ISKANIAN v. CLS TRANSPORTATION OF LOS ANGELES

Respondent’s Answer Brief on the Merits

Cal.February 19, 2013

S$204032 | IN THE SUPREME COURT SUPREME COURT OF THE STATE OF CALIFORNIA FILED ARSHAVIR ISKANIAN, FEB 19 2013 Appellant, Frank A. McGuire Clerk VS. Deputy _ CLS TRANSPORTATION LOS ANGELES,LLC,et al., Respondents, After Decision By TheCourt OfAppeal, Second Appellate District, Division Two Case No. B235158 From the Superior Court for Los Angeles County Assigned for All Purposes To Judge Robert Hess, Department 24 . Case No. BC356521 RESPONDENT’S ANSWERBRIEF ON THE MERITS de DAVID F. FAUSTMAN LEO V. LEYVA, (SBN 081862) (admitted pro hac vice) YESENIA M. GALLEGOS COLE, SCHOTZ, MEISEL, (SBN 231852) FORMAN & LEONARD,P.A. CRISTINA ARMSTRONG | Court Plaza North (SBN 246156) 25 Main Street NAMAL TANTULA Hackensack, NJ 07601 (SBN 247373) Phone: (646) 563-8930 FOX ROTHSCHILD LLP Fax: (201) 678-6294 1800 Century Park East, Suite 300 Los Angeles, California 90067 Phone:(310) 598-4150 Fax: (310) 556-9828 Attorneysfor Defendant and Respondent CLS Transportation Los Angeles, LLC 0 $204032 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ARSHAVIR ISKANIAN, Appellant, VS. CLS TRANSPORTATION LOS ANGELES,LLC,et al., Respondents, After Decision By The Court Of Appeal, Second Appellate District, Division Two Case No. B235158 From the Superior Court for Los Angeles County Assigned for All Purposes To Judge Robert Hess, Department 24 Case No. BC356521 RESPONDENT’S ANSWER BRIEF ON THE MERITS DAVID F. FAUSTMAN LEO V. LEYVA, (SBN 081862) (admitted pro hac vice) YESENIA M. GALLEGOS COLE, SCHOTZ, MEISEL, (SBN 231852) FORMAN & LEONARD,P.A. CRISTINA ARMSTRONG Court Plaza North (SBN 246156) 25 MainStreet NAMAL TANTULA Hackensack, NJ 07601 (SBN 247373) Phone: (646) 563-8930 FOX ROTHSCHILD LLP Fax: (201) 678-6294 1800 Century Park East, Suite 300 Los Angeles, California 90067 Phone: (310) 598-4150 Fax: (310) 556-9828 Attorneys for Defendant and Respondent CLS Transportation Los Angeles, LLC 0 I. IIL. TABLE OF CONTENTS Page(s) INTRODUCTION AND SUMMARY OF ARGUMENT... 1 STATEMENT OF THE CASE...ceeeeccecesnecenseeeeseeeersneseseeeeeecnes 4 Appellant Voluntarily Signed An Arbitration Agreement Waiving His Participation In Class And Representative Actions. ...........008 4 Prior to Gentry, Respondent Sought To Compel Arbitration Of Appellant’s Individual Claims In Response To A Purported Class Action Filed By Appellant. 00.0... eectscsescesseeteereeeeeeeeeereeeenees 5 Gentry Required Respondentto Litigate. 0.0... ieeeseseeeseesseeeeneeeees 6 In 2011, Gentry Was Impliedly Overruled By The U.S. Supreme Court In Concepcion, and Respondent Immediately RenewedIts Petition To Compel Arbitration. ..... 0.ceceeereeeereeneereieeneeees 7 DISCUSSION oo... eeccccccccccceseceeeeeeeeeneeeeeeenneeeneeeneesssesteeeessiessseesessuesags 8 Federal Law Mandates Enforcement Of The Arbitration ASLCCMENH. oo... ecceeeceeteseeeeessereaeeseseseesseeesenaeesnaeseegesecaaeaeeeeseseeeeeeneans 8 Gentry Is No Longer Good Law......ccecccsccseseeseeseneensertecesnneeneeeeees 9 1. The Arbitration Agreementis consistent with Federallaw......... 10 2. Justice Baxter’s dissent in Gentry is directly on point................ 12 3. The Gentry test derives its meaning from the fact that an agreementto arbitrate is at ISSUE. ........ceeeteseeeceteeteereneertetneeteeerees 13 4, Thereis no principled distinction between Gentry and Discover 951017)aSEEETE ESSE OETESSSSOSSESSSSSSSOOOSSSESSOSSESEOOSESS‘S 14 The Waiver of a PAGA Representative Action Is Enforceable. ..... 17 1. PAGAis unconstitutional. 00... eee ceesessecsseeereeeseeeetserseeeesneeeens 18 2. Appellant’s PAGA claimis time-barred.................deceeeseseseeeenens 19 3. A PAGA claim may be broughtas an individual action.............. 20 4. A PAGArepresentative action is merely a procedural mechanism not a substantive right...eeeeseeeseeeeeeeeseesseeeneeeeeereeeenreesaeeeeaeeey 22 D. The Class and Representative Action Waiver Does Not Infringe On Employee Rights Under Federal Labor Laws...ceeeeeeseeneees 26 E. Respondent Did Not WaiveIts Right To Arbitrate. 0.0... 31 1. Thetrial court’s ruling based on substantial evidence in the Record is entitled to deference. ..0.eeeee seeeseseeeeeeseenessneeeessnnerees 31 2. Respondentacted consistently with its intent to arbitrate............ 