Duane Morris Private Attorneys General Act Review – 2024

state its intent to file a motion to compel arbitration. Apria proceeded to answer the complaint without raising arbitration as an affirmative defense. The plaintiff then moved for judgment on the pleadings as to particular affirmative defenses, with Apria stating its position that it was not the plaintiff’s employer and that it planned to file cross complaints against third parties who employed the plaintiff and other putative class members. In May 2021, after discovery in the case, the plaintiff filed a motion for class certification and a dispositive motion, which Apria opposed. During discovery, Apria obtained a copy of the arbitration agreement and an admission from the plaintiff that he signed it. The trial court granted class certification over Apria’s argument that some class members were subject to arbitration agreements. In June 2021, Apria, still not in possession of any copy of the arbitration agreement between the plaintiff and Spoke, demanded that the plaintiff submit his claims to arbitration. Just after class certification was granted, in September 2021, Apria filed a motion to compel arbitration arguing that the claims were intertwined with the plaintiff’s employment with Spoke and that the arbitration agreement therefore had to apply to Apria. The plaintiff asserted the right to arbitration was waived, and that his attorneys had expended substantial time in litigation on issues that would not have been necessary had the arbitration issue been raised earlier. The trial court denied the motion to compel because the right to arbitration was waived. On appeal, the Court of Appeal affirmed. As the Court of Appeal made clear, Apria’s counsel made numerous critical mistakes. First, it did not assert arbitration as an affirmative defense in its answer. Second, it did not seek a stay of collateral case issues in order to first fully vet the arbitration issue. Third, even after receiving a copy of the arbitration agreement and an admission that the plaintiff signed the agreement, Apria waited for months until after the class certification briefing and decision to file its motion to compel arbitration. The Quintero case highlights the importance, especially in cases of potential joint employer liability, of making the arbitration issue a priority at the case’s outset. If one employer entity has an arbitration agreement with the plaintiff, the defendant’s priority should be to obtain a copy of the agreement immediately, to assess its application to the case, and to move to compel arbitration at the earliest possible juncture. In Alberto, et al. v. Cambrian Homecare , 2023 Cal. App. Unpub. LEXIS 2223 (Cal. App. April 19, 2023), in connection with her hire, the plaintiff signed an arbitration agreement and a confidentiality agreement that required her to maintain the confidentiality of employee compensation information. If she failed to do so, the confidentiality agreement provided that the employer was entitled to seek injunctive relief in court and that the prevailing party would be entitled to attorneys’ fees. When the plaintiff filed a wage and hour class action, her employer sought to compel arbitration and to enforce the arbitration agreement’s class action waiver. Unfortunately, the employer neglected to itself sign the arbitration agreement, and the trial court found this problematic, concluding no agreement had been formed. Alternatively, the trial court deemed the arbitration agreement a contract of adhesion with some procedural unconscionability, and found the confidentiality agreement was substantively unconscionable because it permitted the employer to obtain an injunction in court without posting a bond or showing irreparable harm, and also because it restricted the plaintiff’s ability to discuss compensation. Additionally, a wholesale waiver of the PAGA claims contained in the arbitration agreement was also unconscionable. Because the two agreements were seen as part of the same transaction, the trial court deemed them a single contract permeated by unconscionable terms. On appeal, the Court of Appeal affirmed, but elected not to opine on whether the employer’s failure to sign the arbitration agreement was material. Instead, the Court of Appeal agreed with the trial court’s assessment that the agreement, together with the confidentiality agreement, was permeated with unconscionable terms. Although the employer argued that the confidentiality agreement was irrelevant and should not be considered in assessing the enforceability of the separate arbitration agreement, the Court of Appeal disagreed. It cited the general rule that papers related to the same subject matter and executed at the same time are to be construed together as one contract. Finally, in Decker, et al. v. Postmates, Inc., 2023 Cal. App. Unpub. LEXIS 5610 (Cal. App. Sept. 25, 2023), the defendant an online delivery service, operated a platform connecting consumers with local merchants and couriers. The plaintiffs were couriers, and alleged that the defendant misclassified them as independent contractors in violation of the California Labor Code and the PAGA. As part of their agreement

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