Brown

*494 Opinion

INTRODUCTION

Plaintiff and respondent Terri Brown (plaintiff) brought a class action and representative action under the Labor Code Private Attorneys General Act of 2004 (the PAGA) 1 against her employers, defendants and appellants Ralphs Grocery Company and The Kroger Co. (defendants), for alleged violations of the Labor Code. Defendants appeal from the trial court’s order denying their petition to compel plaintiff to submit her individual causes of action to arbitration as required under her employment agreement.

We hold that the trial court erred in ruling that under Gentry v. Superior Court (2007) 42 Cal.4th 443 [ 64 Cal.Rptr.3d 773 , 165 P.3d 556 ] (Gentry), the class action waiver provision 2 in plaintiff’s employment agreement was unenforceable because that ruling was not supported by substantial evidence. We also hold that the recent decision of the United States Supreme Court in AT&T Mobility LLC v. Concepcion (2011) 563 U.S._[ 179 L.Ed.2d 742 , 131 S.Ct. 1740 ] (AT&T), holding that California decisional law invalidating class action waivers in consumer arbitration agreements is preempted by the Federal Arbitration Act ( 9 U.S.C. § 1 et seq.; FAA), does…

I concur in the majority opinion’s rejection of plaintiff Terri Brown’s argument that the class action waiver in her employment contract with Ralphs Grocery Company and The Kroger Co. was unconscionable under Gentry v. Superior Court (2007) 42 *505 Cal.4th 443 [ 64 Cal.Rptr.3d 773 , 165 P.3d 556 ] (Gentry). I respectfully dissent, however, from the majority’s further conclusion that Brown’s waiver of the right to file a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) 1 was unenforceable. The preemptive effect of the Federal Arbitration Act (FAA) requires enforcement of the PAGA waiver in the employment arbitration agreement in this case under the holding of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. _ [ 179 L.Ed.2d 742 , 131 S.Ct. 1740 ] (AT&T). I would reverse the order of the trial court denying the motion to compel arbitration.

Gentry

The majority correctly holds that Brown failed to present substantial evidence that the class action waiver in the employment contract was unconscionable, as required by Gentry, supra, 42 Cal.4th at page 466 . Gentry's continuing vitality is in doubt after the decision in…