Da Loc Nguyen v. Applied Med. Res. Corp.

• Decision Date: 04 October 2016
• Docket Number: G052207
• Citation: 209 Cal.Rptr.3d 59,4 Cal.App.5th 232
• Court: California Court of Appeals Court of Appeals
• Parties: DA LOC NGUYEN, Plaintiff and Appellant, v. APPLIED MEDICAL RESOURCES CORPORATION, Defendant and Respondent.

4 Cal.App.5th 232

209 Cal.Rptr.3d 59

DA LOC NGUYEN, Plaintiff and Appellant,

v.APPLIED MEDICAL RESOURCES CORPORATION, Defendant and Respondent.

G052207

Court of Appeal, Fourth District, Division 3, California.

Filed October 4, 2016

Quintilone & Associates and Richard E. Quintilone II, Lake Forest; Law Offices of John D. Trieu and John D. Trieu, Anaheim Hills, for Plaintiff and Appellant.

Jones Day, Steven M. Zadravecz, Irvine, and Edward S. Chang for Defendant and Respondent.

OPINION

MOORE

, J.

Plaintiff Da Loc Nguyen appeals from the trial court's order granting the motion of his former employer, defendant Applied Medical Resources Corporation, to compel arbitration based on an arbitration clause contained in his employment application. The court ordered plaintiff to submit his individual claims to arbitration and struck all class and representative claims except for the representative Private Attorney General Act (PAGA)¹ cause of action.

Plaintiff contends the order is immediately appealable based on the death knell doctrine, which makes an order terminating class allegations but allowing individual claims to continue immediately appealable. He argues Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291, 189 Cal.Rptr.3d 134

(Munoz ), which held that the death knell doctrine is inapplicable where a PAGA cause of action remains, was wrongly decided and should not be followed. We disagree but nevertheless treat the appeal as a petition for writ of mandate.

As to the merits of the appeal, plaintiff asserts the court erred in finding the arbitration clause was not unconscionable, severing the cost provision, and dismissing the class claims with prejudice. We reject all but the last argument. Based on the recent case of Sandquist v. Lebo Automotive Inc. (2016) 1 Cal.5th 233, 205 Cal.Rptr.3d 359, 376 P.3d 506

(Sandquist ), on which we have received supplemental briefing from the parties, the trial court erred in dismissing the class claims because whether the arbitration provision contemplated class arbitration was a question for the arbitrator to decide.

We shall issue a peremptory writ of mandate commanding the trial court to vacate that portion of its order dismissing the class claims to allow the arbitrator to decide whether the arbitration clause permits arbitration on a class-wide basis. In all other respects, the peremptory writ challenging the order compelling arbitration is denied. We grant plaintiff's request for judicial notice of the American Arbitration Association's (AAA) Employment Arbitration Rules and Mediation Procedures, amended and effective June 1, 2009, Employment Arbitration Rules and Mediation Procedures, amended and effective November 1, 2009, and Supplemental Rules for Class Arbitrations.

I

FACTS AND PROCEDURAL BACKGROUND

Defendant manufactures surgical products and sells or distributes them nationwide. After plaintiff completed a job application, defendant hired him to work in the production line of its surgical products.

The application consisted of five pages. The first three pages asked for general information such as address, phone number, education and work history. The last two pages instructed the applicant in all capital letters to “PLEASE READ CAREFULLY, INITIAL EACH [OF FOUR] PARAGRAPH[S] AND SIGN BELOW.” Plaintiff signed the application after initialing all four of the paragraphs, including the third one, which states: “I hereby agree to submit to binding arbitration all disputes and claims arising out of or relating to the submission of this application. I further agree, in the event that I am hired by the company, that all disputes that cannot be resolved by informal internal resolution which might arise out of or relate to my employment with the company, whether during or after that employment, will be submitted to binding arbitration. I agree that such arbitration shall be conducted under the rules of the [AAA]. This application contains the entire agreement between the parties with regard to dispute resolution, and there are no other agreements as to dispute resolution, either oral or written. However, the company and I shall each pay one-half of the costs and expenses of such arbitration, and each of us shall separately pay our counsel fees and expenses. The prevailing party shall be entitled to recover reasonable attorneys fees, costs, and expenses. The arbitration shall be held in Orange County, California. It shall be governed by California law without regard to California choice-of-law statutes, rules and cases.”