31 3. Appellant has not shown prejudice by the supposed “delay.”..... 35 a. Nothing wasgainedin litigation that could not be gained in ATDITFATION. 0... ..ccceeeccesecetecenneeeeneeeseteneesseaeesenseteneeeeessuscesaueesesesosseerenes 38 b. The expense of time and moneyis not dispositive... 39 TV. CONCLUSION 2.0... cccceccecececceececeecesecneeseseeeessaesesaesesseensessessenseeeaes 39 il TABLE OF AUTHORITIES Page(s) STATE CASES Adolph v. Coastal Auto Sales (2010) 184 Cal.App.4th 1443 oes37 Amalgamated Transit Union Local 1277 v. Los Angeles County Metro. Trans. Auth. (2003) 107 Cal.App.4th 673 oececceceeeeeeceeeeeeeeees 8 Amalgamated Transit Union Local 1756 v. Superior Ct. (2009) 46 Cal.4th 993 ooo ecccceeeeeeeeeteeeeeetseteereseneeeenesLeecatesneteeeeneceneteates 2,22 Amaral v. Cintas Corp. 2 (2008) 163 Cal.App.4th 1157 oo... ccceeccceceeeerees22 Arguelles-Romero v. Superior Court. (2010) 184 Cal.App.4th 825.00... 17 Arias v. Superior Court (2009) 46 Cal.4th 969 oo. cccccsteseseneteetereterse renee 18, 22, 24 Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal4th 83 ooocccccccccccccsesseeseeseeneernessesseetieesesecserecnseessesneeensesseeseenneess24 Augusta v. Keen & Associates (2011) 193 Cal.App.4th 331 csscccscsssssceneeee37 Brown v. Ralphs, (2011) 197 Cal.App.4th 489, review denied (Oct. 19, 2011, Case No. S195850)....cceeeeseccsesseeeeeesetseeesseecseesseesseseseesseesseeeaeens 7, 16,17 Burton v. Cruise (2011) 190 Cal.App.4th 939 oo... ccccccseeseseeetessressererenenarenes 37 Christensen v. Dewer Dev. (1983) 33 Cal.3d 778 v...cccccccccesseetseeenseeesseeeteeeees 31, 36, 39 Clancy v. Superior Court (1985) 39 Cal.3d 740 .cceccseeceeeeenreeseterenecens 18 County ofSanta Clara v. Superior Court (2010) 50 Cal.4th 35.0...eee18 Davis v. Cont’l Airlines, Inc. (1997) 59 Cal.App.4th 205 ...ccccccccceeteeeeeeees 35, 37, 38 Discover Bank v. Superior Ct. (2005) 36 Cal.4th 148 oo...cecepassim Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951...eee31 Franco vy. Arakelian Enterprises, Inc., (2012) 211 Cal.App.4th 3 14 beeeeutaseeens 16 Gentry v. Superior Court (2007) 42 Cal.4th 443 oo.rrienenespassim Groom v. Health Net (2000) 82 Cal.App.4th 1189.0...cccceeeteteererteenees 35 ili Guess?, Inc. v. Super. Ct. (2000) 79 Cal.App.4th 553 oeeeeeeeesererseeerees 36 Hoover v. Am. Income Life Ins. Co. (2012) 206 Cal.App.4th 1193...37 In re Application ofLavine (1935) 2 Cal.2d 324 oo. eeeceseseesecsseserseetsaes 18 Kinecta v. Alternative Fin. Solutions, Inc. v. Superior Court (2012) 205 Cal.App.4th 506... cceececeecerereenesieersireeeetieceietrieenenseeneeeseeniae 17 Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436...cececeeereneeereeeneseereesneessnessnaeereee 37 Merco Constr. Eng’rs, Inc. v. Mun. Ct. (1984) 21 Cal. 3d 724...18 Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th LL1S ieecccececscesssesseeceseeceseecesseeesseeeeneeeeesnessesneseesaeeeessasecsseseseeseceeanes28, 29 Philips v. Sprint PCS (2012) 209 Cal.App.4th 758 .....cccccseeeteseenetenees33 Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 119 occcceeereeeeneeees 21 Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832.0... cece35 Saint Agnes Med. Ctr. v. PacifiCare of Cal. . (2003) 31 Cal.4th 11870.ceceeee eeetesesereenerneeseeeteesieens 31, 35, 36, 39 Screen Extras Guild v. Superior Court (1990) 51 Cal.3d LOT...cece9 Sharon v. Superior Court (2003) 31 Cal.4th 417... ccessceeeteterseeeneenes22 Sobremente v. Superior Court (1998) 61 Cal.App.4th 980 oo...eee35, 37 Walnut Producers ofCal. v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634occcesssseesenecssessenseensenesssessesesensenieas 34 Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th QOG woe. eecccccccssccsscsssescsesseeneeccseeseeseeecieeceeeeseneesaeeerieeeeaeenneeesneenseseaeeeeneeengees 12 Wilson v. Department ofPublic Works, 271 Cal.App.2d 665 (1969)..........20 FEDERAL CASES | AT&TMobility LLC v. Concepcion (2011) 563 U.S. __., 131 S.Ct. 1740 ooececccccccccccccsecssceeseesteccesecseeeseeeeneseneeesseeeseeenseeseseeeseseesseesaeseneeeesnnesnaeenigspassim Booker v. Robert HalfInt’l (D.C. Cir. 2005) 413 F.3d 77 .ccccccseeseetereeeeees 1] iv Borrero v. Travelers Indemnity Co. (E.D.Cal. Oct. 15, 2010) oon34 Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105eeeeeeeeeeeteeees 8,11 CompuCredit Corp. v. Greenwood (2012) 565 U.S. 132 S.Ct. 665eeeee ene cereceeeernteriseeesnteneneennees 3, 26, 28 D.R. Horton (2012) 357 N.L.R.B. 184 ooo. ceeccececeeesceeecseceeseeceaceeseeerseeeseeenseeeaae 3 D.R. Horton, Inc. (Jan. 6, 2012) 357NLRB 184, 2012 WL 36274.......26, 27 Equal Emp ’t Opportunity Comm’n v. Waffle House, Inc. (2002) 534 U.S. 279 ooiccccccsccessscecneceseeseeseeeereeeeseseeaeeesenaeeesaeesesneeree 11 Estrella v. Freedom Financial Network LLC (N.D.Cal. Jan. 24, 2012) No. CV 09-03156 SI, 2012 WL 214856oeeeeeesseeererens 33 Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986) 791 F.2d 691.32 Gilmerv. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20... 10, 28 Grabowski v. C.H. Robinson Co. (S.D.Cal. 2011) 817 F.Supp.2d 1159...eee 26, 30, 33, 37 Green Tree Fin. Corp. v. Randolph (2000) 531 U.S. 79 ..cccceseseesreens 10, 11 Hoffman Plastic Compounds Inc. v. NLRB (2002) 535 U.S. 137.........28, 29 In Re Toyota (2011) 828 F.Supp.2d 1150.0... cceecceeseeseeseeeteeesteetteeerenes34 Kaltwasser v. AT&T Mobility LLC (N.D. Cal. 2011) 812 F.Supp.2d 1042.ceeeceeeeescreecseeesesneessesenecneesereeseesesseeeneeegs 11 Kilgore v. Keybank Nat'l Assn. (9th Cir. 2012) 673 F.3d 947.eee25 Kingsbury v. Greenfiber LLC (C.D.Cal. June 29, 2012), No. CV08— 00151-AHM (AGRx), 2012 WL 2775022........cecuesessseseeseseccassecsaesaeseeaseas 34 Letizia v. Prudential Bache Secs., Inc. (9th Cir. 1986) 802 F.2d 1185 ....... 32 Lewis v. UBS Fin. Servs. Inc. (N.D.Cal. 2011) 818 F.Supp.2d 1161... 16 Lima v. Gateway, Inc. (C.D.Cal. Aug. 7, 2012) No. SACV 09- 01366, 2012 WL 3594341 oieeccccececeseeeeteeeseeecenseneneeeeseseeessnesesenaeess 33 Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth (1985) 473 US. 614 ic cecccccccecsecseceneeceneceeeeseaeecaeeseeeeeeseeesseceesenieesieeseassenaeeneeeeentens 10 Moreno v. Autozone, Inc., (N.D.Cal. June 5, 2007), No. C05-04432 MIJ, 2007 WL 1650942 ooo eeceeecceeseeeteereneerneetieeseneeesneeenaeeeseesseeeeentees 20 Morse v. Servicemaster Global Holdings Inc. (N.D.Cal. July 27, 2011) No. C10-00628, 2011 WL 3203919eecteeteeeneeeeeeernrene 16 Morvant v. P.F. Chang’s China Bistro, Inc. (N.D.Cal. 2012) 870 F.Supp.2d 831...eeeee eeeseeeenereeeesseeseneeeeneees29 Moses H. Cone Mem’! Hosp. v. Mercury Const. Corp. (1983) 460 U.S. Leccecee eeceeceeeeeeeseeneesnaeesseesreseeeenssesesesesesenseneegs 8,31 Murphy v. DirecTV, Inc. (C.D.Cal. Aug. 2, 2011) No. 2:07-cv- 06465, 2011 WL 3319574.eeeceeeseeeteeeeeeeseerneeseeeeaeeeeeeneneeateteees 16 Myers Indus. & Prill (1984) 268 NLRB 493oecece eeeeceeteeeneeteeeeeens 29 Nelson v. AT&T Mobility LLC (N.D.Cal. Aug. 18, 2011) No. C10— 4802, 2011 WL 3651153 occ cceeceeeesesteneteeeeeeseeteneeeesenenteenenereeseeenereeeten26 Noel Canning v. NLRB, _ F.3d __ (D.C. Cir. Jan. 25, 2013), 2013 WL 276024ooo. .cescesscscecssccsnecsteeseceeeeeeeeeecenseseneesseceneesseeeeseuseseeessuessseeesseees28 Owenv.Bristol Care, Inc. (8th Cir. 2013) 702 F.3d 1050ee3, 28 Perry v. Thomas (1987) 482 U.S. 483 ..ccccccecsecesesseseestesseeeesteereeeeneen9, 25 Plows v. Rockwell Collins, Inc. (C.D.Cal. 2011) 812 F.Supp.2d 1063 .......33 Preston v. Ferrer (2008) 552 U.S. 346 ec ecenceseeeeceecereneereneeesereeeessaees25 Quevedo v. Macy’s, Inc. (C.D.Cal. 2011) 798 F.Supp.2d 1122 .......... passim Shinto Shipping Co., Ltd. v. Fibrex & Shipping Co. (9th Cir. 1978) 572 F.2d 1328 vcccccccsccessccsccceseecsneceseeeseesieeeseceeessnesesesenesseeauessaesenneessaees 35 Southland Corp. v. Keating (1984) 465 ULS. Lovee cee ceteneereeteeeteeneee24 Thomas v. Home Depot USA Inc. (N.D. Cal. 2007) 527 F.Supp.2d LOO3 voeceecseccesssessccseecseseseeseeeeceereneeeeeeeeneenseseseceneseeeseresesnaesesesenasesssaeeesgeey 19 Valle v. Lowe’s HIW, Inc. (N.D.Cal. Aug. 22, 2011) No.11-1489 SC, 2011 WL 3667441 oo. eeeeeceeereteneeeetereserieereeeeseeesseeesnaeeeneeeneeesearenss 16, 26 vi Webster v. Perales (N.D. Tex. Feb. 1, 2008), No. 3:07-CV-00919- M, 2008 WL 282305 voocciicccccccccccsessccceceseensseceeeeeeceescensssaseersesecessaaaaaaaeaes27 STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS Age Discrimination in Employment Act 0f 1967.00... cccceseseeseeseeseeeseereeesens 15 Cal. Const. of 1849, Article TID, §1 oo...ccceccsseccenrecesnereeseneetenssesseneeerseeetes 