Opinion
A166610
10-03-2023
JESSICA GENTRY, Plaintiff and Respondent, v. ROBERT HALF INTERNATIONAL, INC., Defendant and Appellant.
NOT TO BE PUBLISHED
(City &County of San Francisco Super. Ct. No. CGC-15-544878)
HIRAMOTO, J. [*]
In 2015, plaintiff Jessica Gentry filed the present action against her former employer, Robert Half International, Inc. (Robert Half), alleging several causes of action for Labor Code violations and an unfair competition law (UCL) claim (Bus. &Prof. Code, § 17200 et seq.). Gentry brought her claims as an individual and putative class representative seeking damages, and also in a representative capacity under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) seeking civil penalties for Labor Code violations suffered by her or by other employees. Robert Half moved to compel arbitration of her individual claims under the Labor Code and to stay the remaining claims, including her PAGA claim. The trial court denied the petition on the ground that the arbitration agreement contained an invalid waiver of Gentry's right to bring a PAGA claim in any forum, which under a severability clause that voided the arbitration agreement if any provision was determined to be invalid, rendered the entire agreement to arbitrate unenforceable. In 2018, this court affirmed the trial court's order. (Gentry v. Robert Half Int'l, Inc. (A147553, Aug. 14, 2018) 2018 Cal.App.Unpub. LEXIS 5506 [nonpub. opn.] ("Gentry I").)
All statutory references are to the Labor Code unless otherwise noted.
This appeal is from the denial of Robert Half's second petition to compel arbitration, which it filed in October 2022. Robert Half argued that the parties' arbitration agreement must be reinterpreted in light of the United States Supreme Court decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S.; 142 S.Ct. 1906 (Viking River). The trial court denied the petition, finding that Viking River neither altered the court's prior interpretation of the agreement nor affected the operation of the severability clause in this case. Robert Half timely appealed. After briefing was complete, Gentry filed a request for sanctions. We find no error and affirm the order denying the petition to compel arbitration. We also deny Gentry's motion for sanctions.
In light of the court's observation in Westmoreland v. Kindercare Educ. LLC (2023) 90 Cal.App.5th 967, 973 (Westmoreland) that" 'an order denying a renewed motion,' including a renewed motion to compel arbitration, 'is not appealable,'" we requested supplemental briefing on whether the order denying Robert Half's renewed petition to compel arbitration was an appealable order. Having reviewed the supplemental briefs, we conclude that the order is appealable insofar as Robert Half altered its claim for relief and now seeks to compel arbitration of Gentry's individual PAGA claim. (Code. Civ. Proc., § 1008, subd. (b) [A party renews a motion by making a "subsequent application for the same order [based on] new or different facts, circumstances, or law."]; California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43 [In determining whether a second motion is a renewal of a previous motion,"' "[t]he nature of a motion is determined by the nature of the relief sought, not by the label attached to it."' "].)
Legal Background
"PAGA authorizes 'an aggrieved employee,' acting as a proxy or agent of the state Labor and Workforce Development Agency (LWDA), to bring a civil action against an employer 'on behalf of himself or herself and other current or former employees' to recover civil penalties for Labor Code violations they have sustained." (Adolph v. Uber Techs., Inc. (2023) 14 Cal.5th 1104, 1113, quoting § 2699, subd. (a) (Adolph).) "A PAGA claim for civil penalties '" 'is fundamentally a law enforcement action.'"' [Citation.] 'The "government entity on whose behalf the plaintiff files suit is ....the real party in interest." '" (Id. at p. 1117; quoting Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.) "An employee who brings a PAGA action to recover civil penalties acts' "as the proxy or agent"' of the state. [Citations.] 'PAGA is designed primarily to benefit the general public, not the party bringing the action.'" (Id. at p. 1116.)
In Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 (Iskanian), the California Supreme Court held that "a predispute categorical waiver of the right to bring a PAGA action is unenforceable." (Adolph, supra, 14 Cal.5th at p. 1117.) In addition, Iskanian held that "whether or not an individual claim is permissible under the PAGA," where an employment agreement "compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law." (Iskanian, supra, 59 Cal.4th at p. 384.) Finally, the court held that the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) "does not preempt a state law that prohibits waiver of PAGA representative actions in an employment contract." (Iskanian, at p. 360.) Following Iskanian, "various courts held that employers may not require employees to 'split' PAGA actions in a manner that puts individual and non-individual components of a PAGA claim into bifurcated proceedings." (Adolph, supra, 14 Cal.5th at p. 1118.)
