Request Judicial NoticeCal. Super. - 6th Dist.July 10, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1QCV351 1 83 Santa Clara - Civil SEYFARTH SHAW LLP Richard Chen (SBN 225392) rchen@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067 Telephone: (3 10) 20 1 - 1 548 Facsimile: (3 10) 201-5219 SEYFARTH SHAW LLP Kiran S. Lopez (SBN 252467) 560 Mission Street, Suite 3 100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 Attorneys for Defendant KELLY SERVICES USA, LLC Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/3/2019 2:42 PM Reviewed By: L. Quach-Marcella Case #1 9CV351 1 83 Envelope: 3476415 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ZOHAL MIR, an individual, Plaintiff, V. KELLY SERVICES USA, LLC, a Michigan corporation; ADVANCEDCATH TECHNOLOGIES, LLC, a California limited liability company; and DOES 1 through 20, inclusive, Defendants. Case N0. 19CV351 183 (Case Assignedfor All Purposes t0 the Hon. Mark H. Pierce) DEFENDANT KELLY SERVICES USA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS Date: November 5, 2019 Time: 9:00 am. Location: Department 2 [Filed concurrently With Defendant Kelly Services USA, LLC’s Notice 0f Motion and Motion t0 Compel Arbitration and Stay Proceedings and Memorandum 0f Points and Authorities; the Declarations 0f David Scott Stewart and Kiran S. Lopez; and (Proposed) Order] Complaint Filed: July I 0, 2019 Trial Date: None DEFENDANT KELLY SERVICES USA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS ina 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that 0n November 5, 2019 at 9:00 a.m., 0r as soon thereafter as the matter may be heard, in Department 2 0f the Superior Court 0f California, County 0f Santa Clara, located at 191 North First Street, San Jose, California 95 1 13, before the Honorable Mark H. Pierce, Defendant Kelly Services USA, LLC (“Kelly”) will and hereby does request that the Court, pursuant t0 California Evidence Code sections 452 and 453, and California Rules 0fCourt 3.1 1 13(1) and 3.1306(0), take judicial notice 0f the following in support 0f Kelly’s Motion t0 Compel Arbitration and Stay Proceedings: 1. Brown v. Dow Chem. C0., et al., N0. 3:18-CV-07098, 2019 U.S. Dist. LEXIS 20294, (ND. Cal. February 7, 2019) - Ruling granting Defendant Kelly Services Global, LLC’s Motion t0 Compel Arbitration, attached hereto as Exhibit G; 2. Sandoval v. Republic Services, Ina, N0. BC 683815, 2018 Cal. Super. LEXIS 2261 (Los Angeles Cty. Sup. Ct. July 12, 20 1 8) - Ruling granting Defendant Kelly Services, Inc. ’s Motion t0 Compel Arbitration, attached hereto as Exhibit H; and 3. Amin v. Advanced Sterilization Products Service Ina, et al., N0. SACV 18-1528 JVS (JDEX), 2019 U.S. Dist. LEXIS 13254 (C.D. Cal. January 7, 2019) - Ruling granting Defendant Kelly Services, Inc.’s Motion t0 Compel Arbitration, attached hereto as Exhibit I. California Evidence Code Section 452(d)(1) states that a court may take notice 0f, “[r]ecords 0f any court 0f this state.” This Court therefore may take judicial notice 0f the above-referenced Orders. /// /// /// /// /// /// /// /// /// 1 DEFENDANT KELLY SERVICES USA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Evidence Code Section 453 provides that the Court, “shall take judicial notice 0f any ,9 CC matter specified in Section 452 if a party requests it, [g]ives each adverse party sufficient notice 0f the request,” and “[flurnishes the court with sufficient information t0 enable it t0 take judicial notice 0f the matter.” Exhibit G is a record 0f the United States District Court for the Northern District 0f California, Exhibit H is a record 0f the Superior Court 0f California for the County 0f Los Angeles, and Exhibit I is a record 0f the United States District Court for the Central District 0f California. Exhibits G, H, and I are attached hereto, and this Request is presented t0 all parties with sufficient notice. Thus, Kelly respectfully requests that the Court grant this Request for Judicial Notice and judicially notice the Exhibits hereto and the facts referenced herein. DATED: October 3, 2019 Respectfully submitted, SEYFARTH SHAW LLP Richard Chen Kiran S. Lopez Attorneys for Defendant KELLY SERVICES USA, LLC 59405584V.1 2 DEFENDANT KELLY SERVICES USA, LLC’S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS EXHIBIT G e Neutral As of: October 1, 2019 7:23 PM Z Brown v. Dow Chem. Co. United States District Court for the Northern District of California February 7, 2019, Decided; February 7, 2019, Filed Case No. 18-cv-07098-MMC Reporter 2019 U.S. Dist. LEXIS 20294 *; 2019 WL 484211 SAMUEL BROWN, Plaintiff, v. THE DOW CHEMICAL COMPANY, et a|., Defendants. Subsequent History: Dismissed without prejudice by, in part Brown v. Dow Chem. Co., 2019 U.S. Dist. LEXIS 55991 (N.D. Ca|., Apr. 1, 2019) Dismissed without prejudice by Brown v. Dow Chem. Co., 2019 U.S. Dist. LEXIS 131796 (N.D. Ca|., Aug. 6, 2019) Core Terms arbitration, unconscionable, arbitration agreement, limitations, unconscionable clause, limitations period, parties Counsel: [*1] For Samuel Brown, Plaintiff: Lawrence W. Freiman, LEAD ATTORNEY, Freiman Legal, Santa Monica, CA. For The Dow Chemical Company, Defendant: Ellen E Boshkoff, LEAD ATTORNEY, Faegre Baker Daniels LLP, Los Angeles, CA; Samantha M Rollins, PRO HAC VICE, Faegre Baker Daniels LLP, Des Moines, IA. For Kelly Services, |nc., Kelly Services Global, LLC (erroneously sued as Kelly Services, |nc.), Defendant: Jamie Clayton Pollaci, LEAD ATTORNEY, Seyfarth Shaw LLP, Los Angeles, CA; Kiran Singh Lopez, Seyfarth Shaw LLOP, San Francisco, CA. Judges: MAXINE M. CHESNEY, United States District Judge. Opinion by: MAXINE M. CHESNEY Opinion ORDER GRANTING DEFENDANT KELLY SERVICES GLOBAL, LLC'S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS Re: Dkt. No. 19 Before the Court is defendant Kelly Services Global, LLC's ("Kelly")1 "Motion to Compel Arbitration and Stay Proceedings," filed December 20, 2018, pursuant to the Federal Arbitration Act ("FAA"). Plaintiff Samuel Brown ("Brown“) has filed opposition? to which Kelly has replied. Having read and considered the papers filed in support of and in response to the motion, the Court hereby rules as follows.3 In his complaint, Brown alleges that Kelly and Dow were his employers (fl Compl. 1T 8), [*2] and that, after he made "complaints about health, safety and wages," defendants violated California law by engaging in acts of "retaliation," including "fai|[ing] to pay proper wages" and "termination" of his employment (fl Compl. 11 9). In addition, Brown alleges that Kelly violated California law by requiring him to "sign an agreement that mandated Michigan law to apply" even though he "resid[ed] and work[ed] primarily in California." (fl Compl. 1T 10.) By the instant motion, Kelly seeks an order compelling Brown to arbitrate his claims against Kelly and to stay those claims pending completion of arbitration proceedings. The FAA provides as follows: If any suit or proceeding be brought in any of the 1 By order filed concurrently herewith, the Court has approved the parties' stipulation to substitute said defendant for Kelly Services, |nc., the entity named in the Complaint. 2The other named defendant, The Dow Chemical Company ("Dow“), has filed a response in which it states it does not oppose the motion and notes the motion does not seek to compel arbitration of Brown‘s claims against Dow. 3By order filed January 28, 2019, the Court took the matter under submission. Page 2 of 5 2019 U.S. Dist. LEXIS 20294, *2 courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default [*3] in proceeding with such arbitration. fl 9 u.s.c. § 3. The court‘s role under the FAA is "limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue." See Chiron Corp. v. Ortho Diaqnostic Systems, |nc., 207 F.3d 1126, 1130 (9th Cir. 2000). "If the response is affirmative on both counts, then the [FAA] requires the court to enforce the arbitration agreement in accordance with its terms." |d_. In the instant case, there is no dispute that Brown and Kelly entered into an arbitration agreement (fl Stewart Decl. Ex. B) and that Brown's claims against Kelly fall within the scope of the agreement (see id. Ex. B 11 2) (defining "Covered Claims" as "all common-Iaw and statutory claims relating to [the employee's] employment")). The parties disagree, however, as to whether the agreement or any term therein is unconscionable, and, consequently, whether the agreement is valid. Under the FAA, an arbitration agreement is unenforceable where it is invalid under "generally applicable contract defenses" recognized by state law, such as "unconscionability." See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) (hereinafter, "Concepcion"). "Under California law, courts may refuse to enforce any contract found to have been unconscionable at the time it was made, [*4] or may limit the application of any unconscionable clause." Q at 340 (internal quotation and citation omitted). "A finding of unconscionability requires a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results." |d_. (internal quotation and citation omitted). The first of these two elements, "procedural unconscionability," is present where "a party has no meaningful opportunity to negotiate terms or the contract is presented on a take it or leave it basis."fl Wherrv v. Award, |nc., 192 Cal. App. 4th 1242, 1246, 123 Cal. Rptr. 3d 1 (2011). Here, Kelly acknowledges it has a "policy“ that "require[s] every new applicant for employment . . to sign an arbitration agreement regarding all employment-related claims." (fl Stewart Decl. 111T 2-3.) Given Kelly's requirement that Brown sign the agreement in order to obtain employment with Kelly, the Court finds the "procedural element of an unconscionable contract" is established. See Little v. Auto Stiegler, |nc., 29 Cal. 4th 1064, 1071, 130 Cal. Rptr. 2d 892, 63 P.3d 979 (2003) (holding "procedural element" established where employer had "imposed on [employee] an adhesive arbitration agreement"; observing "few employees are in a position to refuse a job because of an arbitration requirement").4 The Court [*5] next turns to the question of whether the arbitration agreement is substantively unconscionable. In that respect, Brown asserts the arbitration agreement contains four overly harsh provisions. First, Brown argues, the agreement requires him to arbitrate claims brought pursuant to the Private Attorney General Act ("PAGA"), §§ 2698 - 2699.5 of the California Labor Code,5 which requirement, he asserts, is unconscionable because, under state law, an employer may not require an employee to arbitrate such claims. See Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 360, 173 Cal. Rptr. 3d 289, 327 P.3d 129 (2014) (holding "arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative PAGA actions in any forum is contrary to public policy"). The agreement here, however, includes no such requirement; even assuming, arguendo, that a PAGA claim is a claim "related to [Brown's] employment" (fl 4The agreement provides that the "employment dispute resolution rules of the American Arbitration Association ('AAA') effective at the time of filing will apply." (fl Stewart Decl. Ex. B 1T 4.) To the extent Brown argues it was procedurally unconscionable for Kelly not to have attached a copy, the Court disagrees, as "the arbitration rules were easily accessible to the parties." See Lane v. Francis Capital Management LLC, 224 Cal. App. 4th 676, 691, 168 Cal. Rptr. 3d 800 (2014) (rejecting argument that failure to attach AAA rules to agreement was procedurally unconscionable; noting "the AAA rules are available on the Internet"). Moreover, the agreement requires Kelly to provide Brown with a copy of the rules "upon request." (E Stewart Decl. EX. B 1] 4.) 