United States District Court, S.D. California
ORDER ON MOTION FOR RECONSIDERATION
HONORABLE LARRY ALAN BURNS UNITED STATES DISTRICT JUDGE
an employment case brought by Jose Tajonar against Dish
Network California Service Corporation, Dish Network
Corporation, Dish Network Service L.L.C., and Echosphere
L.L.C. (Collectively “Dish”). Dish moved to
compel arbitration and dismiss Tajonar’s class and
representative claims. (Docket no. 3.) The Court initially
granted Dish’s motion. (Docket no. 33.) Then it
requested briefing on Tajonar’s motion for
reconsideration. (Docket no. 35.)
agrees that his individual claims should be arbitrated.
(Docket no. 45 at 2.) He contends, however, that his class
and representative claims shouldn’t be dismissed.
(Id.) Instead, he contends, the arbitrator should
decide whether his class and representative claims are
arbitrable, not the Court. (Id.)
of Class Claims
availability of class arbitration is a question of
arbitrability to be decided by the Court unless the parties
clearly and unmistakably provide otherwise.” (Docket
no. 33 at 2–3.) The parties’ arbitration
agreement refers to the AAA National Rules for the Resolution
of Employment Disputes, and the AAA’s Supplementary
Rules for Class Arbitration provide that an arbitrator will
decide whether the applicable arbitration clause permits the
arbitration to proceed against a class. (Docket no. 3,
Exhibit 3-E; Docket no. 45, Exhibit 3 at ¶ 3.) Based on
this provision in the AAA’s Supplementary Rules,
Tajonar maintains that the parties did sufficiently
elect to defer to the arbitrator on the availability of class
arbitration. (Docket no. 45 at 6.)
support for Tajonar’s argument. See, e.g.,
Accentcare, Inc. v. Jacobs, 2015 WL 6847909, at *3 (N.D.
Cal. Nov. 9, 2015). Accentcare pointed out that the
AAA’s National Rules provide that the “arbitrator
shall have the power to rule on his or her own jurisdiction,
including any objections with respect to the existence, scope
or validity of the arbitration agreement.” Id.
And the AAA’s Supplementary Rules provide that
“the arbitrator shall determine as a threshold matter,
in a reasoned, partial final award on the construction of the
arbitration clause, whether the applicable arbitration clause
permits the arbitration to proceed on behalf of or against a
class.” Id. Thus, because the arbitration
agreement at issue there incorporated the National Rules, the
court concluded that there was “a clear and
unmistakable agreement to have the arbitrator decide
questions regarding the arbitrability of class-wide
claims.” Id.; see also Oracle Am., Inc. v.
Myriad Grp. AG, 724 F.3d 1069, 1074 (9th Cir. 2013)
(“Virtually every circuit to have considered the issue
has determined that incorporation of the [AAA’s]
arbitration rules constitutes clear and unmistakable evidence
that the parties agreed to arbitrate arbitrability.”).
Court agrees with the reasoning in Accentcare.
Tajonar’s class claims shall be presented to an AAA
arbitrator to decide if they should be arbitrated.
of Representative Claims
Court initially held that Tajonar can’t arbitrate his
Private Attorneys General Act (“PAGA”) claims on
a representative basis. (Docket no. 33 at 3.) After the Court
issued its order, however, the Ninth Circuit issued
Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d
425 (9th Cir. 2015). There, the Court concluded that
“[a]greements waiving the right to bring
‘representative’ PAGA claims . . . are
unenforceable under California law.” Id. at
431. And it remanded the case for the district court to
decide whether the parties had agreed to arbitrate or
litigate the representative PAGA claims. Id. at 440.
As with the class claims, the Court concludes that
Tajonar’s representative PAGA claims shall be presented
to an AAA arbitrator to decide if they should be arbitrated.
motion for reconsideration is GRANTED. All of Tajonar’s
claims shall be presented to an AAA arbitrator to decide if
they should be arbitrated. This case is STAYED while the
arbitrator decides on the availability of arbitration of
Tajonar’s class and representative claims. The
arbitrator shall make this decision by September 26, 2016.
Tajonar shall notify the Court within 14 calendar days after
the arbitrator makes that decision. This case will be
dismissed if the arbitrator decides that all of the claims
are subject to arbitration, or if Tajonar doesn’t