In Viking River, supra, 142 S.Ct. at page 1924, the United States Supreme Court held that "the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and representative claims through an agreement to arbitrate." The court explained that" 'individual'" PAGA claims are those which are "premised on Labor Code violations actually sustained by the plaintiff" and non-individual PAGA claims are those that arise "out of events involving other employees." (Id. at p. 1916.) While the "wholesale waiver" of the right to bring a representative PAGA action is impermissible as a matter of state law, contractual agreements to arbitrate only "individual PAGA claims for Labor Code violations that an employee suffered" are enforceable. (Id. at pp. 1923, 1925; Adolph, supra, 14 Cal.5th at p. 1119 ["Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA."].) Based on the severability clause in the agreement before it, which provided that if the waiver provision is invalid in some respect, any portion of the waiver that remains valid must still be "enforced in arbitration," the court in Viking River concluded that the plaintiff's individual PAGA claim must be severed from the non-individual claim and resolved by arbitration. (142 S.Ct. at p. 1925.)
In Adolph, supra, 14 Cal.5th 1104, the court confirmed that the Supreme Court in Viking River left "undisturbed" the holding in Iskanian that a "predispute categorical waiver of the right to bring a PAGA action is unenforceable." (14 Cal.5th at p. 1117.) In addition, the Supreme Court left "intact" the rule that "[w]here ... an employment agreement compels the waiver of representative claims under the PAGA, it is contrary to public policy and unenforceable as a matter of state law." (Id. at p. 1118; see also Nickson v. Shemran, Inc. (2023) 90 Cal.App.5th 121 [Viking River did not disturb Iskanian's rule that an arbitration agreement purporting to waive an employee's non-individual claims is unenforceable as a matter of state law].)
The court in Viking River also suggested that once individual and non-individual claims are severed and the individual claim referred to arbitration, the non-individual claim would have to be dismissed because the plaintiff would no longer have standing to assert that claim. (Id. at p. 1925.) The court reasoned, "PAGA provides no mechanism to enable a court to adjudicate nonindividual PAGA claims once an individual claim has been committed to a separate proceeding." (Id. at p. 1925.) In Adolph, supra, the court rejected this interpretation of the PAGA standing requirements. The court held, as a matter of state law, that an aggrieved employee who has been compelled to arbitrate claims under PAGA that are "premised on Labor Code violations actually sustained by" the plaintiff, maintains statutory standing to pursue "PAGA claims arising out of events involving other employees" in court. (Adolph, supra, 14 Cal.5th at p. 1114, quoting Viking River, supra, at p. .) In light of our conclusion below that the petition to compel arbitration was properly denied, we do not reach the parties' arguments regarding standing.
Factual and Procedural Background
A. Gentry's Complaint
Robert Half is a "specialized staffing services firm" and Gentry worked for Robert Half as a temporary employee for several businesses, completing her last assignment in November 2014. In her first amended complaint, Gentry alleged that Robert Half failed to provide her with proper wage statements and to pay all wages owed to her because she was not paid compensation for the time that she was required to spend preparing for potential job assignments. The complaint alleges causes of action for (1) failure to pay wages, (2) failure to provide proper wage statements, (3) failure to pay final wages and (4) unfair business practices, and a fifth cause of action seeking penalties under PAGA for state labor law violations. Gentry filed her complaint on behalf of a putative class of terminated Robert Half employees and alleged that her lawsuit was also "a representative/qui tam type action," brought under PAGA "on behalf of the State of California and all current or former [Robert Half] employees who worked in California within the maximum allowable period of this claim."
B. The Arbitration Agreement
While employed by Robert Half, Gentry did not expressly opt out of its standard arbitration policy and thereby agreed to the terms of a "Mutual Agreement to Arbitrate Claims" (the arbitration agreement). The arbitration agreement is governed by the FAA and requires arbitration of all "covered claims." The two portions of the arbitration agreement relevant to this analysis are as follows.
The "Claims Covered by the Agreement" clause (covered claims clause) provides that the parties "mutually agree to resolve by arbitration, and only by individual arbitration, all claims, whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company and any other related or affiliated entity or person, including but not limited to parent, subsidiary and affiliated companies and employees or agents of any of them. I agree that no court or arbitrator shall determine any of my rights or claims on a class, collective or representative basis under any federal, state or local law. I understand, however, that I retain the right to bring claims in arbitration for myself as an individual." The clause continues, "Except as provided in the section titled 'Claims Not Covered by the Agreement', all claims that, in the absence of this Agreement, could have been brought in court are subject to arbitration, whether the claims derive from common law, statute, regulation, or otherwise, including but not limited to tort claims, contract claims, claims for wages, and claims for discrimination, retaliation and/or harassment. Except as otherwise provided in this Agreement, both the Company and I agree that neither of us shall initiate or prosecute any lawsuit in any way related to any claim covered by this Agreement, other than a lawsuit seeking temporary equitable relief in aid of arbitration."