18 Cal. Labor Code § 2699(a).......cccescecceesteeeseeseenseecessseeesseessessesessseesssseeesensaeeenas21 Cal. Labor Code § 2699.3 vvcccccscssesssesssessesssssessseseessstsssseseeseessieseeseeseeseesseesen24 Cal. Labor Code § 2699(a)......ccccccseseeneeeteteenereieienerienteienenenereseeneninetees24 Cal. Labor Code § 2699(€)(2) ...ccccccccscssesesecereneceneeeneereeeaeseerteneenssseeseneueneeseees 23 California Code of Civil Procedure § 382 wo... eeesecceeeresssseceesseeeeseenennerens 17 California ConstitUtion......cc.ccccceeeceeceeeeereeesteeeenneeeeneresseseesennaeeessseeneeeeessneeenes 18 Private Attorney General Act of 2004, Cal. Labor Code § 2698et SOQ .escescccssccseeneesreeseenevecsrecnecnseseesessesressessecsesscenasssessesnrerseeeecneseaeeesieerseeteenaginspassim FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS 29 U.S.C. § UST cicccccccccceseenecereeneeneenecneeesesssecreesesesesnesssesensesieesesneeeineesorenntenes 30 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C.Cir. 1987),cert. denied 487 U.S. 1205 (1988)...eee ececeeeecessereeeseesnesenseeneeseeseeesearenteenarens29 Federal Arbitration Act, 9 U.S.C. § 1 €t S€Q.....ceceence reer e terre renter enterspassim Vil I. INTRODUCTION AND SUMMARY OF ARGUMENT Thereis a strong public policy in favor of arbitration under both state and federal law. Arbitration agreements are to be enforced according to their terms. Anystate statute or judicial rule that applies only to arbitration agreements, and not to contracts generally, is preempted by the Federal Arbitration Act (FAA). The United States Supreme Court recently madethis clear in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___, 131 S.Ct. 1740 (Concepcion). In Concepcion, the Court specifically rejected the notion that California’s rule invalidating class action waivers in arbitration agreements in the consumer context was merely a refinement of the unconscionability analysis applicable to all California contracts. The Court determined that the holding of Discover Bank v. Superior Ct. (2005) 36 Cal.4th 148 (Discover Bank), interfered with the FAA’s purpose of enforcing arbitration agreements according to their terms. Under the FAA, an arbitration agreement can be invalidated “only upon such groundsas exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2 (emphasis added).) Under the Supremacy Clause of the U.S. Constitution, any statute or court decision that interferes with the enforcement of an arbitration agreement is preempted and invalid under the FAA. Appellant’s Opening Brief (OB)rests on the misguided premise that waiver ofa class or representative claims in the employment contextis somehowdifferent from such a waiver in a consumersetting. Appellant incorrectly contends that such a waiver prevents “effective vindication” of substantive “unwaivable”rights, and that Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), is still good law. There is simply noprincipled basis, however, on which to distinguish Gentry from the now-overruled Discover Bank. Both Gentry and Discover Bank rested on a similar analysis to determine that class waivers in arbitration agreements are unenforceable. Gentry relied heavily on Discover Bank. Concepcion makesit clear that “states cannot require a procedure that is inconsistent with the FAA,evenif it is desirable for unrelated reasons.” (131 S.Ct. at 1753.) Thus, the holding in the U.S. Supreme Court’s Concepcion must be extended to Gentry. Appellant’s oft-repeated description of class and representative actions as “unwaivable rights” does not transform them into such. There is no support for the contention that class and representative actions are substantive rights not subject to waiver. The underlying substantive rights in this case, which Respondent concedes may not be waived, are found in the wage and hourprovisions of the California Labor Code. Those unwaivable rights can be vindicated in individual arbitrations. Sixty membersofthe putative class have opted-out and are doing just that. It is purefiction to contendthatparticipation in a class or representative action is somehowan “unwaivable”right. (See Gentry, 42 Cal.4th at 473-81 (Dissent, Justice Baxter).) Similarly, the preemptive effect of the FAA requires enforcement of the waiver of Appellant’s