claims brought in a purported 11 representative capacity on behalf of others" cannot be brought in arbitration. (See Pehle 12 Decl. Ex. A ¶ I.) Kittrell argues said provision is unconscionable as it precludes him from 13 bringing claims on behalf of other employees under the Private Attorney General Act 14 (“PAGA”), §§ 2698 - 2699.6 of the California Labor Code.12 15 Under California law, "an employee's right to bring a PAGA action is unwaivable," 16 and, consequently, a provision in an arbitration agreement requiring an employee to 17 waive such right "is against public policy and may not be enforced." See Iskanian v. CLS 18 Transportation Los Angeles LLC, 59 Cal. 4th 348, 383 (2014). USA Debusk does not 19 dispute that the provision on which Kittrell relies bars him from seeking relief under PAGA 20 on behalf of other employees. 21 Accordingly, the Court finds the provision barring Kittrell from seeking relief under 22 PAGA on behalf of other employees is substantively unconscionable. 23 12 Kittrell does not allege a PAGA claim, nor has he asserted any desire to amend 24 to allege one. Under such circumstances, it could be argued that he should not be allowed to rely on the Arbitration Agreement's prohibition against bringing PAGA claims, 25 as he seeks to invalidate a contract "based on hypothetical issues that are not actually presented in the parties' dispute." See Hodges, 21 F.4th at 541. The principle set forth 26 in Hodges, however, has not been applied to an employee who does not allege a PAGA claim. See, e.g., Najarro v. Superior Court, 70 Cal. App. 5th 871, 882-83 (2021) (holding, 27 in determining whether provision in arbitration agreement barring PAGA claims is 1 (7) Conclusion: Unconscionability 2 As the Arbitration Agreement is, at least to some extent, procedurally 3 unconscionable and contains one substantively unconscionable term, i.e., the prohibition 4 against PAGA claims, the Court next addresses whether the substantively 5 unconscionable term is severable. See Concepcion, 563 U.S. at 339 (holding, "[u]nder 6 California law," courts "may limit the application of any unconscionable clause") (internal 7 quotation and citation omitted); Cal. Civ. Code § 1670.5 (providing where court finds 8 "contract or any clause of the contract to have been unconscionable at the time it was 9 made[,] the court may refuse to enforce the contract, or it may enforce the remainder of 10 the contract without the unconscionable clause"). 11 Severance of an unconscionable term is not appropriate where a court "would 12 have to, in effect, reform the contract" in order to preserve the rest of the agreement or 13 where the "central purpose of the contract is tainted with illegality." See Armendariz, 24 14 Cal. 4th at 125; see also, e.g., Bridge Fund Capital Corp. v. Fastbucks Franchise Corp., 15 622 F.3d 996, 1006 (9th Cir. 2010) (considering, under California law, five-paragraph 16 arbitration clause; finding arbitration clause unenforceable where severance of four 17 "offending provisions would have left almost nothing"). 18 Here, no reformation or rewriting is necessary, as severance of the term barring 19 "claims brought in a purported representative capacity on behalf of others" will serve to 20 maintain an otherwise valid agreement, the central purpose of which is to resolve all 21 employment-related claims by arbitration, but only "to the extent permitted by law." (See 22 Pehle Decl. Ex. A ¶ A); Armendariz, 24 Cal. 4th at 124 (noting "doctrine of severance 23 attempts to conserve a contractual relationship if to do so would not be condoning an 24 illegal scheme"). The Court thus finds severance of the challenged PAGA provision 25 appropriate and, in its absence, finds the Arbitration Agreement is not substantively 26 unconscionable. 27 Accordingly, as a finding of unconscionability requires both "a procedural and a 1 unenforceable on grounds of unconscionability. 2 4. Class Action Waiver 3 The Arbitration Agreement provides that "[a]rbitration shall proceed solely on an 4 individual basis without the right for any claims to be arbitrated on a class action basis." 5 (See Pehle Decl. Ex. A ¶ I.) Kittrell argues such provision is unenforceable. If so, it 6 would be "invalidate[d]" and Kittrell could pursue his class claims in arbitration. See 7 Gentry v. Superior Court, 42 Cal. 4th 443, 463 (2007). 8 In Gentry, the California Supreme Court identified the following factors a court 9 must consider when addressing, in a case in which the plaintiff asserts an overtime claim, 10 an argument that a class action waiver in an arbitration agreement is unenforceable: 11 "[1] the modest size of the potential individual recovery, [2] the potential for retaliation 12 against members of the class, [3] the fact that absent members of the class may be ill- 13 informed about their rights, and [4] other real world obstacles to the vindication of class 14 members' right to overtime pay through individual arbitration." See id. at 463. To be 15 entitled to a finding that a class action waiver is invalid, a plaintiff must make a "proper 16 factual showing" as to the above-referenced four factors. See id. at 466. 17 Here, with respect to the first factor, Kittrell's counsel has set forth his valuation of 18 Kittrell's individual claims (see Szmanda Decl. ¶¶ 3-8), which he totals as "approximately 19 $15,522.00" (see id. ¶ 3). Additionally, counsel states he would not have agreed to 20 represent Kittrell individually "due to the small amount of damages." (See id. ¶ 11.) In 21 light of such evidence, the first factor weighs in favor of invaliding the class action waiver. 