The arbitration agreement also includes a "Construction and Severability" clause (severability clause), which provides in relevant part as follows: "If any provision of the section entitled 'Claims Covered by the Agreement' is determined to be void or unenforceable, then this Agreement shall be of no force or effect, because the parties intended to create an agreement to arbitrate individual disputes only."
C. Robert Half's First Motion to Compel Arbitration
In November 2015, Robert Half filed a motion to compel arbitration of the first four of Gentry's causes of action based on the alleged violations of the Labor Code. Robert Half acknowledged that Gentry's fifth cause of action, for civil penalties under PAGA, was not subject to arbitration and asserted that it should be bifurcated and litigated separately from her individual Labor Code claims. The trial court denied the motion to compel arbitration. The court concluded that the language, "I agree that no court or arbitrator shall determine any of my rights or claims on a class, collective or representative basis under any federal, state or local law," constituted a waiver of Gentry's right to bring "any PAGA claim." Applying the severability clause, the court concluded that the unlawful waiver voided the entire arbitration agreement.
On appeal, Robert Half conceded that the agreement contains an unenforceable provision waiving Gentry's right to bring a representative claim in any forum (which would waive her right to bring a PAGA claim in any forum) but argued that PAGA claims were expressly excluded from the scope of the agreement under the language of the covered claims clause. (Gentry I, supra, A147553, at pp. 6-7.) The court rejected Robert Half's contention that the covered claims clause did not include PAGA claims. (Id. at pp. 7-8.) The court found not only that the covered claims clause "contains a provision waiving the employee's right to bring a representative PAGA action in any forum," but further recognized the "scope of the agreement" as "broad and malleable, covering all conceivable disputes between the employee and [Robert Half]." (Id. at p. 12.) After finding the waiver unenforceable, the Gentry I court recognized that the severability clause operated to invalidate the agreement to arbitrate: "This provision invalidates the entire arbitration agreement because the 'Claims Covered' section of the [] Agreement contains a void and unenforceable waiver of the employee's right to bring a representative PAGA action." (Id. at p. 10.) Accordingly, this court affirmed the denial of the motion to compel by decision filed August 14, 2018. (Ibid.)
D. Robert Half's Second Motion to Compel Arbitration
In 2022, following the Supreme Court's decision in Viking River, Robert Half filed a second motion to compel arbitration, this time seeking to arbitrate Gentry's individual Labor Code claims and her individual PAGA claim, and to bifurcate and dismiss the remaining non-individual PAGA claim. It argued that the agreement does not contain a PAGA waiver at all. Robert Half claimed the arbitration agreement "addresses only Plaintiff's individual claims," asserting that, "[t]here is no provision in the Agreement barring Plaintiff from acting as a PAGA representative for others in a forum outside of the arbitration required of her individual claims under the agreement." It concluded that "the analysis applied by the Court is now obsolete because, under Viking River [], the Arbitration Agreement does not contain any 'waiver' of PAGA claims."
The trial court again denied the motion. The court disagreed with Robert Half's reinterpretation of the covered claims clause and reiterated its prior ruling that the clause had "a wholesale PAGA waiver that - by its own terms and not based on the abrogated portion of Iskanian - cannot be severed." Accordingly, the court concluded that the severability clause again precluded enforcement of any part of the agreement.
Robert Half timely filed a notice of appeal.
Discussion
1. Standard of Review
"Where, as here, the trial court's order denying a motion to compel arbitration 'rests solely on a decision of law,' the 'de novo standard of review is employed.'" (Gregg v. Uber Techs., Inc. (2023) 89 Cal.App.5th 786, 794.)
2. Viking River does not change the result in this case.
Robert Half does not dispute that Viking River does not alter the result in this case if the agreement is interpreted as including an invalid "wholesale waiver" of Gentry's right to bring a PAGA claim in any forum, as previously decided by this court in Gentry I, or alternatively, if the agreement is interpreted as including an invalid waiver of Gentry's right to bring a representative or non-individual PAGA claim in any forum. Under either interpretation, as a result of the differences in the severability clauses at issue here and in Viking River, the invalid waiver would render the entire agreement unenforceable.