representative action under the Private Attorney General Act (PAGA), Cal. Labor Code § 2698 et seq. PAGA does not confer any “substantive right.” Individuals hold no entitlement to bring a PAGArepresentative action. PAGA does not provide employees with property or any other substantive right, and PAGApenalties are discretionary. PAGAprovides an alternative procedureto the State’s enforcement of the Labor Codethat is only available to an individualif the State does not take action, and if no other individual makes It to the courthousefirst. As this Court has held, PAGA is merely procedural. (Amalgamated Transit Union Local 1756 v. Superior Ct. (2009) 46 Cal.4th 993, 1003.) An individualcanstill vindicate his or her statutoryrights under the Labor Codein an arbitration without the procedural mechanism 2 of a private attorney general representative action. In this case, Appellant did not even perfect his PAGA claim in a timely manner. Appellant’s assertion that the waivers of class and representative actions infringe on his statutory rights under the National Labor Relations Act (NLRA)is based on D.R. Horton (2012) 357 N.L.RB. 184, a controversial administrative decision that is not entitled deference. An agreementto arbitrate must be enforced accordingto its terms, even when federal statutory claims are at issue, unless Congress has stated otherwise. (CompuCredit Corp. v. Greenwood(2012) 565 U.S. ___,132 S.Ct. 665, 668.) Absent a clear statement in a federal statute showing Congressional intent to override the useof arbitration, the FAA mustprevail. (/d.) Neither CompuCredit nor Concepcion made any exception for employment-related disputes. There is no “congressional command”in the NLRA prohibiting enforcement of an arbitration agreement pursuant to its terms. Appellant’s attempt to hold arbitration agreements in the employment context to a different standard than other contracts directly conflicts with the FAA’s mandate that arbitration agreements will must be enforced. (9 U.S.C.§ 2. See Owen v. Bristol Care, Inc. (8th Cir. 2013) 702 F.3d 1050.) Finally, Appellant has not met his heavy burden to show that Respondent waivedits right to arbitrate. Respondent never acted ‘inconsistently with its right to enforce arbitration. Respondent immediately soughtto arbitrate Appellant’s individual claims just weeks after Appellant filed a putative class action. Respondent had no choice but to engagein the litigation process whenits arbitration clause became unenforceable, as conceded by both parties, under Gentry. It is ridiculous to claim that a party acts inconsistently with a right to arbitrate where it does not seek to enforce an arbitration agreementthat is unenforceable underexisting law. Theresulting participation in litigation cannot result in a waiver. Further, Appellant has not shownthat he suffered prejudice. Based on substantial evidence in the record, the trial court found no waiver. Accordingly, the judgment of the court below mustbe affirmed. The FAA controls, and Respondent did not waiveits right to compel arbitration. Il. STATEMENT OF THE CASE CLS Transportation Los Angeles LLC (“Respondent”) provides | limousine andother transportation services. Appellant worked as a chauffeur for Respondent for 17 months, from March 8, 2004 through August 2, 2005. (1 Appellant’s Appendix (“AA”) 66-69.) A. Appellant Voluntarily Signed An Arbitration Agreement Waiving His Participation In Class And Representative Actions. In December 2004, Appellant voluntarily signed a Proprietary Information and Arbitration Policy/Agreement(“Arbitration Agreement”) in conjunction with a settlement agreement in which Appellant received $1,350.00. (1 AA 66-69, 71-73, 75-83.) He agreed notto file any complaint against the Companyin state court. Ud. at 72.) Rather, he agreed to arbitrate all disputes and specifically promised notto file a “class action”or a “representative action”. (/d. at 72, 81.) He was provided an opportunity to consult counsel before signing. (U/d. at 72-73.) Similar settlement and arbitration agreements were offered to other chauffeurs. (/d. at 67.) Some signedit and others did not. (/d.) Appellant voluntarily signed the Arbitration Agreement. (/d.) After briefing and a hearing on the matter, the trial court held that this Arbitration