5Although Brown's complaint does not include a PAGA claim, Brown states he intends to pursue such a claim in the future. Page 3 of 5 2019 U.S. Dist. LEXIS 20294, *5 Stewart Decl. Ex. B 1] 2),6 and thus within the definition of "Covered Claims," it is excluded by the agreement's provision that "Covered Claims" do not include "[a]ny claim that cannot be required to be arbitrated as a matter of law" (fl Stewart Decl. Ex. B 1T 3). Accordingly, there being no contractual requirement that Brown arbitrate PAGA claims, Brown [*6] may not base a defense of unconscionability thereon. Second, Brown argues, the agreement requires claims be submitted to AAA,7 and that such requirement is unconscionable because, according to Brown, "AAA has an incentive to side with [Kelly]" in order to "obtain repeat business from a satisfied employer." (fl P|.'s Opp. at 8:21-22.) Such argument, in addition to being wholly speculative, challenges employers' use of arbitrators as a general matter, as it would pertain irrespective of whether any particular arbitration firm or arbitrator is selected. A party may not, however, invoke "generally applicable contract defenses," such as unconscionability, to void an arbitration agreement, where application of said defenses would "interfere[ ] with fundamental attributes of arbitration." fl Concepcion, 563 U.S. at 344. Indeed, California courts have rejected arguments similar to that raised by Brown in the instant case. See, e.q., Malone v. Superior Court, 226 Cal. App. 4th 1551, 1569-70, 173 Cal. Rptr. 3d 241 (2014) (holding federal law prohibits employee from basing unconscionability challenge to arbitration agreement on theory "arbitrators will tend to rule on the merits in favor of any employer who is a 'repeat player," as opposed to an employee who is not") (emphasis omitted); see also Pinela v. Neiman Marcus Group, |nc., 238 Cal. App. 4th 227, 246, 190 Cal. Rptr. 3d 159 (2015) (holding, [*7] where plaintiff argued clause delegating to arbitrator power to decide validity of agreement was unconscionable, plaintiff could not base 6A PAGA action is a "type of qui tam action," see Iskanian, 59 Cal. 4th at 382, as a PAGA claim presents "a dispute between an employer and the state Labor and Workforce Development Agency," see id. at 384. Indeed, "[t]he government entity on whose behalf the plaintiff files suit is always the real party in interest."g at 382. 7Although not clearly expressed, it appears Brown contends that the above-described clause (fl n.4) requiring application of AAA's "rules" (fl Stewart Decl. Ex. B 1] 4) in turn requires submission of his claims to AAA. Kelly has not disputed Brown's interpretation of the agreement. Consequently, for purposes of the instant order, the Court assumes the agreement requires claims be submitted to AAA. challenge on theory "arbitrators could be invested in the outcome of a challenge to the enforceability of an arbitration agreements," as "unconscionability arguments framed so broadly that they amount to attacks on inherent features and consequences of arbitral delegation clauses run contrary to [federal |aw]"). This Court likewise finds Brown's argument unpersuasive. Accordingly, Brown has not shown the clause requiring submission of disputes to AAA is substantively unconscionable. Third, Brown challenges a clause providing Michigan law applies to "any disputes related to [the] employment relationship" (fl Stewart Decl. Ex. B 1T 5), which clause, Brown contends, violates a California statute that prohibits an employer from "requir[ing] an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would . . . [d]eprive the employee of the substantive protection of California law with respect to a controversy arising in California." E Cal. Lab. Code § 925(a).8 Brown fails, however, to identify any conflict between [*8] California and Michigan substantive law, and, consequently, fails to show application of the Michigan choice of law provision would deprive him of a substantive protection afforded under California law. See, e.g., Pinela, 238 Cal. App. 4th at 257 (finding Texas choice of law clause unconscionable where "[t]here [was] no legal basis in Texas law" for California state law claims pleaded in complaint). Moreover, nothing in the agreement purports to deprive Brown of his statutory right to unilaterally void the Michigan choice of law provision should such a conflict arise.fl Cal. Lab. Code § 925(b) (providing contractual clause that would deprive employee of "substantive protection of California law" is "voidable by the employee"; further providing that, if employee elects to void such clause, "California law shall govern the dispute"); (see also Stewart Decl. Ex. B 11 16 (providing that if any clause of arbitration agreement is "unenforceable," it "shall be automatically severed")). In short, Brown fails to show 3 Kelly argues that because it "has not asserted that Michigan employment law applies to [Brown's] employment in California," the choice of law provision is "irrelevant." (fl Def.s' Reply at 5:23, 27-28.) The Court disagrees, as "[t]he critical juncture for determining whether a contract is unconscionable is the moment when it is entered into by both parties - not whether it is unconscionable in light of subsequent events." See American Software, Inc. v. Ali, 46 Cal. App. 4th 1386, 1391, 54 Cal. Rptr. 2d 477 (1996). Page 4 of 5 2019 U.S. Dist. LEXIS 20294, *8 any possibility that, at the time he entered into the agreement or at any time thereafter, the Michigan choice of law clause could deprive him of any substantive right available to him under California law. Accordingly, Brown [*9] has not shown the choice of law provision is substantively unconscionable. Fourth, and lastly, Brown challenges a clause requiring "any claims that each party may have against the other" be brought "within 300 days of the day that such party knew, or should have known, of the facts giving rise to the cause of action," and that the parties "waive any longer, but not shorter, statutory or other limitations periods." (fl Stewart Decl. Ex. B 11 6.) A contractual clause restricting the period in which an arbitration may be commenced is unconscionable where the period is "far shorter" than that otherwise available under California Law. See Wherm, 192 Cal. App. 4th at 1249 (2011) (holding clause providing "arbitration must be filed within 180 days of the event triggering the action" unconscionable, where 180 days was "far shorter" than one-year statutory period that otherwise would have applied to plaintiff's claim); Martinez v. Master Protection m, 118 Cal. App. 4th 107, 117, 12 Cal. Rptr. 3d 663 (2004) (holding six-month limitations period in arbitration agreement unconscionable, where "[t]he statutes on which [the plaintiff's] claims [were] premised provide[d] significantly longer periods of time," specifically, periods ranging from one to four years). Here, Brown asserts six causes of action in his complaint, comprising [*10] four claims alleging violations of specific Labor Code provisions (fl Compl. at 425-6, 1m 22, 27, 34), which claims are subject to a three-year statute of limitations, fl Cal. Civ. Proc. Code § 338(a), as well as one claim alleging a violation of § 17200 of the Business and Professions Code (fl Compl. 11 37), which claim is subject to a four-year statute of limitations, fl Cal. Bus. & Prof. Code § 17208, and a common law claim for wrongful termination in violation of public policy (fl Compl. 1T 14), which claim is subject to a two-year statute of limitations, see Prue v. Brady Co./San Dieqo, |nc., 242 Cal. App. 4th 1367, 1382, 196 Cal. Rptr. 3d 68 (2015). As the agreement's limitations period of 300 days is significantly shorter than the statutory periods that otherwise would be available, the limitations clause is unconscionable. See Sandoval v. Republic Services, m, 2018 Cal. Super. LEXIS 2261, at *11 (July 12, 2018 Superior Court) (holding 300-day limitations period in Kelly's arbitration agreement "substantively unconscionable" where statutory periods were "three or four years").9 Although the limitations clause is unconscionable, the Court finds it appropriate to sever it rather than find the agreement as a whole unenforceable. See Concegcion, 563 U.S. at 339 (holding courts "may limit the application of any unconscionable clause"); Cal. Civ. Code § 1670.5 (providing where court finds "contract or any clause of the contract to have been unconscionable at the time it [*11] was made[,] the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause"). Although severance of an unconscionable clause is not appropriate where a court "would have to, in effect, reform the contract" in order to preserve the rest of the agreement, see Armendariz v. Foundation Health Psychcare Services, |nc., 24 Cal. 4th 83, 125, 99 Cal. Rptr. 2d 745, 6 P.3d 669 (2000), no reformation is necessary here, as the limitations period is, by default, the period set forth in the AAA rules, specifically, "the time limit established by the applicable statute of limitations."E AAA Employment Arbitration Rules and Mediation Procedures, Rule 4.b.10 Accordingly, the Court finds the arbitration agreement, with the sole substantively unconscionable clause severed therefrom, is enforceable. CONCLUSION For the reasons stated above, Kelly's motion to compel arbitration is hereby GRANTED, and Brown's claims against Kelly are hereby STAYED pending completion of arbitration proceedings. |T IS SO ORDERED. Dated: February 7, 2019 ls/ Maxine M. Chesney MAXINE M. CHESNEY 9Kelly's unopposed request that the Court take judicial notice of Sandoval (fl Def.'s Req. for Judicial Notice Ex. G) is GRANTED. 