Robert Half contends, however, that the agreement should be reinterpreted entirely as requiring arbitration of Gentry's individual claims only. It suggests that the waiver language, previously interpreted as a wholesale waiver of Gentry's right to bring a PAGA claim, is actually a lawful agreement that Gentry's individual PAGA claim will not be "adjudicated on certain 'bas[e]s'-i.e., in certain procedural ways (class, collective, or representative)." In other words, the use of the word "representative" in the covered claims clause permissibly waives "PAGA's claim-joinder mechanism," not Gentry's right to bring any PAGA claim in any forum. Robert Half argues that under such an interpretation, the severability clause is "not triggered" because the agreement does not include an invalid PAGA waiver.
A closer analysis of Robert Half's arguments demonstrates that its proposed interpretation of the agreement is tortured and unreasonable. Contrary to Robert Half's suggestion, Viking River does not support, let alone compel, its proposed reinterpretation of the agreement. As discussed below, we find no merit to these arguments based on a plain reading of the agreement.
Gentry contends that Robert Half's belated attempt to reinterpret the arbitration agreement is barred by the law of the case doctrine and alternatively, that the enforceability of the agreement has already been "determined" and under the language of the agreement, it is not subject to reconsideration. This matter is still pending, however, and the arbitrability of Gentry's PAGA claim has not been finally determined. Given the significance of Viking River to the matter before us, we also reject Gentry's argument that the law of the case doctrine precludes our reconsideration of the arbitration agreement. (See People v. Stanley (1995) 10 Cal.4th 764, 786-787 [law of the case doctrine "will not be adhered to . . . where . . . the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations"]; Carson Harbor Village, Ltd. v. City of Carson (2015) 239 Cal.App.4th 56, 70 ["An intervening Supreme Court decision . . . has for some time been considered an exception to the law of the case doctrine]".) As discussed below, however, we conclude that the arbitration agreement, even when reexamined in light of changing authority, remains unenforceable.
a. The waiver of the right to litigate covers not only Gentry's individual claims, but "all claims" and almost "all lawsuits."
Initially, Robert Half contends the reference to "any of my rights or claims," in the sentence, "no court or arbitrator shall determine any of my rights or claims on a class, collective or representative basis," applies only to individual claims, including Gentry's individual PAGA claim. Robert Half's suggestion, however, that Gentry I previously determined that "claims" included only Gentry's individual PAGA claim misstates the record. In Gentry I, Robert Half argued that PAGA claims were not covered by the agreement because "PAGA claims belong only to the State." This court rejected this argument, reasoning that an employee who brings a PAGA claim "is also personally aggrieved" and thereby has a "right as an individual to bring a PAGA claim." (Gentry I, at *13.) This court did not explicitly distinguish between individual and non-individual PAGA claims as those terms are now understood after Viking River and Adolph, however it recognized in substance that the agreement contained both "an agreement to arbitrate disputes that includes the employee's right to bring a PAGA claim as an individual who is personally aggrieved and is acting in his or her representative capacity," and "representative action waivers." (Gentry I, at *13.)
As the trial court correctly observed, Robert Half's suggestion that the agreement includes only Gentry's "personal" or individual claims is "at odds with the totality of the contract language." A plain reading of the covered claims clause illustrates the comprehensive scope of that clause. Two separate references to "all claims" in the covered claims clause establish a broad waiver of the right to litigate all PAGA claims, both individual and non-individual. The first reference to "all claims" in the covered claims clause states that the parties "mutually agree to resolve by arbitration, and only by individual arbitration, all claims, whether or not arising out of my employment (or its termination) ...." This sentence contains no limitation on the term "all claims." The second states, "Except as provided in the section titled 'Claims Not Covered by the Agreement,' all claims that, in the absence of this Agreement, could have been brought in court are subject to arbitration, whether the claims derive from common law, statute, regulation, or otherwise, including but not limited to tort claims, contract claims, claims for wages, and claims for discrimination, retaliation and/or harassment." PAGA claims, whether individual or non-individual, constitute claims that, in the absence of the agreement, could have been brought in court. Thus, each of these clauses encompasses a waiver of litigation and compels arbitration of both individual and non-individual PAGA claims.