In 2014, plaintiff brought a putative class action against defendant, asserting causes of action under the Labor Code, the Unlawful Competition Law, and PAGA. The action sought unpaid overtime, meal and rest period compensation, penalties, plus injunctive and other equitable relief.

Counsel for both parties met on multiple occasions to discuss a potential stipulation to submit the claims to arbitration and stay the PAGA cause of action. Defendant offered to pay for the costs of arbitration, including the initiation fees and compensation for the arbitrator, effectively agreeing to strike the cost splitting provision. Plaintiff rejected it.

Defendant moved to compel arbitration of the individual claims, strike the class allegations, and stay the PAGA cause of action. Plaintiff opposed the motion.

The trial court granted the motion, ordering plaintiff's individual claims to arbitration, striking or dismissing the class action allegations with prejudice, and directed defendant to “pay all costs of the arbitration other than those that plaintiff would necessarily pay in a court proceeding.” In doing so, it found: (1) the contract was still a contract even if it may be one of adhesion because plaintiff was required to sign it in order to obtain employment; (2) plaintiff was not credible in claiming he was “not fluent in speaking or reading English,” as he states in his application “he has English as a special skill or talent[,] ... checked the appropriate boxes on the application which require such an understanding, and ... is a civil engineer trained in Australia”; (3) the failure to attach or provide the AAA rules “may make the application procedurally unconscionable” but not “substantial[ly] oppressive[ ] ... [as i]t would seem unlikely that a civil engineer, with six years of college, could not traverse the internet to find such rules[ a]nd, even if the application is procedurally unconscionable, it is not substantively unconscionable”; (4) the costs provision was “easily severable” and did “not permeate the application with substantive unconscionability”; and (5) nothing in the arbitration provision indicated “class actions or representative claims were included” and the words used did not relate or arise out of other employees' employment.

II

DISCUSSION

A. Appealability

“An order compelling arbitration is not appealable.” (Garcia v. Superior Court (2015) 236 Cal.App.4th 1138, 1149, 187 Cal.Rptr.3d 312

.) Although “[r]eview of [such] an order ... ordinarily must await appeal from a final judgment entered after arbitration[,] ... [¶] ... when warranted by the circumstances, immediate review of an order granting a motion to compel arbitration may be obtained by a petition for writ of mandate.” (Ibid. ) Where appropriate, it is also attainable under the death knell doctrine, which “ ‘provides that an order which allows a plaintiff to pursue individual claims, but prevents the plaintiff from maintaining the claims as a class action, ... is immediately appealable because it “effectively r[ings] the death knell for the class claims.” ’ [Citations.] Appealability under the death knell doctrine requires ‘an order that (1) amounts to a de facto final judgment for absent plaintiffs, under circumstances where (2) the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.’ ” (Miranda , supra , 241 Cal.App.4th at p. 200, 193 Cal.Rptr.3d 770

.)

The death knell doctrine does not apply in this case. “[O]rders that only limit the scope of a class or the number of claims available to it are not similarly tantamount to dismissal and do not qualify for immediate appeal under the death knell doctrine; only an order that entirely terminates class claims is appealable.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 757–758, 122 Cal.Rptr.3d 153, 248 P.3d 681

, italics added (Baycol ).) “Although the only class claim has been dismissed, the representative PAGA claim remains and plaintiff does not contend there are any putative class members who are not also aggrieved employees for purposes of the PAGA claim. Accordingly, the order does not appear to constitute a de facto final judgment for absent plaintiffs—the putative class members/aggrieved employees under PAGA—because their PAGA claims remain pending.” (Young v. Remx, Inc. (2016) 2 Cal.App.5th 630, 635, 206 Cal.Rptr.3d 711 (Young ).) That distinguishes this case from Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277, 1282, 90 Cal.Rptr.3d 539, cited by plaintiff in his reply brief, where the order compelling arbitration terminated all class claims, “effectively limiting the arbitration to [the] plaintiff's claims.” (Italics omitted.)

“In any event, because of the remaining PAGA claim, plaintiff has not established the second rationale for the death knell doctrine: that ‘ “the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.” ’ ” (

Young , supra , 2 Cal.App.5th at p. 635, 206 Cal.Rptr.3d 711

.) Young found Munoz instructive on this issue. In Munoz, the plaintiff appealed from an order denying class certification under the death knell doctrine. (Munoz , supra , 238 Cal.App.4th at p. 294, 189 Cal.Rptr.3d 134.) Munoz dismissed the appeal, concluding the potential PAGA penalties incentivized the plaintiff to continue with the litigation, thus eliminating...