California Court of Appeals, Fourth District, First Division
[REVIEW GRANTED bye CAL. SUPREME COURT]
[As modified Mar. 12, 2015.]
Petition for writ of mandate from an order of the Superior Court of San Diego County No. 37-2014-00012338- CU- MC-NC, Earl H. Maas III, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Jason Wade Kearnaghan, Cassidy M. English and Michael T. Campbell for Petitioner.
No appearance for Respondent.
The Dion-Kindem Law Firm, Peter R. Kindem, The Blanchard Law Group, Lonnie C. Blanchard and Jeffrey D. Holmes for Real Party in Interest.
Petitioner Universal Protection Service, L.P. (Universal) petitions for a writ of mandate and/or prohibition challenging the superior court's order granting real party in interest Floridalma Franco's demand to arbitrate her employment-related disputes with Universal and ruling the arbitrator would decide the arbitrability of Franco's class action claims. Universal contends the court legally erred in its ruling because the parties' arbitration agreement did not clearly and unmistakably submit arbitrability questions to the arbitrator, and thus it was for the superior court to decide whether the agreement authorized class and/or representative arbitration.
We conclude the court erred by granting Franco's petition in reliance on Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444 [156 L.Ed.2d 414, 123 S.Ct. 2402] (Bazzle). Nevertheless, we agree with Franco that the parties' reference to American Arbitration Association (AAA) rules, which unambiguously state that the arbitrator is to decide whether the parties' arbitration agreement permits class arbitration, constitutes clear and unmistakable evidence of their intent that the arbitrator decide this issue, which is a threshold question of arbitrability. Because the trial court reached the correct conclusion, we deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, Franco, then a Universal employee, signed an arbitration agreement providing that she and Universal agreed subject to some exceptions to arbitrate "any and all disputes or claims" between them, including disputes relating to their employment relationship and its termination, and disputes over wage and hour violations (the arbitration agreement). The arbitration agreement states that the arbitration is to be conducted "in accordance with the National Rules for the Resolution of Employment Disputes set forth by the [AAA]."
In March 2014, Franco on behalf of herself and others similarly situated filed a claim for arbitration with the AAA setting out 11 causes of action based on Universal's alleged violations of the Labor Code and wage orders for not paying its security guards wages for regular and overtime hours, not providing required meal and rest breaks, not reimbursing for employment related expenses, and not providing itemized wage statements. In part, Franco
sought to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. ...