In addition, the agreement contains a ban on prosecuting any lawsuit except for one specific exception. The trial court noted, "[T]he agreement goes on to prohibit the parties from 'initiat[ing] or prosecut[ing] any lawsuit in any way related to any claim covered by the agreement, other than a lawsuit seeking temporary equitable relief in aid of arbitration.'" The prohibition on initiating or prosecuting "any lawsuit" unambiguously operates to include both individual and non-individual PAGA claims as understood in Viking River and Adolph.
b. The ban on claims brought on a representative basis cannot be read to exclude non-individual PAGA claims.
Robert Half's argument that the agreement does not contain a "wholesale waiver" of Gentry's right to bring a PAGA claim fares no better. Robert Half reads the language "no court or arbitrator shall determine any of my rights or claims on a class, collective or representative basis" in the agreement as "merely a procedural agreement that an individual's personal claims ("my rights or claims") cannot be adjudicated ('determine[d]') together with the claims of others (on a 'class, collective or representative basis')." (Italics added.) This reading ignores the language waiving Gentry's right to litigate "all claims" and to initiate or prosecute "any lawsuit" discussed above. As the trial court again correctly observed, "construing the phrase 'my rights or claims' as somehow limiting the scope of the agreement and PAGA waiver is impermissible as this would require ignoring the majority of the language in the agreement that otherwise makes clear the broad and nearly unlimited scope of application of the agreement." Robert Half's assertion, that this constitutes a waiver of adjudication of Gentry's personal claims "together with the claims of others," is not supported by the grammatical construction of the sentence. Even if we accept Robert Half's notion that this is "merely a procedural agreement," this precludes adjudication in any forum of any claim brought by Gentry on a representative basis. Such a waiver is invalid.
Robert Half argues that the word "representative" as used in the agreement is ambiguous and the ambiguity should be resolved in favor of arbitration. We disagree. In Viking River, the Court observed that PAGA actions are "representative" in two distinct ways. (142 S.Ct. at p. 1916.) "In the first sense, PAGA actions are 'representative' in that they are brought by employees acting as representatives-that is, as agents or proxies-of the State. But PAGA claims are also called 'representative' when they are predicated on code violations sustained by other employees." (Ibid.) The Court explained that "when the word 'representative' is used in the second way, it makes sense to distinguish 'individual' PAGA claims, which are premised on Labor Code violations actually sustained by the plaintiff, from 'representative' (or perhaps quasi-representative) PAGA claims arising out of events involving other employees." (Ibid.) In this case, under either meaning, the agreement contains an invalid waiver. Either the agreement waives Gentry's right to bring a representative (in the first sense) PAGA claim, which would be a wholesale waiver, as previously determined, or it waives her right to bring a representative (in the second sense) PAGA claim, which would be an invalid waiver of her right to bring a non-individual or representative claim in any forum.
Finally, we reject Robert Half's argument that a difference between claims brought on a "representative basis" and "representative action claims" distinguishes this case from a recent case in which the court found the latter constituted an invalid waiver of non-individual PAGA claims. In Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, the court found contract language that the employee "may not assert any class action, collective action or representative action claims in any arbitration pursuant to the Agreement or in any other forum," constituted an invalid waiver of the right to bring a representative action under PAGA. (Id. at pp. 649-650, bolding omitted.) Robert Half asserts there is a difference between a waiver of the right to litigate "representative action claims," and a waiver of the right to litigate claims brought "on a representative basis." The Galarsa court did not address any difference between these phrases, and we see no meaningful distinction for our purposes. At most, this argument would support a conclusion that the word "representative" is being used in the waiver provision in the second sense, what Robert Half refers to as a waiver of the PAGA claims joinder mechanism. But as set forth above, that is still an invalid waiver insofar as it waives Gentry's right to bring a non-individual PAGA claim in any forum.
Our interpretation is consistent with other decisions addressing this issue post-Viking River. For example, in Nickson v. Shemran, Inc., supra, 90 Cal.App.5th 121, 127, the arbitration agreement provided, "All claims that are covered by this Agreement can only be brought . . . on an individual basis.... I agree to waive any right to join or consolidate claims with others, or to make any claims as representative of a class, a member of a class, or in a private attorney general capacity." The court concluded the above language includes an unenforceable waiver of nonindividual PAGA claims. (Id. at p. 130.) Likewise, in Westmoreland, supra, 90 Cal.App.5th at page 971, the arbitration agreement provided that" 'arbitration is the only litigation forum for resolving covered claims'" and defined" 'covered claims" broadly. The agreement also included a "Waiver of Class and Collective Claims" clause that provided that" 'covered claims will be arbitrated only on an individual basis and that [the parties] waive the right to participate in or receive money or any other relief, to the maximum extent permitted by law, from any class, collective, or representative proceeding.'" (Id. at p. 971.) The court concluded that the above language included an invalid waiver of the right to bring nonindividual PAGA claims in any forum. (Id. at pp. 971, 972-973, 981-982.) We find that the covered claims clause includes an invalid waiver of the right to litigate non-individual PAGA claims.
c. The severability clause invalidates the arbitration agreement.