1°The Court takes judicial notice of the AAA rules, fl Chavarria v. Ralphs Grocer Co., 812 F. Supp. 2d 1079, 1087 n.8 (2011), as their content "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned,"fl Fed. R. Evid. 201(b). Page 5 of 5 2019 U.S. Dist. LEXIS 20294, *11 United States District Judge End 0f Document EXHIBIT H As of: October 23, 2018 7:01 PM Z Sandoval v. Republic Servs. Superior Court of California, County of Los Angeles July 12, 2018, Decided; July 12, 2018, Filed Case No.: BC 683815 Reporter 2018 Cal. Super. LEXIS 2261 * KRYSTAL SANDOVAL, Plaintiff, v. REPUBLIC SERVICES, |NC., et a|., Defendants. Core Terms Services, arbitration agreement, unconscionable, arbitration, cause of action, limitations period, substantively, contends, compel arbitration, right to arbitration, allegations, adhesion, asserts, factors, parties, covers Judges: [*1] Hon. Teresa A. Beaudet, Judge, Los Angeles Superior Court. Opinion by: Teresa A. Beaudet Opinion ORDER RE: DEFENDANT KELLY SERVICES, |NC.‘S MOTION TO COMPEL ARIBTRATION; DEFENDANT CONSOLIDATED DISPOSAL SERVICE, LLC'S JOINDER TO MOTION TO COMPEL ARBITRATION Background Plaintiff Krystal Sandoval ("Plaintiff") filed this employment action on November 16, 2017 against Defendants Republic Services, Inc. ("Republic Services"), Kelly Services, Inc. ("Kelly Services“), and Chris Doe. Consolidated Disposal Service, LLC ("CDS") was added to replace Doe No. 2 on December 29, 2017. Republic Services was dismissed without prejudice by stipulation on February 15, 2018. The Complaint asserts causes of action under FEHA for retaliation, discrimination, harassment, and failure to prevent harassment, discrimination, and retaliation, as well as causes of action for wrongful termination, retaliation, and discrimination in violation of California law and public policy and failure to produce wage statements and personnel records in violation of Labor Code sections 226 and 1198.5. Kelly Services and CD81 now move for an order compelling arbitration pursuant to Plaintiffs duly executed arbitration agreement. Plaintiff opposes. Legal Standard In a motion to compel [*2] arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosentha/ v. Great Western Fin. Securities Corp. (1996) 14 Ca/.4th 394, 413-414); Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.AQQ.4th 754, 758.) Generally, on a petition to compel arbitration, the coun must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2); see Condee v. Longwood Manaqement Corp. {2001) 88 Cal.App.4th 215, 218- $0 "California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration." (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) "This strong policy has 1CDS filed a joinder to Kelly Services‘ motion on May 30, 2018. Michael Jacobsen Page 2 of 5 2018 Cal. Super. LEXIS 2261, *2 resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute." (Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements [*3] under the Federal Arbitration Act ("FAA"), which governs all agreements to arbitrate in contracts "involving interstate commerce." (Q U.S.C. 6 2, et seq; Hiqqins v. Superior CourT (2006) 140 Cal.App.4th 1238, 1247.) Discussion A. Existence of Arbitration Aqreement Kelly Services submits evidence that Plaintiff executed an arbitration agreement as part of her employment with Kelly Services. (Martinez Dec|., Ex. 2.) Plaintiff does not dispute that she signed the arbitration agreement or that it covers her claims against Kelly Services (all of the causes of action except the sixth cause of action for failure to produce wage statements and personnel records). However, Plaintiff does dispute that an arbitration agreement exists as to CDS, and/or that the arbitration agreement covers the claims as to CDS. As an initial matter, the Court notes that it is unclear based on the allegations in the Complaint the role of CDS vis-é-vis Plaintiff. Nevertheless, based on the summary of facts as recounted by each of the parties, the Court surmises that Republic Services was improperly named, and that references to Republic Services in the Complaint should actually be references to CDS. Similarly, references to Republic Services in the Declaration of Irene Martinez in support of Ke||y[*4] Services' motion will be construed as references instead to CDS. It is undisputed that CDS is not a signatory to the subject arbitration agreement. Nonetheless, CDS contends that, under the equitable estoppel doctrine, Plaintiff should be compelled to arbitrate her claims against CDS because those claims derive from Plaintiff's agreement with Kelly Services. Kelly Services provides staffing services, and it placed Plaintiff at CDS for a call center position. (Martinez Decl., 1m 2, 6.) "[T]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are 'based on the same facts and are inherently inseparable. (Meta/c/ad Corp. v. Ventana Environmental Orqanizationa/ Partnership (2003) 109 Cal.AQQAth 1705, 1713.) "Because equitable estoppel applies only if [the] plaintiffs' claims against the nonsignatory are dependent upon, or inextricably bound up with, the obligations imposed by the contract plaintiff has signed with the signatory defendant, we examine the facts alleged in the complaints." (JSM Tuscany, LLC v. Superior Court {2011) 193 Cal.App.4th 1222, 1239.) Plaintiff alleges that she was jointly employed by Kelly Services and CDS and that both exercised control over her wages, hours, and working conditions. (Comp|., 111T 1, 5.) CDS [*5] contends that Plaintiff's claims rely on the existence of an employment relationship with Kelly and her placement at CDS. In opposition, Plaintiff contends that each cause of action may be allocated to each defendant, and no cause of action relies on any particular contract. At the outset, the Court notes that Plaintiff alleges that a "common law employment relationship" was created between Plaintiff and CDS/Kelly Services. (Compl., 11 5.) Therefore, the causes of action are not expressly dependent on the existence of the employment agreement between Plaintiff and Kelly Services. This is different from the situation in Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, to which CDS cites. In Boucher, the Court of Appeal found that the plaintiff‘s claims against a nonsignatory defendant relied on, made reference to, and presumed the existence of the underlying employment agreement because the complaint made allegations of failure to pay certain wages under the terms of the employment agreement as well as an allegation of breach of the employment agreement against the nonsignatory defendant. (Id. at Q. fl.) Even so, the Court finds that Garcia v. Pexco LLC (2017) 11 Cal.AQQ.5th 782, cited by Kelly Services in its reply brief, is both analogous and controlling. In Garcia, the Court of Appeal [*6] held that a plaintiff could be compelled to arbitrate his claims against his primary employer even though the arbitration agreement he signed was only between the plaintiff and the staffing agency that placed him with the employer. (Id. at QQ. 787-788.) The Court of Appeal's reasoning was based on the fact that the plaintiff's claims against the employer are "rooted in his employment relationship with" the staffing agency, and the governing arbitration agreement expressly included the claims that the plaintiff was bringing against the employer. (Id. at Q. M.) Further, the Court of Appeal noted that the plaintiff did not distinguish between the staffing agency and the employer in any way in the operative complaint, and the facts supporting the 5 claims against the employer were the same as the facts supporting the claims against the Michael Jacobsen Page 3 of 5 2018 Cal. Super. LEXIS 2261, *6 agency. (Id. at Q. 788.) Here, Plaintiff also does not distinguish between the defendants in the Complaint, as the facts supporting each cause of action are alleged against all Defendants (except Chris Doe) collectively. The sole cause of action purportedly alleged against CDS only is the sixth cause of action for violation of Labor Code sections 226 and 1198.5 for failure to produce wage statements and personnel records. The [*7] Court notes that the sixth cause of action as alleged in the Complaint is directed against "Defendant Republic Services, Inc. & Does 11 through 20." Although the parties seem to agree that Republic Services, Inc. is meant to refer to CD8, that is not apparent on the face of the Complaint. Further, in Plaintiff's amendment to the Complaint, CDS was added to replace Doe 2. Therefore, whether the sixth cause of action is operative against CDS is not clear to the Court. In any event, the Court finds that the allegations against CDS are sufficiently intertwined with Plaintiff's employment relationship with Kelly Services such that Plaintiff is equitably estopped from refusing to arbitrate her claims with CDS. Plaintiff also contends that the sixth cause of action is not covered by the arbitration agreement. Again, the Court notes that it is unclear whether the sixth cause of action even applies to CDS, but assuming that it does, the Court is not convinced that it is not covered by the arbitration agreement. As Plaintiff herself notes, the arbitration agreement covers "all common-Iaw and statutory claims related to [her] employment...." (Martinez Decl., Ex. 2, 11 2.) A claim for violation [*8] of Labor Code sections 226 and 1198.5 is clearly a statutory claim related to Plaintiff's employment. The Court finds that a valid and binding arbitration agreement exists as to Kelly Services and CDS that covers Plaintiff's claims, and so the burden now shifts to Plaintiffto prove a ground for denial. B. Grounds for Revocation - Unconscionabilitv Plaintiff contends that the arbitration agreement is both procedurally and substantively unconscionable and should not be enforced. An arbitration agreement must be both procedurally and substantively unconscionable to be unenforceable. (Armendariz v. Foundation Health Psychcare Services, Inc. {2000) 24 Cal.4th 83, 114); Mission Viejo Emerqencv Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1159 [unnecessary to decide whether insurance policy was adhesion contract and procedurally unconscionable because it was not substantively unconscionable].) Procedural unconscionability concerns the manner in which the contract was negotiated and the parties' circumstances at that time. It focuses on the factors of oppression or surprise. