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8 United States District Court 9 Central District of California

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11 JILL TIZEKKER and KATIE Case № 2:20-CV-03989-ODW (AFMx) McCLELLAND, individually and on 12 behalf of all others similarly situated,

ORDER GRANTING MOTION TO

13 Plaintiffs,

COMPEL ARBITRATION [15]

14 v.

15

BEL-AIR BAY CLUB LTD,

16 Defendant. 17 18 I. INTRODUCTION 19 Before the Court is Defendant Bel-Air Bay Club, LTD’s (the “Club”) Motion to 20 Compel Arbitration (“Motion”). (Mot., ECF No. 15.) For the reasons that follow, the 21 Court GRANTS the Club’s Motion.1 22 II. BACKGROUND 23 The Club is an event venue and private beach club operating in the Pacific 24 Palisades neighborhood of Los Angeles, California. (Compl. ¶ 26, ECF No. 1; 25 Mot. 1.) The Club employed Plaintiff Jill Tizekker as a banquet bartender from about 26 September 2016 to June 2020 and Plaintiff Katie McClelland as a full-time bartender 27

28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 from about August 2017 to August 2018. (Compl. ¶¶ 27–28; Mot. 2; Decl. of 2 Charlotte Pattison (“Pattison Decl.”) ¶ 8, ECF No. 15-1.) At the beginning of their 3 employment with Club, Plaintiffs each signed a Mutual Agreement to Arbitrate 4 (“Agreement”), which provides: 5 [I]n the event of any issue or dispute which requires adjudication arising [sic] or involving any provision under this Handbook or any issue 6 regarding an employee’s employment with the Club or the termination of 7 employment . . . the issue will be submitted to and resolved by final and 8 binding arbitration as provided for by the California Arbitration Act. 9 (Pattison Decl. ¶ 8, Exs. 1 (“Tizekker Agreement”), 2 (“McClelland Agreement”), 10 ECF Nos. 15-2, 15-3 (collectively “Agreements”).) 11 Plaintiffs contend that, during their employment, the Club failed to comply with 12 various state and federal labor laws. (Compl. ¶¶ 1–6.) Accordingly, Plaintiffs 13 initiated this class and collective action challenging the Club’s failure to: 14 (1) compensate for all hours worked; (2) pay all minimum wages owed; (3) pay all 15 overtime wages owed; (4) pay all tip wages owed from service charge gratuity 16 payments; (5) reimburse for necessary business expenses; (6) provide accurate, 17 itemized wage statements; and (7) timely pay full wages upon termination or 18 resignation. (Id. ¶¶ 7, 64–184.) 19 Currently, the Club moves to compel Plaintiffs to binding individual arbitration 20 and dismiss all claims. (Mot. 1.) The Motion is fully briefed. (Opp’n, ECF No. 18; 21 Reply, ECF No. 19.) 22 III. LEGAL STANDARD 23 The Federal Arbitration Act (“FAA”) governs contract disputes relating to 24 arbitration where they affect interstate commerce. Allied-Bruce Terminix Cos. v. 25 Dobson, 513 U.S. 265, 273–77 (1995). The FAA establishes “a liberal federal policy 26 favoring arbitration agreements” and requires district courts to compel arbitration on 27 all claims within the scope of the agreement. Epic Sys. Corp. v. Lewis, 138 S. Ct. 28 1612, 1621 (2018) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 1 460 U.S. 1, 24 (1983)); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). 2 In deciding whether to compel arbitration, a court’s inquiry is generally limited to 3 “two ‘gateway’ issues: (1) whether there is an agreement to arbitrate between the 4 parties; and (2) whether the agreement covers the dispute.” Brennan v. Opus Bank, 5 796 F.3d 1125, 1130 (9th Cir. 2015) (citing Howsam v. Dean Witter Reynolds, Inc., 6 537 U.S. 79, 84 (2002)). “If the response is affirmative on both counts, then the Act 7 requires the court to enforce the arbitration agreement in accordance with its terms.” 8 Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). 9 However, in light of the FAA’s “savings clause,” every arbitration agreement is 10 subject to “generally applicable contract defenses, such as fraud, duress, or 11 unconscionability.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). 12 IV. DISCUSSION 13 The Club moves to compel arbitration on the ground that Plaintiffs’ claims are 14 subject to arbitration because they arise from Plaintiffs’ employment and thus fall 15 within the scope of the valid and enforceable Agreements. (See Mot. 6–8.) The Club 16 submits two authenticated copies of the Agreement, one signed by Plaintiff Tizekker, 17 the other by Plaintiff McClelland. (See Agreements.) 18 Plaintiffs “[b]y and large . . . do not oppose [the Club’s Motion]” and “concede 19 their claims are likely subject to arbitration.” (Opp’n 1, 6.) Significantly, Plaintiffs do 20 not oppose the Club’s Motion on the following material points: (1) the FAA applies 21 because the Agreements involve interstate commerce;2 (2) Plaintiffs each signed the 22 Agreements to arbitrate; (3) the Agreements require individual arbitration of Plaintiffs’ 23 claims; (4) and the class and collective claims may be dismissed. (See Mot. 3–8; see 24 generally Opp’n; Reply 1–2.) Plaintiffs’ lack of opposition to each of these arguments 25