The court's decision in Westmoreland resolves how the severability clause applies in this case. In that case, as in this case, the arbitration agreement included a severability clause, described as a "poison pill" provision, which invalidated the arbitration agreement "if the Waiver of Class and Collective Claims is found to be unenforceable." (Westmoreland, supra, 90 Cal.App.5th at pp. 971-972.) Having found an invalid waiver of the employee's right to bring non-individual PAGA claims in any forum, the court held that the severability clause precluded enforcement of the arbitration agreement. The court explained, "Had Kindercare simply included a waiver of representative claims in its arbitration agreement, and not included the poison pill at the end of the agreement, the result here could have been substantially similar to that in Viking River. The case also would have been similar to other recent appellate decisions following Viking River, including [Vaughn v.] Tesla [(2023) 87 Cal.App.5th 208, 225-226], Piplack [v. In-N-Out Burgers (2023) 88 Cal.App.5th 1281, 1285], and Galarsa v. Dolgen California, LLC.[, supra, 88 Cal.App.5th 639]. The arbitration agreements in those cases did not have a poison pill provision like the one in Kindercare's agreement here, and so PAGA claims could be divided: the 'individual' PAGA claim sent to arbitration and the 'representative' PAGA claim pursued in court. [Citations.] [¶] Ironically, the language and structure of Kindercare's arbitration agreement necessitates a result similar to the 'claim joinder' rule in PAGA that Viking River deemed problematic when imposed by state law. [Citation.] The poison pill effectively prevents us from sending Westmoreland's 'individual' claims under PAGA (representing the State of California but pursuing 'individual' remedies based on the plaintiff's status as a former employee) to arbitration, while allowing litigation in court of her 'representative' claims under PAGA, which involve the rights of other 'aggrieved employees.' [Citation.] [¶] The arbitration agreement in this case sought to address the uncertainty in the law in 2016 concerning the waiver of representative claims under PAGA by using the poison pill provision to prevent litigation on parallel tracks if it ever became clear that even one of Westmoreland's potential class or representative claims could not be waived and would have to be pursued in court. The provision is unambiguous and 'presents an all-or-nothing proposition.' [Citation.] The provision leaves no room for Kindercare to choose to bifurcate Westmoreland's claims between arbitration and court; it instead invalidates the agreement. [¶] In sum, . . . we conclude that the arbitration agreement is invalid by operation of the unambiguous 'Savings Clause and Conformity Clause.' As a consequence of Kindercare's drafting decisions, and absent further stipulation between the parties, the arbitration agreement is 'invalid' and so Kindercare must litigate all of Westmoreland's claims in court." (Westmoreland, at p. 982.) For the same reasons, we find, consistent with the determinations of two trial court judges and this court in Gentry I, that the severability clause precludes enforcement of the arbitration agreement in this instance. We agree with the trial court's determination that "the language of the parties' agreement is dispositive and the outcome of defendant's motion, even applying [Viking River], comes down to an issue of contract interpretation." Viking River changed the law but not the outcome in this case.
3. Gentry's request for sanctions is denied.
Code of Civil Procedure Section 907 provides: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." An appeal is frivolous "when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Gentry argues that Robert Half's shifting positions and interpretations of the agreement were only intended to delay the litigation and that Robert Half "is violating the integrity of the judicial process by taking conflicting positions regarding an agreement it drafted and disregarding the law of the case." The appeal, she contends, is a frivolous attempt to avoid operation of the severability clause it drafted and that no reasonable attorney would have continued to prosecute this appeal after Westmoreland was decided. While Robert Half's attempt to reinterpret its agreement was soundly rejected by the trial court, we disagree that the appeal was frivolous given the significance of Viking River to this issue. Accordingly, Gentry's motion for sanctions is denied.
Disposition
The order denying Robert Half's petition to compel arbitration is affirmed. Gentry's motion for sanctions is denied. Gentry shall recover her costs on appeal.
WE CONCUR: BROWN, P. J., GOLDMAN, J.
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.