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.) "Oppression generally takes the form of a contract of adhesion, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. In the case of arbitration agreements in the employment context, the [*9] economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement." (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 [quotations and citations omitted].) Plaintiff contends that the arbitration agreement is procedurally unconscionable because it was a contract of adhesion and presented on a take-it-or-Ieave-it basis. While it is true that "the existence of contract of adhesion supports a finding of procedural conscionability" the Court must still weigh the level of procedural unconscionability against any substantive unconscionability to determine whether the agreement can be enforced. (Baxter v. Genworth North America Corp. (2017) 16 Cal.App.Sth 713, 723.) "When there is no other indication of oppression or surprise, 'the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.” (Serpa v. California Surety lnvestiqations, Inc. (2013) 215 Cal.App.4th 695, 704 (emphasis added).) "Substantive unconscionability pertains to the fairness of an agreement‘s actual terms and to assessments [*10] of whether they are overly harsh or one-sided. A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be so one-sided as to 'shock the conscience." (Carmona V. Lincoln Millennium Car Wash, /nc., supra, 226 Cal.App.4th at p. 85 [quotations and citations omitted].) "[T]he paramount consideration in assessing [substantive] conscionability is mutuality." (Ibid. [brackets in original].) Plaintiff identifies two provisions of the arbitration Michael Jacobsen Page 4 of 5 2018 Cal. Super. LEXIS 2261, *10 agreement that she contends are substantively unconscionable: 1) paragraph 5 requires her claims to be governed by the laws of the State of Michigan, and 2) paragraph 6 imposes a 300-day limitations period for Plaintiff to file a lawsuit. With regard to the shortened limitations period, Kelly Services argues that because Plaintiff filed her Complaint within the limitations period, that provision has no impact on the unconscionability question. However, "The critical juncture for determining whether a contract is unconscionable is the moment when it is entered into by both parties-not whether it is unconscionable in light of subsequent events" (Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 1_16 [internal citation omitted].) In Martinez, the Court of Appeal found that a siX-month limitations period for FEHA claims [*11] was substantively unconscionable because the limitations period under FEHA was one year; a six-month limitations period for certain Labor Code claims similarly was found to be substantively unconscionable because the Labor Code affords employees three or four years to assert those claims. (Id. at Q. 117.) Both FEHA claims and Labor Code claims are asserted in Plaintiffs Complaint, and FEHA claims and Labor Code claims are covered in the subject arbitration agreement. Kelly Services does not attempt to distinguish Martinez and cites to no authority that would diminish the effect of the ruling in Martinez. Therefore, because 300 days is significantly shorter than three or four years, the Court finds that the shortened limitations period is substantively unconscionable. As to paragraph 5, Plaintiff argues that it violates La_bor Code section 925, subdivision (a)(2), which prescribes that an employer shall not require an employee who primarily resides and works in California to agree to a provision that would "[d]eprive the employee of the substantive protection of California law with respect to a controversy arising in California." (Lab. Code, § 925(a2(21.) The Court finds that the savings clause in the arbitration agreement requires that terms found to be in conflict [*12] with applicable law either be construed to incorporate such law, or automatically severed from the agreement without affecting the remaining terms. (Martinez Dec|., Ex. 2, 1T 16.) Although Plaintiff asserts that the arbitration agreement is permeated with unconscionability, the Court finds that only one provision is actually substantively unconscionable (the shortened limitations period), and it is also amenable to being severed from the remainder of the arbitration provision. Therefore, though there is some indication of substantive unconscionability, the Court finds that the degree of unconscionability to be low. Accordingly, the Court finds that the arbitration agreement is enforceable, though the provision shortening the limitations period in paragraph 5 of the arbitration agreement must be severed.Gm Lastly, Plaintiff contends that Kelly Services and CDS waived the right to arbitrate by its removal of the instant lawsuit to federal court and by their failure to assert the arbitration agreement as an affirmative defense. Plaintiff asserts that she has been prejudiced because she has been unable to obtain employment since she was allegedly wrongfully terminated on August 1, [*13] 2017, nearly one year ago. (Compl., 1111 17-21.) Plaintiff also asserts that the parties have engaged in substantial litigation, including written discovery propounded by Plaintiff to CDS. (Vanderpool Decl., 1m 5, 11.) "[A] party who resists arbitration on the ground of waiver bears a heavy burden," and "any doubts regarding a waiver allegation should be resolved in favor of arbitration." (g Aqnes Medical Center v. PacifiCare of California (2003) 31 Ca/.4th 1 187 1 195 [internal citations omitted].) Kelly Services removed the case on February 14, 2018, less than 30 days after being served with the Complaint. (Simpler Dec|., 111T 3-4.) Kelly Services informed Plaintiff two weeks later of its intent to compel arbitration and sought her stipulation for same. (Simpler Decl., 1m 5-6.) The Court finds that these facts do not support waiver. The actions of Kelly Services are not "inconsistent with the right to arbitrate," and the Court does not find that Plaintiff was "affected, misled, or prejudiced" by Kelly Services' actions. (See id. at Q. 1196 [articulating factors to be considered in determining whether arbitration rights have been waived].) Insofar as Plaintiff cites Cabinetree of Wisconsin v. Kraftmaid Cabinetry (7th Cir. 1995) 50 F.3d 388, 390 as persuasive authority, the Court finds the case unpersuasive. As noted by Kelly Services, prompt removal without [*14] engaging in discovery does not support a finding of waiver. (Bozko v. Benninq Fin. Group, LLC (E.D.Cal. 2010) 737 F.Sugg.2d 1140, 1145.) Further, though Plaintiff asserts that the failure to allege a right to arbitrate as an affirmative defense is grounds for a finding of waiver, the Court finds that the case cited by Plaintiff does not entirely support that proposition. In Guess?, Inc. v. Superior Courf (2000) 79 Cal.App.4th 553, the Court of Appeal held that a number of factors supported waiver, not just the fact that arbitration was not alleged as an Michael Jacobsen 2018 Cal. Super. LEXIS 2261, *14 affirmative defense. Those other factors included that the defendant participated fully in the discovery process without claiming a right to arbitrate and that the defendant waited three months before moving to compel arbitration. (Id. at QQ. 557-558.) Although CDS does not discuss waiver in its joinder or in its reply brief, the Court finds that the factors also weigh against finding waiver with respect to CDS because of a lack of prejudice to Plaintiff. Accordingly, the Court finds that neither Kelly Services nor CDS waived their right t0 compel arbitration. D. Stay Code of Civil Procedure section 1281.4 provides that the court shall stay the action or proceeding if the court has ordered arbitration. (Code Civ. Proc., 6 1281.4).) Accordingly, the case is stayed pending completion of arbitration. Conclusion Fotlhehmgmmfimfinu Kfitykn'nu MCM‘ mien»: “+41%”- fiwflivfi "I'MMMAVMIMIHnmy-M (Wm nl‘uhInL'nm-uffllhllfl‘a mflm Fw-fibfiéu F I Arm Huh!”m' :m-mgm-WA ‘ n'- g r» KdlrSrrnon iludfltdln pmmdl mic! ol'lh: luliru . “Hag mm: truann-chcfimfumfih 5-. fittin- OnHI-Jfl-t. DATED: July 12, 2018 ls/ Teresa [*15] A. Beaudet Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court Page 5 of 5 End of Document Michael Jacobsen EXHIBIT I No Shepard’s SignaITM As of: September 20, 2019 4:27 PM Z Amin v. Advanced Sterilization Prods. Servs. United States District Court for the Central District 0f California January 7, 2019, Decided; January 7, 2019, Filed SACV 18-1 528 JVS (JDEx) Reporter 2019 U.S. Dist. LEXIS 13254 *; 2019 WL 2912862 Mahoo Amin v. Advanced Sterilization Products Services |nc., et al. Core Terms arbitration, arbitration agreement, unconscionable, proceedings, abstention, employees, stays, state court, substantively, provides, argues, favors, severs, substantially similar, limitations period, parties, issues, terms, class claim. factors, procedural unconscionability, covered claim, non-arbitrable, quotation, costs, meal, substantive unconscionability, compel arbitration, business expense, pending action Counsel: [*1] For Mahoo Amin, an individual, on his own behalf and on behalf of all others similarly situated also known as Seyed M Fazlollahzade Divkola, Plaintiff: Sarah Kristina Sterling, Young W Ryu, LEAD ATTORNEYS, LOYR APC, Los Angeles, CA USA. For Advanced Sterilization Products Services Inc, a California corporation, Defendant: Amanda C Sommerfeld, Scott Morrison, Jones Day, Los Angeles, CA USA. For Kelly Services Inc, a Michigan Corporation, Defendant: Gerald L Maatman, Jr, JenniferA Riley, Michael D Jacobsen, PRO HAC VICE, Daniel C Whang, Seyfarth Shaw LLP, Chicago, |L USA. Judges: James V. Selna. Opinion by: James V. Selna Opinion CIVIL MINUTES - GENERAL Proceedings: (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KELLY SERVICES' MOTION TO COMPEL ARBITRATION; DISMISSING PLAINTIFF'S CLASS CLAIMS; STAYING AND SEVERING THE NONARBITRABLE CLAIMS; AND STAYING THIS ACTION PENDING RESOLUTION 0F BARBOSA The Court, having been informed by the parties in this action that they submit on the Court's tentative ruling previously issued, hereby grants in part and denies in part the motion to compel arbitration, dismisses Amin's class claims, stays and severs the non-arbitrable claims, and stays this action pending resolution [*2] of Barbosa. The Court makes this ruling in accordance with the tentative ruling as follows: Defendant Kelly Services, Inc. (“Kelly") filed a motion for an order to compel individual arbitration and to stay the action. Mot., Docket No. 32. Defendant Advanced Sterilization Products Services, Inc. ("Advanced") joined in Kelly's motion and set forth additional grounds in support of the motion. Mot. Joinder, Docket No. 39. Plaintiff Mahoo Amin1 ("Amin") filed an opposition? Opp'n, Docket No. 42. Kelly replied, and Advanced joined in the reply. Reply, Docket No. 43; Reply Joinder, Docket No. 45. 