ROGER T. BENITEZ, District Judge.
Pending before the Court is Plaintiff Waldo Burrola's ("Plaintiff" or "Burrola") Motion for Leave to File a First Amended Complaint ("FAC"), Defendant U.S. Security Associates, Inc.'s ("Defendant" and "U.S. Security") Motion to Compel Plaintiff to submit his claims to arbitration on an individual basis, and Plaintiff's Motion to Remand All Causes of Action Complaint/FAC. The Court decides these matters on the papers submitted and without oral argument. See Civ. L. R. 7.1 (d. 1). For the reasons stated below, the Court
U.S. Security is in the business of providing security guards and officer solutions to its business-clients, including those business-clients who operate and do business across state lines. (Doc. No. 3 at 9.) Burrola was a security guard for U.S. Security, beginning in or about November 2016, in California. (Doc. No. 3 at 5.) As a condition of employment, Burrola signed a "Dispute Resolution Agreement" requiring arbitration of any claims between Burrola and U.S. Security. ("Agreement" [Doc. No. 3-2 Ex. A].)
On February 2, 2018, Burrola filed a Complaint in the San Diego Superior Court
Rule 15(a) of the Federal Rules of Civil Procedure governs motions for leave to amend and provides that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). The decision whether to grant leave to amend under Rule 15(a) is committed to the sound discretion of the trial court. Waits v. Weller, 653 F.2d 1288, 1290 (9th Cir. 1981). Leave need not be granted, however, where the amendment would cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in futility, or creates undue delay. Foman v. Davis, 371 U.S. 178, 182 (1962). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
There is no dispute as to the fact that the Federal Arbitration Act ("FAA") governs here. Under the FAA, a Court need consider only two questions to determine whether to compel arbitration: (1) is there a valid agreement to arbitrate? And, if so, (2) does the agreement cover the matter in dispute? Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The Agreement clearly covers the matters in dispute here. Accordingly, the Court need only consider whether the Agreement is valid.
Section 2 of the Federal Arbitration Act ("FAA") states that:
Section 3 of the FAA states where an issue involved in a suit or proceeding is referable to arbitration under an agreement in writing, the district court "shall on application of one of the parties' stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. . . ." 9 U.S.C. § 3. The language is mandatory, and district courts are required to order arbitration on issues as to which an arbitration agreement has been signed. Chiron Corp. 207 F.3d at 1130.
Under California law, the elements of a valid contract are (1) parties capable of contracting; (2) mutual consent; (3) a lawful object; and (4) consideration. Cal. Civ. Code § 1550. However, a court will not enforce an otherwise valid contract if there exists a viable defense, such as illegality.
A defendant in state court may remove a civil action to federal court so long as that case could originally have been filed in federal court. 28 U.S.C. § 1441(a); City of Chi. v. Int'l Coll. Of Surgeons, 522 U.S. 156, 163 (1997). Thus, removal of a state action may be based on either diversity or federal question jurisdiction. City of Chi., 522 U.S. at 163; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). Removal jurisdiction is based entirely on federal statutory authority. See 28 U.S.C. § 1441 et seq. These removal statutes are strictly construed, and removal jurisdiction is to be rejected in favor of remand to the state court if there are doubts as to the right of removal. Nev. v. Bank of Am. Corp., 672 F.3d 661, 667 (9
Burrola seeks to make the following changes to his Complaint: (1) add a cause of action for Violation of Labor Code § 2698 et seq., Private Attorneys General Act of 2004 ("PAGA"); and (2) narrow the scope of the claims by dismissing the Twelfth (Intentional Infliction of Emotional Distress—"IIED") and Thirteenth (Negligent Infliction of Emotional Distress—"NIED") Causes of Action. U.S. Security objects to amending the Complaint to add a PAGA claim.
U.S. Security does not argue that Burrola's proposed FAC should be disallowed because Burrola has unduly delayed in seeking amendment or otherwise have acted in bad faith. Rather, U.S. Security argues Burrola's PAGA claim is futile because he was a member of the Abdullah class, barring him from prosecuting a PAGA lawsuit premised on the same causes action alleged and settled in a prior class action. (Doc. No. 15 at 6.) The Court disagrees.
