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Olvera v. El Pollo Loco

April 27, 2009

CARLOS OLVERA ET AL., PLAINTIFFS AND RESPONDENTS,
v.
EL POLLO LOCO, INC., DEFENDANT AND APPELLANT.



APPEAL from an order of the Superior Court of Los Angeles County, Peter D. Lichtman, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC341635).

The opinion of the court was delivered by: Croskey, J.

CERTIFIED FOR PUBLICATION

El Pollo Loco, Inc. (El Pollo Loco), appeals the denial of its motion to compel arbitration of a complaint filed by Carlos Olvera. The trial court determined that the employment arbitration agreement was procedurally and substantively unconscionable. El Pollo Loco contends (1) the arbitration agreement is neither procedurally nor substantively unconscionable; (2) the class arbitration waiver is not unenforceable under the rule from Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry); and (3) the overruling of its evidentiary objections was error. We conclude that El Pollo Loco has shown no prejudicial error and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Olvera was the general manager of a restaurant owned and operated by El Pollo Loco. El Pollo Loco distributed written materials to its employees in June 2003. The first page of the materials bore an El Pollo Loco logo with no other text. The second page showed a chart entitled "BENEFITS," with six columns headed "Part time Crew," "Full time crew 6 months," "Full time crew 18 months," "Shift Supervisor," "Restaurant Manager," and "General Manager." Each column listed benefits such as "On-duty meal discount 50%" or "Free on-duty meals," "Off-duty meal discount 25%," "Employee Assistance Program," "401(k)," and the like. The third page stated "What‟s New?" in large type and "Look inside for answers," in both English and Spanish, with a drawing of people looking up at a bulletin board.

A series of pages resembling the "What‟s Next?" page then followed. Each page in the series had large type, a drawing, and text in both English and Spanish. Each of those pages presented a question or statement followed by an answer or explanation. Those pages explained the requirements for full-time status and stated that, beginning June 5, only full-time employees would accrue vacation time. The last page in the series stated, "What is the new Dispute Resolution Policy?" followed by an explanation:

"Any employee with a work-related problem should contact the General Manager, Area Leader, Human Resources Manager or other management person to resolve the problem. If all attempts to resolve the problem are unsuccessful, the new policy requires that the employee and the company use a mediator to assist them in reaching a resolution. See your General Manager for additional details." There was no mention of arbitration.

Those pages were followed by a page showing a paycheck stub and stating in English and Spanish that, beginning June 18, paychecks would show "your corrected Vacation Balance and correct Weekly Average Hours."

Following that was a series of pages headed "El Pollo Loco-Policies and Procedures Manual," in English only, each identifying a particular policy by title and stating an effective date of June 5, 2003. The text on those pages appeared in smaller -sized type, and there were no drawings. The titles were "VACATION," followed by "REST AND MEAL BREAKS-NON-EXEMPT EMPLOYEES," and finally "DISPUTE RESOLUTION."

The dispute resolution policy stated that all employment-related disputes must be resolved through binding arbitration. It stated that the policy was governed by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) and that a neutral arbitrator would be selected by mutual agreement of the parties. It stated procedures for demanding arbitration and that the parties "may agree" to mediation, but that the sole means to resolve any dispute not resolved through other means was through arbitration. It also stated that the parties would have the right to conduct discovery and bring motions in an arbitration as provided by the Federal Rules of Civil Procedure, but that class arbitration was prohibited.

The last page of the materials was a form headed "ACKNOWLEDGMENT," stating in English and Spanish: "I have received, understand and agree to be bound by the material in this Mid-Year Policy Update, which includes clarification of full and part-time status, and policies on Vacation, Rest and Meal Periods, Open Communication and Dispute Resolution," followed by a signature line. Olvera signed the form on June 13, 2003.

2. Trial Court Proceedings

Salvador Amezcua filed a class action complaint against El Pollo Loco in October 2005. He alleged that he was employed as general manager of a restaurant owned and operated by El Pollo Loco. He alleged that he and other El Pollo Loco general managers were treated as exempt managerial workers but spent the majority of their time performing nonmanagerial tasks, that they were wrongfully denied overtime compensation, and that they were unable to take meal breaks. He also alleged that El Pollo Loco‟s incentive compensation system resulted in deductions from the employees‟ wages for losses that should have been borne by the employer. The court determined that ...


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