1Amin is also known as Seyed M. Fazlollahzade Divkola. Compl., Docket No. 5, Ex. A. 2Amin's opposition was filed eight days late. Notice of Non- Opposition, Docket No. 41; L.R. 7-9. Amin's brief does not acknowledge that it was late-filed, nor explain any excusable neglect. Furthermore, Amin failed to request any extension of time from the Court. Accordingly, it is within the Court's discretion to strike Amin's entire opposition. However, in the interest of reaching the merits, and in the absence of any substantial prejudice to Defendants as a result of Amin's lack of timeliness, the Court wi|| consider the opposition and the arguments advanced therein. However, the Court admonishes Amin, and directs him to strictly comply with all Local Rules in all future proceedings before this Court. Page 2 of 10 2019 U.S. Dist. LEXIS 13254, *2 For the following reasons, the Court grants in part and denies in part the motion to compel arbitration, dismisses Amin's class claims, stays and severs the non-arbitrable claims, and stays this action pending resolution of Barbosa. LBACKGROUND3 Kelly is a global staffing and workforce solutions company that provides temporary employees to its client companies. Declaration of Scott Stewart ("Stewart Decl."), Docket No. 32-1 1T 4. Kelly is based in Michigan and operates throughout the United States. |d_. Kelly hired Amin, a California resident, in June 2016 and assigned him to work at Advanced, one [*3] of its client companies in California. |d_. 11 9, Ex. A. A. The Arbitration Agreement On June 7, 2016, at the commencement of his employment with Kelly, both Amin and Kelly signed an agreement entitled "Dispute Resolution And Mutual Agreement To Binding Arbitration" (the "Arbitration Agreement" or "Agreement"). Q 1T 10, Ex. B. The Arbitration Agreement was presented as a freestanding document, separate from Amin's other new hire paperwork. |d_. 1] 10. The Arbitration Agreement provides: "[Kelly] and | agree to use binding arbitration, instead of going to court, for any 'Covered Claims' that arise between me and Kelly Services [or] its related and affiliated companies." Q, Ex. B. The Agreement provides in bold font: "| understand and agree that arbitration is the only forum for resolving Covered Claims, and that both Kelly Services and | hereby waive the right to a trial before a judge or jury in federal or state court in favor of arbitration for Covered Claims."fl 1T 2. The Abitration Agreement is governed by the Federal Arbitration Act ("FAA"), and for California employees, 3A court may take judicial notice of facts that are readily determinable from accurate sources. Fed. R. Evid. 201(b)(2). Judicial notice is appropriate for court proceedings, if those proceedings have a direct relation to the matter at issue. U._S. ex rel. Robinson Rancheria Citizens Council v. Borneo, |nc., 971 F.2d 244, 248 (9th Cir. 1992). Here, Kelly filed a request for judicial notice. RJN, Docket No. 32-2. The requested documents concern relevant court proceedings. Therefore, the Court grants the request. the California Arbitration Act. |d_., n.1. Furthermore, arbitration under the Agreement is governed by the employment[*4] dispute resolution rules of the American Arbitration Association ("AAA") effective at the time of filing. Q 1] 4. The arbitrator "shall have the authority to award the same damages and other relief" available in court under applicable law, and the Agreement adopts AAA rules for selection of a neutral arbitrator. |d_. 111] 4, 10. The Arbitration Agreement provides for discovery for both parties, applying the Federal Rules of Evidence and the Code of Civil Procedure for the employee's state of residence to all discovery under the Agreement. |d_.1I 11. Finally, Kelly is required to pay "all costs uniquely attributable to arbitration, including the administrative fees and costs of the arbitrator." |d_. 1111 9, 12. "Covered Claims" under the Arbitration Agreement are defined as "all commonlaw and statutory claims relating to my employment, including, but not limited to, any claim for breach of contract, unpaid wages, [or] wrongful termination." |d_. 1T 2. In contrast, the Agreement excludes certain claims from its scope, including "unfair competition claims," among others. Q 1T 3. Lastly, the Arbitration Agreement contains a provision entitled "Waiver of Class and Collective Claims," which provides: [*5] Both Kelly Services and | also agree that all claims subject to this agreement will be arbitrated only on an individual basis, and that both Kelly Services and | waive the right to participate in or receive money or any other relief from any class, collective, or representative proceeding. No party may bring a claim on behalf of other individuals, and no arbitrator hearing any claim under this agreement may: (i) combine more than one individual's claim or claims into a single case; (ii) order, require, participate in or facilitate production of class-wide contact information or notification of others of potential claims; or (iii) arbitrate any form of a class, collective, or representative proceeding. ELH8- B. The Instant Action On July 18, 2018, Amin filed this lawsuit in Orange County Superior Court on behalf of a class defined as: "All non-exempt employees who are or were employed by Defendants and who worked in California at any time during the Class Period . . . excluding all persons with administrative or managerial duties only." Compl., Page 3 of 10 2019 U.S. Dist. LEXIS 13254, *5 Docket No. 5, Ex. A 1T 46. Amin asserts causes of action alleging that Defendants: (1) failed to compensate him for all hours worked in violation [*6] of California Labor Code §§ 200, 226, 226.7, 500, 510, 1194, 1197 and 1198; (2) failed to pay minimum wage, including overtime compensation, in violation of Labor Code §§ 510, 1194, 1194.2, 1197 and 1198; (3) failed to provide meal and rest periods (as well as pay the statutory penalty for missed meal and rest periods) in violation of Labor Code §§ 200, 226.7 and 512; (4) failed to reimburse required business expenses in violation of Labor Code § 2802; (5) failed to furnish accurate, itemized wage statements in violation of Labor Code § 226; (6) failed to timely pay wages due at the time of separation in violation of Labor Code §§ 201-203; and (7) violated the California Business and Professions Code §§ 17200, et seg., through the actions described above, including by allegedly failing to "accurately pay their employees for overtime“ and "fai|[ing] to provide their employees with their statutory meal and rest breaks." |d_. 1m 55-100, 112-124. In addition, Amin asserts a claim for penalties under California Labor Code §§ 2698, et seg., also known as the Private Attorneys General Act ("PAGA"), based on the alleged Labor Code violations described above. |d_. 111] 101-1 1. Amin alleges his claims against both Kelly and Advanced on the theory that they are essentially the same entity. Amin alleges that "each and all of the acts and omissions alleged herein was performed by or is attributable to Defendants [*7] . . . each acting as the agent for the other." a 1T 6. Amin further alleges that "there exists such a unity of interest and ownership" between Advanced and Kelly "that the individuality and separateness of Defendants have ceased to exist" and Advanced and Kelly "are, in reality, one and the same." |d_. 1111 12-13, 16. Thus, Amin contends that Defendants "are [his] joint employers by virtue of a joint enterprise" and that Defendants "shared control of [Amin] as an employee." Q11 15. C. The Barbosa Action On August 26, 2015, Hernando Barbosa ("Barbos") filed suit in the Superior Court of Monterey County, California.E RJN, Docket No. 32-1, Ex. A. The action is captioned Barbosa, et al. v. Kellv Services, |nc., et al., Case No. M133109 (Sup. Ct. Monterey Cty., Cal.) ("Barbosa"). Q; Notice of Pendency, Docket No. 31. On July 12, 2018, Barbosa filed a Fourth Amended Complaint ("FAC") against Kelly on behalf of a putative class of "all current and former Temporary Services Employees hired by Defendants at any time during the Class Period. . . RJN, Docket No. 32-1, Ex. B 1T 54. In relevant part, the Barbosa FAC brings causes of action alleging that Kelly: (1) failed to pay minimum wage [*8] in violation of Labor Code §§ 1197 and 1199; (2) failed to furnish accurate, itemized wage statements in violation of Labor Code §§ 226(3), 1174 and 1175; (3) failed to timely pay wages due upon termination in violation Labor Code §§ 201-203; (4) failed to reimburse required business expenses in violation of Labor Code § 2802; and (5) violated the California Business and Professions Code §§ 17200, et seg., and (6) PAGA through the alleged violations of the California Labor Code set forth in the FAC, including those described above. See id. 1m 74-96, 103-108, 116-135. D. Kelly's Motion On September 13, 2018, after supplying Amin's counsel with a copy of the Arbitration Agreement, Kelly requested that Amin comply with the Arbitration Agreement, dismiss his class claims, and agree to arbitrate his non-PAGA claims on an individual basis. Mot, Docket No. 32 at 6. After Amin refused, Kelly filed the instant motion to compel individual arbitration of Amin's non-PAGA claims, dismiss his class claims, stay his PAGA claims pending individual arbitration, and stay this entire action pending resolution of Barbosa. Id. at 1- 2. |I. LEGAL STANDARD Under the FAA, a party to an arbitration agreement may bring a motion in federal district court to compel arbitration and stay the proceeding pending resolution of the arbitration. [*9] 9 U.S.C. §§ 3-4. Ambiguities as to the scope of the arbitration provision must be interpreted in favor of arbitration. Mastrobuono v. Shearson Lehman Hutton, |nc., 514 U.S. 52, 62, 115 S. Ct. 1212, 131 L. Ed. 2d 76 (1995); see also AT&T Techs. Inc. v. Commc'n Workers of Am., 475 U.S. 643, 650, 106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). The FAA also requires "district courts to compel arbitration even where the result would be the possibly inefficient maintenance of separate proceedings in different forums." Fisher v. A.G. Becker Paribas, |nc., 791 F.2d 691, 698 (9th Cir. 1986). A district court may not review the merits of the dispute