Under PAGA, Lab. Code §§ 2698, et seq., an aggrieved employee, "defined as `any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed,' may bring a civil action to collect civil penalties for [California] Labor Code violations previously only available in enforcement actions initiated by the State's labor law enforcement agencies." Caliber Bodyworks, Inc. v. Superior Court, 134 Cal.App.4th 365, 374 (2005). An employee suing under PAGA "does so as [a] proxy or agent of the state's labor law enforcement agencies." Arias v. Superior Court, 209 P.3d 923, 933 (Cal. 2009). Consequently, PAGA allows an employee to recover "civil penalties on behalf of the state against his or her employer for [California] Labor Code violations." Iskanian v. CLS Transp. Los Angeles, LLC, 327 P.3d 129, 133 (Cal. 2014).
Any plaintiff bringing a PAGA action must first exhaust the administrative procedures set forth in Cal. Labor Code § 2699.3. Cal. Labor Code § 2699(a). Among those procedures is the requirement that the aggrieved employee give notice to the Labor and Workforce Development Agency ("LWDA") and the employer of the specific provisions of the labor code alleged to have been violated. Id. 2699.3(a). An aggrieved employee may only commence a civil action after he receives notice from the LWDA that it does not intend to investigate the violations, or, if no notice is provided, after 60 days of the postmark date of his notice to the LWDA. Id.
PAGA claims are also restricted by a one-year statute of limitations under California Code of Civil Procedure § 340(a). Thomas v. Home Depot USA Inc., 527 F.Supp.2d 1003, 1007 (N.D. Cal. 2007). An employee must provide notice to the LWDA and the employer within one year of when the employee ceases working for the employer.
Instead, U.S. Security argues Burrola's PAGA claim is futile because he was a member of the Abdullah class action. (Doc. No. 15 at 6.) To show futility sufficient to defeat amendment under Rule 15, the party opposing amendment must prove that the Court would be required to dismiss the proposed claim with prejudice even if amendment were allowed. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (explaining that a proposed amendment is futile and leave should be denied only where the proposed claim is fatally defective as a matter of law); see also Yucesoy, 2015 WL 4571547, at *2. U.S. Security has not satisfied that burden.
U.S. Security did offer evidence reflecting the Abdullah settlement release period potentially encompassed Burrola's entire employment with U.S. Security, which would cover the entire PAGA claim he is currently proposing. (See Doc. No. 15 at 6 [Abdullah Final Approval Order at 4-5, Ex. 1 to RJN].) Moreover, it argues Burrola failed to opt out of the Abdullah class, binding him to the settlement and final judgment. Id.
Burrola contends he never received timely notice of being made a class member because CPT Group (Class Action Administrators) mislabeled the Class Action Settlement form reflecting his address as Unit 1, instead of Unit 10, thereby preventing him from receiving timely notice. (See Doc. No. 17 at 7-8.) As a result, Burrola alleges he was surprised to discover on December 7, 2017 "that an `Order Granting Plaintiffs' motion for final approval of class action settlement, award of attorneys' fees, costs, and enhancements had been issued in the Abdullah case" and that he was a class member. (Decl. of Waldo Burrola, ¶¶ 5-6; Decl. of Eduardo Martorell, ¶ 6)." Id.
The Court notes that U.S. Security received notice of Burrola's separate claims on November 29, 2017, prior to final approval of the Abdullah class settlement. Id. Despite the substantial similarities between the two cases, U.S. Security does not appear to have attempted to confirm Burrola received notice or was even aware of the Abdullah proceedings. Id. Put simply, U.S. Security's actions raise more questions than conclusively demonstrate Burrola does not have a valid claim. Thus, the Court is not convinced at this stage that Burrola will be unable to present evidence of his own sufficient to overcome any Rule 12(b)(1) motion U.S. Security might offer.
Therefore, U.S. Security has not conclusively demonstrated that Burrola lacks standing to assert a PAGA claim, thereby requiring its futility argument on this basis be
While U.S. Security does not object to Burrola's request to dismiss his Twelfth and Thirteenth causes of action, it does object to what it alleges is his intent for doing so — to defeat jurisdiction. See Hill v. Rolleri, 615 F.2d 886, 889 (9th Cir. 1980). (Doc. No. 15 at 1.)