26 2 The Court further finds that the Club has shown the Agreements sufficiently involve interstate commerce to support the FAA’s application here. (See Mot. 3–6); CarMax Auto Superstores Cal. 27 LLC v. Hernandez, 94 F. Supp. 3d 1078, 1100 (C.D. Cal. 2015) (citing Circuit City Stores, Inc. v. 28 Adams, 532 U.S. 105, 119 (2001)) (“[T]he FAA applies to employment contracts if the employment affects interstate commerce.”). 1 constitutes concession.3 See Heraldez v. Bayview Loan Servicing, LLC, No. CV 16- 2 1978-R, 2016 WL 10834101, at *2 (C.D. Cal. Dec. 15, 2016), aff’d, 719 F. App’x 663 3 (9th Cir. 2018) (“Failure to oppose constitutes a waiver or abandonment of the 4 issue.”); Muller v. Morongo Casino, Resort, & Spa, No. EDCV 14-02308-VAP 5 (KKx), 2015 WL 3824160, at *5 (C.D. Cal. June 17, 2015) (concluding plaintiff’s 6 failure to oppose an argument amounted to concession of that argument). 7 Accordingly, the Club has established that agreements to arbitrate exist as to 8 Plaintiffs Tizekker and McClelland and require individual arbitration of Plaintiffs’ 9 claims. As such, the Court must compel arbitration. See Chiron Corp., 207 F.3d 10 at 1130. 11 A. Plaintiffs’ Requests 12 Despite conceding all of the above, Plaintiffs nevertheless request that the Court 13 “provide clarity and direction to the arbitrator” regarding two purported ambiguities in 14 the Agreements. (Opp’n 2, 5, 6.) Plaintiffs ask the Court to “clarify,” first, that the 15 final and binding arbitration proceedings will be subject to judicial review pursuant to 16 the California Arbitration Act and, second, that the arbitrator’s discretion to award 17 attorneys’ fees and costs is limited to essentially ensure Plaintiffs will be awarded 18 their fees and the Club will not. (Id. at 3–5.) Plaintiffs suggest that if the arbitrator 19 interprets these provisions of Agreements “incorrectly” (according to Plaintiffs), the 20 Agreements could be rendered unconscionable. (Id.) Plaintiffs further contend the 21 Court may properly “clarify” these issues before compelling arbitration because they 22 are “gateway” issues and the Agreements do not explicitly delegate resolution of 23 ambiguities to the arbitrator. (Id. at 2.) Setting aside the utterly speculative nature of 24 Plaintiffs’ request for a moment, Plaintiffs’ arguments still fail on multiple counts. 25