when determining whether to compel arbitration. Cox v. Ocean View Hotel, Corp., 533 F.3d 1114, 1119 (9th Cir. Page4 of 10 2019 U.S. Dist. LEXIS 13254, *9 2008). Instead, the FAA limits the district court's role "to determining (1) whether a valid agreement to arbitrate exists and, if it does (2) whether the agreement encompasses the dispute at issue." |d_. (internal citation and quotation omitted). If a valid arbitration agreement exists, a district court must enforce the arbitration agreements according to its terms. Lifescan, Inc. v. Premier Diabetic Servs., |nc., 363 F.3d 1010, 1012 (9th Cir. 2004). A district court applies state contract law to determine whether the parties are required to arbitrate and may consider state-Iaw challenges, such as unconscionability, to the arbitration agreement's validity. fl, 533 F.3d at 1121. A court may consider evidence beyond the complaint in ruling on a motion to compel. See Guadaqno v. E*Trade Bank, 592 F. Supp. 2d 1263, 1266-69 (C.D. Cal. 2008) (examining declarations and exhibits in ruling on a motion to compel arbitration under the FAA). The party seeking to compel [*10] arbitration must prove the existence of an agreement to arbitrate by a preponderance of the evidence standard. Knutson v. Sirius XM Radio |nc., 771 F.3d 559, 565 (9th Cir. 2014). III. DISCUSSION A. The Arbitration Agreement ls Valid and Enforceable, and Covers All of Amin's Claims Except Those Brought Under PAGA and the UCL The Court must compel arbitration where (1) a valid agreement to arbitrate exists, and (2) the agreement encompasses the dispute at issue. Davis v. Nordstrom m, 755 F.3d 1089, 1092 (9th Cir. 2014). Under both federal and California law, an arbitration agreement is valid and enforceable unless the movant waived its right to compel arbitration or the agreement is "revocable for reasons under state law that would render any contract revocable." 9 U.S.C. § 4; Cal. Code Civ. Proc. § 1281.2; see also Tiri v. Lucky Chances, |nc., 226 Cal. App. 4th 231, 239, 171 Cal. Rptr. 3d 621 (2014) (citing Armendariz v. Foundation Health Psychcare Services, m, 24 Cal. 4th 83, 98, 99 Cal. Rptr. 2d 745, 6 P.3d 669 (2000)). Like any contract, arbitration agreements are revocable under state laws if the plaintiff meets his burden to show "fraud, duress, [or] unconscionability." m, 226 Cal. App. 4th at 239. Waiver, fraud, and duress are not at issue in this case. Therefore, the Court turns to unconscionability. 1. Unconscionability Amin argues that the Arbitration Agreement is unenforceable because it is procedurally and substantively unconscionable. Opp'n, Docket No. 42 at 9-17. In California, unconscionability has both a procedural and a substantive element. Armendariz, 24 Cal. 4th at 114. Procedural unconscionability [*11] "addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power." Pinnacle Museum Tower Ass'n v. Pinnacle Mkt. Dev., LLC, 55 Cal. 4th 223, 246, 145 Cal. Rptr. 3d 514, 282 P.3d 1217 (2012). Substantive unconscionability, on the other hand, is present if the contract terms are "overly harsh" or "one-sided." Q While both procedural and substantive unconscionability must exist for a contract to be unenforceable, they need not be present to the same degree. |d_. at 247. The more substantively oppressive the terms are, the less evidence of procedural unconscionability is required to find that the contract is unenforceable, and vice versa. fl The party challenging the arbitration agreement must establish unconscionability. |d_. a. Procedural Unconscionability Procedural unconscionability requires oppression or surprise. Pinnacle, 55 Cal. 4th at 247. "Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form."Q (internal quotations omitted). Amin argues first that the Arbitration Agreement is procedurally unconscionable because it was a contract of adhesion presented on a take-it-or-Ieave-it basis. Opp'n, Docket No. 42 at 10-14. This is confirmed by the Arbitration [*12] Agreement, which provides that employees agree to arbitrate certain claims "in consideration of [their] employment" with Kelly. Stewart Decl., Ex. B. An arbitration agreement that is essentially a "'take it or leave it' employment condition, without more, is procedurally unconscionable." Martinez v. Master Prot. Corp., 118 Cal. App. 4th 107, 114, 12 Cal. Rptr. 3d 663 (2004); see also Armendariz, 24 Cal. 4th at 115 ("In the case of preemployment arbitration contracts, . . . few employees are in a position to refuse a job because of an arbitration requirement"). However, many courts have found that the take-it-or-Ieave-it employment contract scenario results in a minimal degree of procedural unconscionability. See, e.q., Collins v. Diamond Pet Food Processors of California. LLC, No. Page 5 of 10 2019 U.S. Dist. LEXIS 13254, *12 2:13-cv-001 13-MCE-KJN, 2013 U.S. Dist. LEXIS 60173, 2013 WL 1791926, at *4 (E.D. Cal. Apr. 26, 2013); Miquel v. JP Morqan Chase Bank, N.A., No. CV 12- 3308 PSG (PLAX), 2013 U.S. Dist. LEXIS 16865, 2013 WL 452418, at *4 (C.D. Cal. Feb. 5, 2013); Saincome v. Trulv Nolen of Am., |nc.. No. 11-CV-825-JM (BGS), 2011 U.S. Dist. LEXIS 85880, 2011 WL 3420604, at *4- 5, 10 (SD. Cal. Aug. 3, 2011). Therefore, the fact that Amin signed the Arbitration Agreement as a condition of his employment establishes that the Agreement is to some degree procedurally unconscionable. Amin further argues that the Arbitration Agreement was the product of uninformed consent, Li, unfair surprise. Opp'n, Docket No. 42 at 12-13. The Court disagrees. The Arbitration Agreement was not hidden in a "prolix printed form," [*13] but was set forth in its own separate agreement, clearly labeled, with the title "Dispute Resolution and Mutual Agreement To Binding Arbitration" in large font. Stewart Dec|., Ex. B. The Agreement also states in bold font that "arbitration is the only forum for resolving Covered Claims, and that both [Kelly and Amin] hereby waive the right to a trial before a judge or jury in federal or state court in favor of arbitration for Covered Claims." Id. 1T 2. Therefore, the Court is unpersuaded that Amin was not informed of the rights affected by the Arbitration Agreement. Next, Amin argues that the Arbitration Agreement was procedurally unconscionable because it didn't attach the applicable AAA rules. Opp'n, Docket No. 42 at 14-16. This argument is unavailing. Under California law, parties to an agreement can incorporate the terms of another document into the agreement by reference. Trovk v. Farmers Group, |nc., 171 Cal. App. 4th 1305, 1331, 90 Cal. Rptr. 3d 589 (2009); Wolschlaqer v. Fid. Nat. Title Ins. Co., 111 Cal. App. 4th 784, 790, 4 Cal. Rptr. 3d 179 (2003). "For the terms of another document to be incorporated into the document executed by the parties, the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available [*14] to the contracting parties." Collins, 2013 U.S. Dist. LEXIS 60173, 2013 WL 1791926, at *5 (quoting Shaw v. Reqents of Univ. of Ca|., 58 Cal. App. 4th 44, 54, 67 Cal. Rptr. 2d 850 (1997)) (internal quotation marks omitted). Here, the terms of the AAA rules are sufficiently clear and unambiguous to incorporate these rules into the contract by reference.4 Amin cites to certain California cases declining to enforce arbitration agreements because of their failure to attach arbitration rules that were incorporated by reference. Opp'n, Docket No. 42 at 14. However, this Court has previously held, even considering the California cases Amin cites, that "the establishment of a general rule that arbitration rules must be attached to an employment agreement in order to avoid a finding of procedural unconscionability would place arbitration contracts on a different footing than other contracts when it comes to the doctrine of incorporation by reference." Fardiq v. Hobbv Lobbv Stores |nc., No. SACV 14-561 JVS ANX, 2014 U.S. Dist. LEXIS 87284, 2014 WL 2810025, at *5 (C.D. Cal. June 13, 2014) (Selna, J.). Such disparate treatment of arbitration contracts is barred by the Supreme Court. L&T Mobility LLC v. Concepcion, 563 U.S. 333, 366-67, 131 S. Ct. 1740, 179 L. Ed. 2d 742 (2011) ("[W]e have repeatedly referred to the [FAA's] basic objective as assuring that courts treat arbitration agreements like all other contracts.") (internal quotation marks omitted). Therefore, [*1 5] the failure to attach the arbitration rules to the Arbitration Agreement does not render it procedurally unconscionable. Therefore, Amin has made a showing of procedural unconscionability based on the adhesive nature of the contract. However, California law requires Amin also make a showing of substantive unconscionability in order for the Arbitration Agreement to be held unenforceable on unconscionability grounds. fl Armendariz, 24 Cal. 4th at 114. The Court now turns to substantive unconscionability. b. Substantive Unconscionability First, Amin argues that the Arbitration Agreement is substantively unconscionable because it "compels arbitration of the types of claims that employees are most likely to bring against an employer (e.g. contract or tort claims, etc.) and exempts from arbitration claims that the employer is most likely to bring against its employees (e.g. injunctive and/or other equitable relief)." Opp'n, Docket No. 42 at 16. The Court rejects this argument. First, Amin's argument is undermined by the 4Furthermore, the Arbitration Agreement indicates that Amin can access a copy of the AAA employment dispute resolution rules at MyKeIIy.com or upon request from Amin's Kelly Representative. Stewart Dec|., Ex. B 1T 4. Therefore, Amin was put on notice regarding where he could obtain a copy of the relevant arbitration rules. Page 6 of 10 2019 U.S. Dist. LEXIS 13254, *15 fact that he, and not Defendants, seeks injunctive relief in this action. Furthermore, Amin offers no evidence or data demonstrating that allowing provisional relief in court advantages the employer, or [*1 6] that employees are more likely than employers to pursue contract or tort claims. Moreover, there is nothing unconscionable about allowing parties to seek a temporary restraining order or preliminary injunctive relief in court because the California Arbitration Act already authorizes such relief. Baltazar v. Forever 21, 62 Cal. 4th 1237, 1247-48, 200 Cal. Rptr. 3d 7, 367 P.3d 6 (2016) (citing Cal. Code Civ. Proc. § 1281 .8). Second, Amin contends that the choice of law provision stating that "the laws of the State of Michigan" will govern employment-related disputes renders the Arbitration Agreement substantively unconscionable. Opp'n, Docket No. 42 at 8. The Court disagrees. Amin cites