Burrola disputes U.S. Security's contention that it makes the request for improper reasons "to defeat jurisdiction" arguing U.S. Security's assertion is pure speculation and lacks any merit. (Doc. No. 17 at 1.)
Having considered both parties arguments and finding no evidence to support U.S. Security's claim, the Court
Accordingly, the Court
Under the FAA, arbitration agreements are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. When presented with a motion to compel arbitration, the Court is limited to determining (1) whether a valid arbitration agreement exists, and, if so (2) whether the arbitration agreement encompasses the dispute at issue. Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th Cir. 2008). If these conditions are satisfied, the court must compel arbitration. 9 U.S.C. § 4; Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) ("By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration.").
Here, U.S. Security contends that the Court should compel Burrola to honor his mutual agreement to arbitrate his claims and stay further judicial proceedings pending completion of arbitration. (Doc. No. 3 at 3.) Burrola argues the arbitration agreement fails because: (1) it is invalid due to a lack of mutual assent; (2) he is entitled to recover PAGA penalties; (3) PAGA claims may not be arbitrated
U.S. Security presents the Arbitration Agreement, bearing the signature of "Waldo Burrola" as evidence of the parties' agreement to arbitrate.
Under California law, mutual assent is a required element of contract formation. Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014). It "may be manifested by written or spoken words, or by conduct, and acceptance of contract terms may be implied through action or inaction." Id. (internal citations omitted). "Thus, an offeree, knowing that an offer has been made to him but not knowing all of its terms, may be held to have accepted, by his conduct, whatever terms the offer contains." Id. (quoting Windsor Mills, Inc. v. Collins & Aikman Corp., Cal. App. 3d 987, 991 (1972)) (internal quotation marks omitted). "Courts must determine whether the outward manifestations of consent would lead a reasonable person to believe the offeree has assented to the agreement." Id. (citing Meyer v. Benko, 55 Cal.App.3d 937, 942-43 (1976)).
Here, Burrola argues there was no mutual assent to the arbitration provision because it was buried in the Employment Packet and was not distinguished as a separate contract that called attention to the arbitration provisions. (Doc. No. 9 at 7.) In support, Burrola cites Sparks v. Vista del Mar Child & Family Services where the Court held there was no mutual assent regarding the arbitration agreement because the agreement to arbitrate was buried in the handbook and not distinguished from the other provisions." Sparks v. Vista del Mar Child & Family Services, 207 Cal.App.4th 1511, 1519 (2012). Moreover, he asserts that he was led to believe that the documents were merely "general documents" and not something he should "concern" himself with.
U.S. Security responds that Burrola admittedly went through
The Court is unpersuaded by Burrola's argument. First, on November 21, 2016, Burrola signed the Agreement which states: ". . .By accepting or continuing employment with the Company, I understand that the Company and I mutually agree to resolve in binding arbitration any claim that, in the absence of this Agreement, would be resolved in a court under applicable state or federal law." (Doc. No. 3-2 at 9-11.) The Agreement was clearly labeled "U.S. Security Associates Dispute Resolution Agreement" across the top of the page, clearly and unambiguously identifies itself as a contract, and its terms clearly state a mutual agreement for both Plaintiff and Defendant to arbitrate their disputes. (Doc. No. 3-3, Ex. 1 to Lopez Decl.) Moreover, U.S. Security requires all new employees to review and sign the Agreement during the hiring process. Id. ¶ 4. The record reflects that Burrola conceded that at the time of his hiring, he understood one of the documents he signed in the packet was a three-page standalone document titled "Dispute Resolution Agreement." (Doc. No. 9-1, Burrola Decl., ¶¶ 16, 8.) The Court notes that Christine Badua, H.R. Administrator of U.S. Security, also signed the Agreement on behalf of U.S. Security. Id. at 11.
The Court further finds Sparks distinguishable, rather than comparable to this case. As stated supra, Burrola conceded that he was aware one of the documents he signed was the Agreement.
Accordingly, as both of these threshold questions have been answered in the affirmative, the Court must compel enforcement of the arbitration agreement according to its terms, unless the Agreement may be invalidated according to a traditional contract defense.