Agreement was neither procedurally nor substantively unconscionable, (/d. at 300, 2 AA 301-09.) Appellant and Respondent agreedto arbitrate “any andall claims” arising out of Appellant’s employment. (1 AA 80-83.) The Arbitration Agreement providedfor a neutral arbitrator, reasonable discovery, a written award, and judicial review of the award. (/d.) It also stated that Respondent would pay the arbitrator’s fees, costs, and any expenses that were uniqueto arbitration. (/d.) Further, the Arbitration Agreement expressly stated thatit “shall be governed by and construed and enforced pursuant to the Federal Arbitration Act ... and not individual state laws regarding enforcementofarbitration agreements.” (Ud. at 81.) Finally,it contained a class and representative action waiver, which read: Except as otherwise required under applicable law, (1) EMPLOYEE and COMPANYexpressly intend and agree that class action and representative action proceduresshall not be asserted, nor will they apply, in any arbitration pursuant to this Policy/ Agreement; (2) EMPLOYEE and COMPANY agree that each will not assert class action or representative action claims against the other in arbitration or otherwise; and (3) each of EMPLOYEE and COMPANYshall only submit their own, individual claimsin arbitration and will not seek to represent the interests of any other person. (/d. (emphasis added).) B. Prior to Gentry, Respondent Sought To Compel Arbitration Of Appellant’s Individual Claims In Response To A Purported Class Action Filed By Appellant. On August 4, 2006, Appellant filed a Class Action Complaintin the Superior Court for the County of Los Angeles (Case No. BC356521) | against Respondent alleging various wage and hour claims(“first Complaint”). (1 AA 7-20.) On February 9, 2007, Respondent immediately filed a motion to compel Appellant to arbitrate his claims on an individual basis. (1 AA 32-84.) Thetrial court granted the motion, and concluded that the Arbitration Agreement wasvoluntary and “neither procedurally nor substantively unconscionable.” (1 AA 300, 2 AA 301-09.) Appellant appealed this decision. (2 AA 310-311.) While the appeal was pending, the California Supreme Court decided Gentry, supra, which held that class action waivers in arbitration agreements were unenforceable. (42 Cal. 4th at 450.) C. Gentry Required Respondentto Litigate. In response, the Appellate Court directed thetrial court to “reconsider [its March 13, 2007 Order] in light of Gentry” on May 27, 2008. (2 AA 324-29.) Respondent conceded, and Appellant agreed, that Respondentcould not prevail under the test set forth in Gentry. Thus, Respondent wasforcedto litigate. Meanwhile, on November 21, 2007, Appellantfiled a second complaint pursuant to PAGA (Case No. BC381065) against Respondent, alleging violations of the California Labor Code (PAGA Complaint). (1 Respondent’s Appendix (“RA”) 1-19.) On March 7, 2008, Respondent filed its answer, and raised as an affirmative defense the fact that Appellant’s PAGAclaims were time-barred. (1 RA 20-26.) On August 28, 2008,thetrial court consolidated Appellant’s first Complaint with his PAGA Complaint. On September 15, 2008, Appellant filed a Consolidated First Amended Complaint (“Consolidated FAC’’) including the time-barred PAGAclaim, and alleging eight causes of action: (i) unpaid overtime;(ii) failure to pay wages upon termination; (iil) improper wage statements; (iv) missed rest breaks; (v) missed meal breaks; (vi) improper withholding of wages and non-indemnification of business expenses; (vii) confiscation of gratuities; and (viii) unfair competition law (“UCL”). (2 AA 330-53.) It is the operative Complaint here. Respondent filed its Answer to the Consolidated FAC on September 24, 2008. (2 AA 354-358.) Asto the UCL claim, Appellant sought: (1) disgorgement; (2) restitution; (3) the appointmentof a receiver to manage any disgorged funds; (4) reasonable attorneys’ fees; (5) costs; and (6) other and further relief as the Court deemed equitable and appropriate. Ud. at 352.) Appellant never sought injunctive relief. (/d.) D. In 2011, Gentry Was Impliedly Overruled By The U.S. Supreme Court In Concepcion, and Respondent Immediately RenewedIts Petition To Compel Arbitration. On April 27, 2011, in Concepcion, supra, the U.S. Supreme Court held