no authority to support the claim that the provision is unconscionable. Furthermore, Amin does not identify any specific conflict between California and Michigan law, instead broadly referencing "California's welI-known tendency to extend more protections to employees that in other states." Opp'n, Docket No. 42 at 8. In addition, the Arbitration Agreement does not prohibit the arbitrator from determining whether California law should apply to Amin's claims in arbitration. See Quiroz v. Cavalry SPV l, LLC, 217 F. Supp. 3d 1130, 1138 (C.D. Cal. 2016) (Utah choice of law provision in arbitration agreement did not render it unconscionable, as arbitrator was not prevented from conducting independent [*17] choice of law analysis to determine whether California law might apply to plaintiff‘s claims); Washinqton Mut. Bank v. Superior Court, 24 Cal. 4th 906, 918, 103 Cal. Rptr. 2d 320, 15 P.3d 1071 and n.6 (2001) (party "may seek to avoid enforcement of a choice-of-Iaw provision by establishing that 'substantial injustice' result from its enforcement"). would Third, Amin argues substantive unconscionability because the Arbitration Agreement provides that each party shall bear its own costs and fees "unless the Arbitrator rules otherwise," which Amin contends gives the arbitrator "seemingly unfettered discretion." Opp'n, Docket No. 42 at 9. However, as Kelly points out, the Arbitration Agreement goes on to state that "[s]hou|d applicable law permit that the fees and costs of the prevailing party be paid, then the Arbitrator shall apply the same standards as the court to award such fees and costs." Stewart Dec|., Ex. B 1T 9. Under the Agreement, the arbitrator can only award fees and costs to the extent authorized by applicable law. Therefore, the Court declines to find the costs and fees provision of the Arbitration Agreement substantively unconscionable. Fourth, Amin argues that the shortened limitations period of the Arbitration Agreement is substantively unconscionable. The Court agrees. California [*18] courts have found shortened limitations periods for certain Labor Code claims to be substantively unconscionable because the limitations period for such claims is three or four years. Sandoval v. Republic Servs., No. BC 683815, 2018 Cal. Super. LEXIS 2261, at *10-11 (Cal. Sup. Ct. July 12, 2018) (finding 300-day limitations period for Labor Code claims substantively unconscionable); Martinez v. Master Protection Corp., 118 Cal. App. 4th 107, 116-17, 12 Cal. Rptr. 3d 663 (2004) (finding six-month limitations period for Labor Code claims substantively unconscionable). Therefore, because 300 days is significantly shorter than three or four years, the Court finds that the shortened limitations period is substantively unconscionable. c. Severability Amin argues that the Arbitration Agreement is permeated with unconscionability, and that unconscionable provisions thus cannot be severed, but rather render the entire Agreement void. Opp'n, Docket No. 42 at 17-18. An agreement is “permeated by unconscionability" where it cannot "be cured by striking or removing the contract's unconscionable provisions, but only by augmenting the contract with additional terms." Mercuro v. Superior Court, 96 Cal. App. 4th 167, 185, 116 Cal. Rptr. 2d 671 (2002). Here, the Court finds that only one provision of the Arbitration Agreement is substantively unconscionable - the shortened limitations period. Furthermore, the limitations period provision is amenable to being severed from the remainder [*19] of the Agreement. Accordingly, the Court finds that the Arbitration Agreement is enforceable, but the provision shortening the limitations period in paragraph 6 of the Agreement must be severed. 2. Class Action Waiver Kelly argues that the Court should order Amin to arbitrate his non-PAGA claims on an individual basis based on the class action waiver provision of the Arbitration Agreement. Mot, Docket No. 32 at 15-16. Specifically, the Arbitration Agreement provides that "all claims subject to this agreement will be arbitrated only on an individual basis," that by entering the Agreement, Amin "waiv[ed] the right to participate in . . . any class, collective, or representative proceeding," that Amin Page 7 of 10 2019 U.S. Dist. LEXIS 13254, *19 would not "bring a claim on behalf of other individuals," and that no arbitrator has the authority to arbitrate "any form of class, collective, or representative proceeding" involving claims covered by the Arbitration Agreement. Stewart Dec|., Ex. B 1] 8. Class action waivers are enforceable under both federal and California law. See Concegcion, 563 U.S. at 339-52 (affirming enforcement of class action waivers and holding that the FAA displaces a conflicting state rule); Iskanian v. CLS Transp. Los Anqeles, LLC, 59 Cal. 4th 348, 359-60, 173 Cal. Rptr. 3d 289, 327 P.3d 129 (2014) (state's refusal to enforce class action waiver [*20] preempted by the FAA). Furthermore, Amin does not oppose Kelly's argument that the Arbitration Agreement contains a valid and applicable class action waiver. Accordingly, the Court finds that the Arbitration Agreement bars Amin from asserting class claims covered by the Agreement in either court or arbitration. Therefore, Amin's class claims are dismissed with prejudice, and Amin is compelled to arbitrate on an individual basis. 3. Covered Claims The Arbitration Agreement covers "all common-Iaw and statutory claims relating to [Amin's] employment" with Kelly. Stewart Decl., Ex. B 1T 2. In his Complaint, Amin asserts various statutory claims relating to his employment, including, but not limited to, claims for unpaid wages. Amin claims that Defendants: (1) failed to compensate him for all hours worked in violation of California Labor Code §§ 200, 226, 226.7, 500, 510, 1194, 1197 and 1198; (2) failed to pay minimum wage, including overtime compensation, in violation of Labor Code §§ 510, 1194, 1194.2, 1197 and 1198; (3) failed to provide meal and rest periods (as well as pay the statutory penalty for missed meal and rest periods) in violation of Labor Code §§ 200, 226.7 and 512; (4) failed to reimburse required business expenses in violation of Labor Code § 2802; (5) failed to furnish[*21] accurate, itemized wage statements in violation of Labor Code § 226; (6) failed to timely pay wages due at the time of separation in violation of Labor Code §§ 201-203; and (7) violated the California Business and Professions Code §§ 17200, et seg., through the actions described above, including by allegedly failing to "accurately pay their employees for overtime" and "fai|[ing] to provide their employees with their statutory meal and rest breaks." |d_. 1111 55-100, 112- 124. Amin also asserts a claim for penalties under California Labor Code §§ 2698, et seg., also known as the Private Attorneys General Act ("PAGA"), based on the alleged violations of the California Labor Code described above. Q 1111 101-1 1. The parties do not dispute that Amin's non-PAGA claims are covered by the Arbitration Agreement, with the exception of Amin's UCL claim.E Opp'n, Docket No. 42 at 4. Amin argues that the UCL claim is excluded by paragraph 3 of the Arbitration Agreement, entitled "Exclusions from Agreement," which excludes "unfair competition claims" from coverage. |d_.; Stewart Decl., Ex. B 1T 3. Kelly contends that the UCL claim is also covered because it is based on the same conduct underlying Amin's other covered claims relating to his employment. Reply, Docket No. 43 at 3 n.1. The Court finds that Amin's UCL [*22] claim does not fall within the scope of the Arbitration Agreement. The general provision of the Arbitration Agreement providing that all claims "relating to [Amin's] employment" are covered does not take precedence over the specific exclusionary provision for "unfair competition claims." See Iqbal v. Ziadeh, 1O Cal. App. 5th 1, 12, 215 Cal. Rptr. 3d 684 (2017) ("Where general and specific provisions are inconsistent, the specific provision controls.") (citing Cal. Code Civ. Proc. § 1859). Therefore, the Court rejects Kelly's argument that Amin's UCL claim is covered because it is asserted based on the same underlying employment-related conduct as his other claims. In sum, the Court finds that all of Amin's non-PAGA claims are covered by the Arbitration Agreement, except for the UCL claim. 4. Equitable Estoppel Reqardinq Claims Aqainst Advanced It is undisputed that Advanced is not a signatory to the Arbitration Agreement. However, Defendants argue that the Court should require Amin to arbitrate his individual claims against Advanced as his alleged joint employer under a theory of equitable estoppel. Mot, Docket No. 17-18. Amin does not address this argument in his opposition brief. When a plaintiff's allegations against an alleged joint employer are "sufficiently intertwined" with[*23] his employment relationship, the plaintiff is "equitably estopped from refusing to arbitrate" claims with the alleged joint employer. Sandoval, 2018 Cal. Super. LEXIS 2261 at *7; see also Garcia v. Pexco, LLC, 11 Page 8 of 10 2019 U.S. Dist. LEXIS 13254, *23 Cal. App. 5th 782, 787-88, 217 Cal. Rptr. 3d 793 (2017) (plaintiff compelled to arbitrate against nonsignatory employer because claims were "rooted in his employment relationship with" the signatory staffing agency, and the arbitration agreement covered the claims the plaintiff brought against the employer); Metalclad Corp. v. Ventana Env. Orq. Partnership, 109 Cal. App. 4th 1705, 1713, 1 Cal. Rptr. 3d 328 (2003) ("[T]he equitable estoppel doctrine applies when a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory defendants for claims that are 'based on the same facts and are inherently inseparable. . . .'"). Here, Amin alleged his claims against both Kelly and Advanced collectively, claiming that each Defendant acted "as the agent for the other." Compl., Docket No. 5, Ex. A 1T 6. Amin alleges that "each and all of the acts and omissions alleged herein was performed by or is attributable to Defendants," that due to the "unity of interest and ownership" between Defendants, "the individuality and separateness of Defendants have ceased to exist," and that Defendants "are, in reality, one and the same." |d_. 1m 12-13, 16. Finally, Amin alleges that Defendants [*24] "are [Amin's] joint employers by virtue of a joint enterprise," and that both "Defendants shared control of [Amin] as an employee." |d_.1I 15. Accordingly, the Court finds that Amin is equitably estopped from refusing to arbitrate his employment claims against Advanced. B. Amin's PAGA and UCL Claims Are Severed and Stayed As discussed above, all of Amin's claims fall within the terms of the Arbitration Agreement except his UCL and PAGA claims. Under both the FAA and California law, when an action has been ordered to arbitration, the proceedings "shall" be stayed pending completion of arbitration. 