Burrola argues that even if an arbitration agreement exists, it is unenforceable because it is both procedurally and substantively unconscionable. (Doc. No. 9 at 6.)
Under California law, a court may find a contract unenforceable or limit a clause of the contract if it is found to be unconscionable at the time it was made. Cal. Civ. Code § 1670.5(a). "A contract or provision, even if consistent with the reasonable expectations of the parties will be denied enforcement if, considered in its context, it is unduly oppressive or unconscionable." Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 113 (2000). A finding of unconscionability requires both a procedural and substantive component, though they "need not be in the same degree." Id. at 114.
Procedural unconscionability concerns the level of oppression and surprise involved in the negotation of the agreement. Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 922 (9th Cir. 2013). Oppression addresses the relative bargaining power of the parties, while surprise addresses the degree of clarity of the agreement and the expectations of the weaker party. Id.
Burrola argues that the agreement is procedurally unconscionable because: (i) Unequal Bargaining Power, and (if) Unfair Surprise. (Doc. No. 9 at 11.) The Court evaluates each argument in turn.
Burrola argues that because he was provided with the arbitration agreement on a take-it-or-leave-it basis, he was not afforded the opportunity to negotiate, and that establishes procedural unconscionability. He cites California precedent for the proposition that "oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice." Wayne v. Staples, Inc., 135 Cal.App.4th 466, 480 (2006). The Court also notes other cases where the Ninth Circuit has found take-it-or-leave-it contracts to be procedurally unconscionable. See Chavarria, 733 F.3d at 923 (finding procedural unconscionability where an employee is presented with a contract drafted by an employer as a condition of employment and on a take-it-or-leave-it basis); see also Tagliabue, 2015 WL 8780577, at *5 (same).
Here, Burrola is not in a position to change the terms of the arbitration agreement and it is clear that had he not signed the arbitration agreement, then his offer would likely have been rescinded. (See Doc. No. 9-1 [Burrola Decl. ¶¶ 7, 12, 15].) The Court finds that this fact indicates some "oppression" was involved in the agreement because Burrola was not in a position to negotiate. Thus, the Court considers the fact Burrola wasn't provided with an opportunity to negotiate the terms of the agreement as an indication of some procedural unconscionability.
Burrola contends that the Agreement was "buried" within the fifteen to twenty-page employment packet of documents covering various provision for work, benefit information, and other items. (Doc. No. 9 at 10-11.) By U.S. Security "burying" the Agreement, Burrola contends he was unfairly surprised upon learning he was precluded from bringing suit in this matter. Id. at 11.
The Court will briefly examine this issue as it was already addressed supra. Here, Burrola was advised of the arbitration clause during his on boarding. Unfair surprise relates to "the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms." Armendariz, 24 Cal. 4th at 114. The Arbitration Agreement, a three-page document (see Doc. No. 3-2 [Exhibit A] at 8-11), provides in pertinent part:
(Doc. No. 3-1 at 5-6.) Moreover, per Rosa Lopez, Human Resources Specialist for U.S. Security, U.S. Security's new hire policies and procedures requires:
(See Doc. No. 11-1 [Ex. 1, Lopez Decl. ¶¶ 1, 5] at 5-6.)
While Burrola was prohibited from taking U.S. Security's new hire documents home to review, he could have requested more time to review them after the orientation had concluded.
Accordingly, the Court finds that Burrola was not subjected to any unfair surprise; but the take-it-or-leave-it nature of the agreement establishes some degree of procedural unconscionability. Nguyen v. Applied Med. Res. Corp., 4 Cal. App. 5th 232, 248 (Ct. App. 2016) (finding "some degree" of procedural unconscionability because arbitration agreement was presented as an adhension contract). With that in mind, the Court proceeds to consider if the agreement was substantively unconscionable,
"A contract is substantively unconscionable when it is unjustifiably one-sided to such an extent that it shocks the conscience." Chavarria, 733 F.3d 916, 922 (9th Cir. 2013). Burrola argues that the arbitration agreement is substantively unconscionable because it: (i) Prevents an Employees from Recovering Attorneys' Fees, and (if) it lacks Modicum of Bilaterality. (Doc. No. 9 at 11.)