that class action waivers in arbitration agreements are enforceable under the FAA. Concepcion explicitly overruled Discover Bank, supra, the decision upon which Gentry wasbased, and ruled that arbitration agreements must be enforced “according to their terms.” (Concepcion, 131 S.Ct. at 1745-46, 1753.) In response to Concepcion, on May 16, 2011, Respondent immediately filed a Motion for Renewal of its Prior Motion for an Order Compelling Arbitration, Dismissing Class Claims on the basis that the class and representative action waiverin its Arbitration Agreement wasvalid, and that Appellant should be compelledto arbitrate his individual claim only. 7 AA 1806-1941. On June 13, 2011, the trial court properly granted Respondent’s motion, and expressly rejected Appellant’s argument that Respondent had somehow waivedis right to arbitrate. 7 AA 2062-63, 1 RA 33, 36-37. Appellant appealed thetrial court’s decision, but the Court of Appeal unanimously affirmedthe trial court, rejecting the majority opinion in Brown y. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, review denied (Oct. 19, 2011, Case No. $195850). The court below heldthat thetrial court correctly foundthat the arbitration agreement and class action waivers were effective, that the National Labor Relations Board’s decision in D.R. Horton wasnot binding, and that Respondentdid not waiveits right to arbitrate. This Court granted review on September19, 2011. Iii. DISCUSSION In determining whether a matter is subject to arbitration, courts apply the presumption in favor of arbitration, and should invoke ordinary rules of contract interpretation. (Amalgamated Transit Union Local 1277v. Los Angeles County Metro. Trans. Auth. (2003) 107 Cal.App.4th 673, 684 (Local 1277).) “Doubts as to whether an arbitration clause apples to a particular dispute are to be resolved in favor of sending the parties to arbitration.” (Ud.; Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp. (1983) 460 U.S. 1, 24-25 (given “the federal policy favoring arbitration[,]...any doubts concerning the scopeofarbitrable issues should be resolved in favor ofarbitration,” including “the construction of the contract languageitself or an allegation of waiver, delay, or a like defense to arbitrability.”).) When there is no conflicting extrinsic evidence regarding the interpretation of the arbitration agreement, as is the casehere, whether an arbitration agreement applies to a controversy is a question of law. (Local 1277, 107 Cal.App.4th at 685.) A. Federal Law Mandates Enforcement Of The Arbitration Agreement. Arbitration agreements in the employment context receive no special exceptions from the FAA. (Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 123.) The FAA mandatesthat an arbitration agreement “shall be valid, irrevocable, and enforceable save upon such groundsexist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2 (emphasis added).) This permits agreementsto arbitrate to be invalidated only by “generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue.” (Concepcion, supra, 131 8.Ct. at 1746 (internal citations omitted).) State laws that conflict with the mandates of the FAA are preempted. (Perry v. Thomas (1987) 482 U.S. 483, 493 (FAA preempts the California Labor Code.); Screen Extras Guild v. Superior Court (1990) 51 Cal.3d 1017, 1022-1023 (“Where the issue is one of substantive conflict with federal law, the relative importance to the State of its own law is not material since the framers of the Constitution provided that the federal law must prevail.) (emphasis added).) Indeed, Concepcion held that state laws that are hostile to arbitration agreements are invalid under the FAA, and class and representative action waivers must be enforced “accordingto their terms.” (Concepcion, supra, 131 S.Ct. at 1750, 1752-53.) Concepcion makesit clear that participation in a class or representative action is not a substantive right. The FAA governsthe instant Arbitration Agreement. Not only does the Agreementitself state that it “shall be governed by and construed and enforced pursuant to the Federal Arbitration Act ... and not [by] individual state laws regarding enforcementof arbitration agreements or otherwise” (1 AA 81), but to the extent California law does apply to the Agreement,it is preempted