9 U.S.C. §§ 3, 4; Cal. Code Civ. Proc. § 1281.4. California courts have held that claims not subject to arbitration, fl, representative PAGA claims, should be stayed pending conclusion of arbitration. See lskanian, 59 Cal. 4th at 383-84; Franco v. Arakelian Enters, |nc., 234 Cal. App. 4th 947, 966, 184 Cal. Rptr. 3d 501 (2015) ("Because the issues subject to litigation under the PAGA might overlap those that are subject to arbitration of [plaintiff's] individual claims, the trial court must order an appropriate stay of trial court proceedings . . . to preserve the status quo until the arbitration is resolved, preventing any continuing trial court proceedings from disrupting and rendering ineffective the arbitrator's jurisdiction to decide the issues that [*25] are subject to arbitration"); Grav v. Conseco, |nc., No. SA CV 00-322 DOC (EEx), 2000 U.S. Dist. LEXIS 14821, 2000 WL 1480273, at *8 (C.D. Cal. Sept. 29, 2000) (staying non- arbitrable UCL claim to "promote judicial economy and efficiency" when the "overwhelming majority of the claims are arbitrable" and the "non-arbitrable claim is based on exactly the same facts and issues as the arbitrable claims"). Here, Amin's non-arbitrable UCL and PAGA claims are based on the same conduct and issues as his arbitrable claims. Accordingly, the Court severs and stays Amin's claims under the UCL and PAGA pending arbitration of Amin's remaining claims. C . Colorado River Abstention Kelly argues that the court should stay this action under Colorado River pending resolution of the earlier-filed Barbosa action pending in California Superior Court to avoid duplication and potentially inconsistent rulings. Mot, Docket No. 32 at 19-25. Amin fails to address this argument in his opposition brief. In limited circumstances, federal courts may abstain from exercising jurisdiction even when they have subject matter jurisdiction over the action. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716-17, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (1996). Among the various abstention doctrines, the Colorado River doctrine provides that federal courts may abstain from exercising jurisdiction when there are parallel [*26] state court proceedings involving the same matter. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813- 14, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976). To invoke Colorado River, "exact parallelism . . . is not required. It is enough if the two proceedings are substantially similar." Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989) (internal quotation marks omitted). Nevertheless, the U.S. Supreme Court has "carefully limited Colorado River, emphasizing that courts may refrain from deciding an action for damages only in 'exceptional' cases, and only 'the clearest of justifications‘ support dismissal." R.R. St. & Co. Inc. v. Transg. Ins. Co., 656 F.3d 966, 978 (9th Cir. 2011) (quoting Colorado River, 424 U.S. at 818-19); see also Nakash, 882 F.2d at 1415 ("Colorado River abstention should be invoked only in 'exceptional circumstances.” Page 9 of 10 2019 U.S. Dist. LEXIS 13254, *26 (citation omitted»; Smith v. Central Ariz. Water 2. Colorado River Factors Conservation Dist, 418 F.3d 1028, 1033 (9th Cir. 2005) ("[T]he Colorado River doctrine is a narrow exception to the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." (internal quotation marks and citations omitted». To determine whether a stay or dismissal under Colorado River is appropriate, the court must first determine whether the federal and state actions are sufficiently parallel. RR. St. & Co. |nc., 656 F.3d at 978, 982. The court must then consider a series of factors and determine whether they favor staying or dismissing the proceedings. |d_. at 978. 1. Substantially Similar As a threshold matter, the Court must first determine "whether the federal and state [*27] actions are sufficiently 'paralleI'-i£ whether substantially the same parties are contemporaneously litigating the same issues in different forums." In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1170 (C.D. Cal. 2008) (internal quotation marks and citation omitted). Exact parallelism is not required; rather the two proceedings only need to be "substantially similar." Nakash, 882 F.2d at 1416. The Court finds that this matter and the Barbosa action are "substantially similar." Both cases involve Kelly employees claiming violations of various provisions of the California Labor Code, including the failure to pay minimum wage, the failure to reimburse repeated business expenses, the failure to furnish accurate, itemized wage statements, and the failure to timely pay wages upon termination.E Comp|., Docket No. 5, Ex. A 111] 64-74, 82-100; Barbosa FAC, RJN, Ex. B 1m 74-96, 103-08, 132-36. Both Amin and Barbosa also assert UCL and PAGA claims based on the conduct described above. fl Compl., Docket No. 5, Ex. A 1111 101-24; Barbosa FAC, RJN, Ex. B 1111 116-31. While the claims in the two cases are not identical because Amin asserts additional employment-related claims, the cases are "substantially similar" because they involve many common questions of law and fact, such as whether [*28] Kelly failed to pay minimum wage, reimburse required business expenses, provide accurate wage statements, and pay wages due at the time of termination. In sum, the Court concludes that this action is "substantially similar" to the Barbosa action such that the Court will consider the remaining Colorado River factors. The Ninth Circuit has identified eight factors that courts should consider when determining whether to stay or dismiss under Colorado River: (1) which court first assumed jurisdiction over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal law or state law provides the rule of decision on the merits; (6) whether the state court proceedings can adequately protect the rights of the federal litigants; (7) the desire to avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court. Seneca Ins. Co., Inc. v. Stranqe Land. |nc., 862 F.3d 835, 841-42 (9th Cir. 2017) (quoting RR. St. & Co. |nc., 656 F.3d at 978-79). The first two factors are neutral because there is no specific property at stake in this case, and neither the state nor federal forum has any significant advantage as to convenience. [*29] The third factor favors abstention because allowing this case to proceed would result in piecemeal litigation. As noted, the instant action and the Barbosa action involve substantially similar claims and questions of law and fact. See supra, section |||.C.1. Allowing Amin's claims to proceed in federal court while substantially similar claims are proceeding in state court would result in a waste of judicial resources and possibly different results regarding the same underlying claims. See Roldan v. Fresenius Med. Care N. Am., No. CV 17-04341 JVS (Ex), 2017 WL 8186755, at *4 (C.D. Cal. July 24, 2017); Clarke v. First Transit, |nc., No. CV 07-6476 GAF (MANX), 2008 WL 11281125, at *4-5 (C.D. Cal. Feb. 7, 2008). Therefore, this factor favors staying Amin's federal action. The fourth factor favors abstention because Barbosa precedes this action by nearly three years. Barbosa filed his lawsuit on August 26, 2015.E RJN, Ex. A. The Barbosa court has also already resolved multiple challenges to the pleadings; the FAC (the current operative complaint) was filed on July 12, 2018. E RJN, Ex. B. In contrast, Amin filed the instant action on July 18, 2018. fl Compl., Docket No. 5, Ex. A. Therefore, because the state court first asserted jurisdiction, this factor favors abstention. Page100f10 2019 U.S. Dist. LEXIS 13254, *29 The fifth factor favors abstention because [*30] Amin brings his claims under California statutes and regulations regarding wage and employment law. E Compl., Docket No. 5, Ex. A. As a result, California law will be applied to decide the merits of Amin's claims. Therefore, state law provides the rule of decision on the merits, and this factor favors abstention. The sixth factor favors abstention because the state court proceedings will adequately protect Amin's rights. As noted, Barbosa and Amin's suit involve substantially similar issues of fact and law. Furthermore, this factor favors abstention where "the state court has authority to address the rights and remedies at issue in this case." R.R. Street & Co., 656 F.3d at 981. Here, the state court clearly has authority to address Amin's purely state-Iaw claims. Therefore, this factor favors abstention. The seventh factor favors abstention because, as noted, Barbosa previously brought the majority of Amin's claims on behalf of a putative class (which includes Amin) in state court. Rather than attempting to intervene in Barbosa or to bring individual claims on his own behalf, Amin seeks to re-assert claims pending in Barbosa on behalf of individuals also included in the Barbosa class in a different forum. Therefore, [*31] this factor favors abstention. The eighth factor is neutral. The state court proceedings will not resolve all issues before the federal court, Li result in a comprehensive disposition of Amin's litigation, because the instant suit involves meal and rest period claims which are not at issue in Barbosa. See Comp|., Docket No. 5, Ex. A 111T 75-81. However, the vast majority of issues in Amin's action will be resolved by the resolution in Barbosa, including whether Kelly failed to pay minimum wages, reimburse required business expenses, provided accurate wage statements, and paid wages due at the time of termination. In sum, all of the Colorado River factors are neutral or weigh in favor of abstention. Furthermore, Amin does not address Colorado River abstention in his opposition brief, and thus fails to present arguments to overcome abstention based on a balancing of the factors described above. Therefore, on balance, the Coloradom factors weigh in favor of abstention. Accordingly, the Court stays this action under Coloradom pending resolution of Barbosa. The direct consequence is that the Court's order to arbitrate is stayed. IV. CONCLUSION For the foregoing reasons, the Court [*32] grants in part and denies in part the motion to compel arbitration, dismisses Amin's class claims, stays and severs the non-arbitrable claims, and stays this action pending resolution of Barbosa. |T IS SO ORDERED. End 0f Document