Burrola argues the Agreement prevents the recovery of attorneys' fees for PAGA representative claims because the Agreement "does not explicitly provide for attorneys' fees, stating that `the parties shall be responsible for their own attorneys' fees and costs'." (Doc. No. 9 at 12.) U.S. Security disputes this arguing the "Agreement makes explicitly clear that all remedies available in court are also available in arbitration." (See Doc. No. 3-3 [Ex. 1 to Lopez Deck] at 9.)
The Court finds Burrola's argument unavailing. While he correctly states the Agreement, as written, does not specifically provide for attorneys' fees in arbitration, the law is well settled that "[a]ny employee who prevails in any action shall be entitled to an award of reasonable attorney's fees and costs." Cal. Labor Code § 2699(g)(1). Thus, to the extent the prevailing party can recover attorneys in court, they can do so in arbitration. As such, the fact that it is not be explicitly described in the terms of the agreement does not invalidate the Agreement. Furthermore, the Court notes that the Agreement also provides that U.S. Security will pay "the arbitrator's fees and expenses, any costs of the hearing facility, and any costs of the arbitration service." (Doc. No. 3-1 at 10.)
In sum, Burrola's claim is a moot issue because the law provides the prevailing party the right to recovery attorneys' fees.
Burrola next argues the Agreement is not bilateral because there was zero opportunity for him to negotiate the terms of employment under the Agreement. (Doc. No. 9 at 11.) The Court disagrees. In Armendariz, the California Supreme Court held that an arbitation agreement was unconscionable if it required the employee to arbitrate his claims but exempted the employer from arbitrating his claims-thus lacking a "modicum of bilaterality." Armendariz, 24 Cal. 4th at 120. The agreement in this case is distinguishable from Armendariz because it requires both parties to arbitrate employment disputes and is thus sufficiently bilateral.
Specifically, the Agreement explicitly states: "This Agreement is supported by the parties' mutual promises to submit any claims they may have against the other to final and binding arbitration, rather than to have them decided in court before a judge or jury." (Doc. No. 3-1 at 8.) Moreover, the agreement goes on to define what types of claims would not mutually require arbitration.
As unconscionability is determined on a sliding scale between procedural and substantive unconscionability, even a strong showing of procedural unconscionability requires at least some substantive unconscionability for the contract term to be invalid. In this case, Burrola is unable to prove the existence of substantive unconscionability and only barely establishes the existence of procedural unconscionability. Therefore he fails to meet his burden of proving the arbitration provision is unconscionable under California law. Because Burrola also falls short of demonstrating the arbitration provision is invalid for lack of mutual assent, the Court finds the Agreement valid and enforceable.
Burrola contends that the demand to arbitrate his fourteenth cause of action for relief under PAGA is "unenforeable." (See Doc. No. 11.) U.S. Security concedes that if a PAGA claim is plead here, it cannot be subject to arbitration, but that does not prevent the arbitrability of Burrola's remaining claims. (Doc. No. 11 at 2.) The Court agrees. See Jacobson v. Snap-on Tools Co., 2015 WL 8293164, at *5 (N.D. Cal. Dec. 9, 2015) (noting that the plaintiff's "non-class, representative claim for civil penalties under PAGA is not subject to arbitration. [The plaintiff's] right to bring representative PAGA claims is not waived by the Agreement or preempted by the FAA."); see also Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015); Iskanian v. CIS Transp, L.A., LLC, 327 P.3d 129 (Cal. 2014). As such, Burrola's PAGA claim is not subject to arbitration.
Burrola argues that it would be inappropriate to stay the PAGA claim pending resolution of his individual claims because no individual claims remain.
"A party is only entitled to a stay pursuant to section 3 as to arbitrable claims or issues." Winfrey v. Kmart Corp., 692 F. App'x 356, 357 (9th Cir. 2017) (citing Leyva v. Cert. Grocers of Cal., Ltd. 593 F.2d 857, 863 (9th Cir. 1979). "As to non-arbitrable claims and issues, however, the district court has discretion whether to stay the litigation pending arbitration." Id. A trial court may grant a stay "pending resolution of independent proceedings which bear upon the case" where "it is efficient for [the courts] own docket and the fairest course for the parties." Leyva, 593 F. 2d at 863.