22 See Gentry, 42 Cal. 4th at 458-59 (citing favorably to Court of Appeal case "reject[ing] the 23 argument that even an award as large of $37,000 would be ample incentive for an 24 individual lawsuit for overtime pay"; finding availability of "[a] class suit" provides "small 25 claimants with a method of obtaining redress for claims which would otherwise be too 26 small to warrant individual litigation"). 27 With respect to the second factor, Kittrell offers no direct evidence that putative 1 declaration that he "would have been afraid that [he] would have been putting [his] job at 2 risk if [he] complained about [his] rights or filed a lawsuit." (See Kittrell Decl. ¶ 25.) 3 Although courts have found the second factor is established by evidence that the named 4 plaintiff feared "retaliation," see Garrido v. Air Liquide Industrial U.S., L.P., 241 Cal. App. 5 4th 833, 846 (2015), in those cases the named plaintiff identified some basis for his own 6 fear, from which an inference could be drawn that the putative class members would 7 have a similar fear, see Franco v. Athens Disposal Co., 171 Cal. App. 1277, 1285, 1296 8 (2009) (holding plaintiff satisfied second factor by relying on his declaration that "in his 9 experience, employees who complained about working conditions were 'looked down on' 10 by management and 'often lost their jobs or were treated in ways that forced them to 11 quit'") (alteration omitted); Garrido, 241 Cal. App. 4th at 846 (finding plaintiff satisfied 12 second factor by relying on his declaration that he had "fear of retaliation by [employer]" 13 because it "made its truck drivers frequently feel as if their jobs were in jeopardy"). Here, 14 by contrast, Kittrell fails to identify any basis for his asserted fear. Under such 15 circumstances, the second factor weighs, at best, only slightly in favor of invaliding the 16 class action waiver. 17 With respect to the third factor, Kittrell again does not rely on any direct evidence 18 of the experiences of the putative class members, in this instance evidence as to what 19 information putative class members lack. Rather, Kittrell relies on his declaration that he 20 "did not know [his] lunch and rest break rights under California law or that [he] was 21 supposed to be paid wages if [he] did not get all required breaks." (See Kittrell Decl. 22 ¶ 24.) As there is no evidence Kittrell was unaware of his right to overtime, his right to be 23 paid at least the minimum wage, and his right to receive sick pay, there is no evidence 24 from which to infer putative class members lack such information. With respect to meal 25 and rest breaks, USA Debusk has offered evidence that employees are advised of meal 26 and rest policies "at the time of hire," namely, evidence that they are provided with a 27 written policy setting forth "California's rules for taking meal periods and rest breaks" (see 1 determined he was "exempt" from California's "meal and rest break rules, by virtue of 2 federal Department of Transportation regulations" (see id. ¶ 8). Given such apparently 3 idiosyncratic situation,13 the Court finds the third factor does not weigh in favor of 4 invaliding the class action waiver. 5 With respect to the fourth, and last, factor, Kittrell relies on the same showing he 6 offers in support of the first factor, namely, his counsel's declaration that he would not 7 have agreed to represent Kittrell individually "due to the small amount of damages." (see 8 Szmanda ¶ 11), a circumstance appropriately considered in connection with the first 9 factor, see Gentry, 42 Cal. 4th at 459. Kittrell fails, however, to identify some "other real 10 world obstacles to the vindication of class members' right to overtime pay," or another 11 type of pay, if putative class members were to be required to proceed with individual 12 arbitrations. See id. at 463. Indeed, as to "many" of USA Debusk's employees, no such 13 question will arise. In particular, Kittrell has not contested USA Debusk's evidence that 14 "many employees in California over the last five years . . . have declined to sign 15 arbitration agreements with USA Debusk for many different reasons." (See Black Decl. 16 ¶ 5.) Consequently, such individuals, if they so desire, are able to bring employment- 17 related claims in court, either individually or through a class action. Under such 18 circumstances, the Court finds the fourth factor does not weigh in favor of invaliding the 19 class action waiver. 20 Accordingly, two factors weighing against invalidation, one factor weighing in favor 21 of invalidation, and one factor weighing only slightly, if at all, in favor of invalidation, the 22 Court finds Kittrell has failed to show the class action waiver should be invalidated. 23 CONCLUSION 24 For the reasons stated above, USA Debusk's motion to compel arbitration is 25 hereby GRANTED, and the above-titled action is hereby STAYED pending resolution of 26 13 Kittrell has not argued the putative class consists of improperly classified 27 individuals; indeed, he seeks to bring his claims, including meal and rest period claims, 4 Kittrell's individual arbitration claims. 2 IT 1S SO ORDERED. 3 4 || Dated: October 31, 2025 .

MAXINE M. CHESNEY

5 United States District Judge 6 7 8 9 10 11 12

13

15 16

18 19 20 21 22 23 24 25 26 27 28