26 3 Regarding the parties’ meet and confer efforts, the Court declines to wade into the morass of Plaintiffs’ excuses. The Court simply notes that, had Plaintiffs engaged in the professional courtesy 27 of responding to the Club’s correspondence during the weeks in which the Club attempted to confer 28 before filing this Motion, (see Decl. of Raina Singer ¶¶ 3–5, ECF No. 15-4), it appears likely that the Motion could have been avoided altogether, sparing the parties’ and the Court’s time and resources. 1 1. Unconscionability 2 Plaintiffs drop the term “unconscionable” like a magic talisman once in the 3 introduction to their Opposition, but otherwise offer literally no argument to suggest 4 the Agreements or their provisions are unconscionable. (See generally id.) Under 5 California law, unconscionability requires both a procedural and substantive 6 component and the party opposing arbitration bears the burden of proof. Armendariz 7 v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000); Poublon v. C.H. 8 Robinson Co., 846 F.3d 1251, 1260–61 (9th Cir. 2017) (quoting Pinnacle Museum 9 Tower Ass’n v. Pinnacle Mkt. Dev. (US), 55 Cal. 4th 223, 236 (2012)). Plaintiffs do 10 not even attempt to explain what it is about the Agreements or these provisions that is 11 somehow, for example, oppressive, surprising, overly harsh, or one-sided. See 12 Armendariz, 24 Cal. 4th at 114 (describing procedural unconscionability as oppressive 13 or surprising and substantive unconscionability as overly harsh or one-sided). 14 Plaintiffs provide absolutely no basis for finding unconscionability. Accordingly, 15 Plaintiffs fail to disturb the conclusion that the Agreements are valid and enforceable. 16 2. “Clarification” 17 Moving on, Plaintiffs argue the Court should “clarify” purported ambiguities in 18 the Agreements as to the availability of judicial review and the arbitrator’s discretion 19 to award attorneys’ fees. They contend these issues are “gateway questions” and the 20 Agreements are silent as to authority to interpret ambiguities. (Opp’n 2.) Plaintiffs’ 21 arguments strain credulity. 22 To begin, the availability of judicial review and propriety of attorneys’ fees 23 awards are not “gateway” issues, as Plaintiffs must know, assuming they read the 24 cases they cite to the Court. Rather, “gateway” issues concern “questions of 25 arbitrability, such as whether the parties have a valid arbitration agreement or are 26 bound by a given arbitration clause, and whether an arbitration clause in a concededly 27 binding contract applies to a given controversy.” Momot v. Mastro, 652 F.3d 982, 987 28 (9th Cir. 2011); (see Opp’n 2 (quoting Momot, 652 F.3d at 987)). The availability of 1 post-arbitration judicial review and the potential for an award of attorneys’ fees simply 2 do not fit that bill. 3 Next, the Agreements are not silent concerning delegation of authority to 4 interpret perceived ambiguities. The Agreements provide that the parties will arbitrate 5 “any issue or dispute . . . involving any provision under this Handbook.” 6 (Agreements 1.) This language necessarily includes issues or disputes involving 7 ambiguous provisions in the Agreements and thus delegates to the arbitrator 8 interpretation of any such provisions. Therefore, the arbitrator, not the Court, must 9 resolve Plaintiffs’ purported ambiguities. See Byrd, 470 U.S. at 218 (“[D]istrict courts 10 shall direct the parties to proceed to arbitration on issues as to which an arbitration 11 agreement has been signed.”). 12 Finally, Plaintiffs fail to actually identify any ambiguity in the Agreements. 13 Plaintiffs contend the Agreements are silent and therefore ambiguous as to the 14 availability of judicial review. (Opp’n 2, 3.) But the Agreements require that disputes 15 “will be submitted to and resolved by final and binding arbitration as provided for by 16 the California Arbitration Act.” (Agreements 1 (emphasis added).) The Court sees no 17 ambiguity; “final and binding arbitration” means just that. Plaintiffs also contend the 18 Agreements are “subjectively vague” regarding the arbitrator’s discretion to award 19 attorneys’ fees and costs. (Opp’n 2, 3–5 (contending language is ambiguous because 20 the arbitrator could refuse to award Plaintiffs their fees or decide to grant the Club its 21 fees).) Once again, the Court finds no ambiguity. The Agreements provide “the 22 arbitrator will have the authority to require either party to pay the fee for the other 23 party’s representation during the arbitration, as is otherwise permitted under federal 24 or state law . . . .” (Agreements 2 (emphases added).) The parties clearly granted the 25 arbitrator the authority described to award attorneys’ fees as permitted by law. That 26 Plaintiffs now fear the arbitrator may exercise that authority in a manner Plaintiffs 27 deem undesirable is not cause for this Court’s “clarification.” 28 1 In short, Plaintiffs provide absolutely no basis for the orders they seek and stretch both the law and the facts in their nominal opposition. The Court denies 3 || Plaintiffs’ meritless request for an advisory opinion providing needless “clarity and direction to the arbitrator.” (Opp’n 5.) B. Dismissal 6 In the Ninth Circuit, the district court has discretion to dismiss a party’s 7 || complaint where the court finds that the arbitration clause covers all of the party’s 8 | claims. See, e.g., Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014) (affirming dismissal of action without prejudice where “all of the 10 || claims raised in the action are subject to arbitration”); Sparling v. Hoffman Constr. 11 || Co., 864 F.2d 635, 638 (9th Cir. 1988). All of Plaintiffs’ claims are subject to 12 || individual arbitration and neither side has presented any compelling reason to stay the 13 || case. See Loewen v. Lyft, Inc., 129 F. Supp. 3d 945, 966 (N.D. Cal. 2015) (dismissing 14 || where neither party provided a compelling reason to keep the case on the docket). 15 || Therefore, the Court in its discretion DISMISSES this action without prejudice. 16 V. CONCLUSION 17 For the reasons discussed above, the Court GRANTS the Club’s Motion and 18 | ORDERS Plaintiffs to individual arbitration. (ECF No. 15.) The case is 19 | DISMISSED. The Clerk of the Court shall close the case. 20 21 IT IS SO ORDERED. 22 23 January 13, 2021 Se OM 24 GEA. sin

5 OTIS D. WRIGHT, II

UNITED STATES DISTRICT JUDGE

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