Although a stay is mandatory as to Burrola's arbitrable claims, the Court has the discretion to decide whether to stay the proceedings as to Burrola's non-arbitrable PAGA claim. The Court finds that a stay is proper in these circumstances. First, the factual issues that will be resolved in arbitration clearly "bear upon [the instant] case" because these facts will determine U.S. Security's liability for Burrola's PAGA claim. See Id. Thus, it is in the interest of efficiency to grant a stay in order to avoid duplicative proceedings as to the same issues. Second, the Court is not convinced that there are any potential plaintiff's who will be prejudiced by the stay. Although PAGA claims are necessarily representative actions, they are not necessarily class actions. Arias v. Super. Ct., 209 P.3d 923, 930 n.5 (2009). Moreover, while Burrola seeks to represent a class of employees who were harmed by U.S. Security's conduct, (see FAC ¶ 7) he has not alleged sufficient facts to support his contention that this is a class claim. Rather, the alleged facts and the nature of the claims appear highly individualized. Thus, no-unfair prejudice will result from granting the stay.
In light of the foregoing analysis granting U.S. Security's Motion to Compel Arbitration of Burrola's individual claims, the Court
Burrola argues that having complied with all of the requirements set forth in Labor Code section 2699.3 to commence a PAGA claim in the FAC, he is entitled to recover PAGA penalties as a matter of right pursuant Labor Code sections 2698 and 2699. (Doc. No. 9 at 8.)
U.S. Security, contends the argument lacks merit as there is yet to be a PAGA claim added to the suit, and in the event one is, it should be stayed pending the outcome of arbitration of Burrola's individual claims as any PAGA claim arises entirely off of the same general set of facts alleged in the initial complaint. (See Doc. No. 11 at 2.)
"[A] PAGA action is a statutory action in which the penalties available are measured by the number of Labor Code violations committed by the employer." Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 435 (9th Cir. 2015). The employees bringing the action do so as agents or proxies of the state's labor law enforcement agencies. Id. PAGA's civil penalties are $100 for each aggrieved employee per pay period for the initial violation and $200 per employee for each subsequent pay period. Cal. Lab. Code § 2699(f)(2). "[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75% to the Labor and Workforce Development Agency . . . and 25% to the aggrieved employees." Id. § 2699(i); see Urbino, 726 F.3d at 1121. "Any employee who prevails in any action shall be entitled to an award of reasonable attorney's fees and costs." Cal. Lab. Code § 2699(g)(1). Any agreement to waive PAGA claims is an agreement to limit the penalties plaintiff-employees may recover on behalf of the state. Id. at 436. Because a settlement of PAGA claims settles claims that could otherwise be brought by the state, the trial court must "review and approve" any settlement of PAGA claims. Cal. Lab. Code § 2699(1)(2).
Having determined the arbitration of the individual claims is appropriate, the Court likewise stays Burrola's claim for civil penalties under PAGA.
The Court finds that because Burrola agreed to arbitrate his individual claims under the terms of the Agreement, he is required to do so in this matter. Therefore, for the reasons set forth above, the Court
At the time the case was removed, this Court had federal jurisdiction on the basis of diversity of citizenship. Burrolla has moved to remand arguing that its post-removal amendments dropping the twelfth and thirteenth claims for relief has the effect of reducing the amount in controversy below the $75,000 jurisdictional threshold. However, the propriety of removal is determined solely on the basis of the pleadings filed in the state court at the time of removal. Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006). Post-removal amendments have no bearing on the propriety of removal. Id. Therefore, this Court continues to have federal diversity jurisdiction.
Accordingly, the Court Orders Burrola's Motion to Remand hereby
In accordance with the conclusions set forth above, the Court
"
Id.
"This Agreement does not apply to any claims by me for workers' compensation benefits, unemployment insurance benefits or under a benefit plan where the plan specifies a separate arbitration procedure. The Agreement also does not apply to any claims filed with an administrative agency which are not legally subject to arbitration under this policy, or which are otherwise expressly prohibited by law from being subject to arbitration under this policy. This Agreement also does not preclude either party from applying to a court for a temporary restraining order or preliminary injunction to the extent provided by California Code of Civil Procedure section 1281.8." The Court notes that none of these exceptions apply to the case at hand. (Doc. No. 3-1 at 8-11.)