by the FAA. B. Gentry Is No Longer Good Law. Appellant does not argue that the class and representative action waiveris unconscionable under California law. This argument would surely be rejected under Concepcion. (131 S.Ct. at 1746, 1753 (findingthat the Discover Bank rule, defined as “California's rule classifying most collective-arbitration waivers in consumercontracts as unconscionable’, “stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress,” and is therefore “preempted by the FAA”).) Instead, Appellant argues that the waiver is unenforceable because, if compelled to individualarbitration, he and other employees would lack the ability to effectively vindicate their statutoryrights. Appellant argues that this “firmly grounded”principle is consistent with the FAA and federal law,that it is the basis of Gentry, and that therefore,it 1s not overruled by Concepcion. These arguments misrepresent the holding and effect of Gentry. 1. The Arbitration Agreementis consistent with Federallaw. Respondent acknowledges that an arbitration agreement cannot waive substantive rights. (See, e.g., Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth (1985) 473 U.S. 614, 638 (finding that when a party agrees to arbitrate a statutory claim, that party does not waive the substantive rights afforded bythe statute; it only submits to their resolution in an arbitral forum).) But participation in class or representative actionsis not a substantive right, Appellant’s incessant protestations to the contrary notwithstanding. The casesrelied upon by Appellantfor the claim that the class action waiver here improperly forces him to waive substantive rights are irrelevant. No case other than Concepcion evaluated the enforceability of a class action waiverin an arbitration agreement. Moreover, the cases cited by Appellant do not stand for the proposition he indicates; rather, they involve competing federal statutes where the issue presented regarded whether Congress intended certain federal claims to be exempt from the FAA. (See, e.g., Mitsubishi, supra, 473 U.S. at 628 “Having madethe bargain to arbitrate, the party should be held to it unless Congressitself[in the Sherman Antitrust Act] has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.”)(emphasis added); Green Tree Fin. Corp. v. Randolph (2000) 531 U.S. 79, 90-91 (Green Tree) (concerning the waiveroffederal “rights”, the court asked “whether Congress has evinced an intention to preclude waiverofjudicial remedies for the statutory rights at issue.”) (emphasis added); Gilmerv. 10 Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 23-24, 26 (motion to compel arbitration of an ADEA claim granted where the Court stated that “having made the bargain to arbitrate, the party should be held to it unless Congressitself has evinced an intention to preclude a waiverofjudicial remedies for the statutory rights at issue”); Equal Emp ’t Opportunity Comm'n v. Waffle House, Inc. (2002) 534 U.S. 279, 290, 296, fn. | (Americans with Disabilities Act); Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 121, 123 (interpreting FAA and holdingit applies in the employment context).) Regardless of the number of times Appellant says class and representative actions are unwaivable substantive rights (approximately 50 times in the OB), the law does not support this contention. Further, those cases that discuss the “effective vindication”of rights indicate that an arbitration agreement cannot be invalidated on the speculation that the agreement might not be effective because it would “reflect the very sort of ‘suspicion of arbitration’ the Supreme Court has condemnedas “‘far out of step with our current strong endorsementofthe federal statutes favoring this method of resolving disputes.’” (Bookerv. Robert HalfInt’l (D.C. Cir. 2005) 413 F.3d 77, 82 (citing Gilmer, 500 U.S. at 30 (quoting Rodriguez de Quijas v. Shearson/American Express, Inc. (1989) 490 U.S. 477, 481). See also Green Tree, 531 U.S.at 89 (“In considering whether an agreementto arbitrate is unenforceable, we are mindful of the FAA’s purposeto reverse the longstanding judicialhostility to arbitration agreements.” (internal citations omitted)).) “[T]he notionthat arbitration must never prevent a plaintiff from vindicating aclaim is inconsistent with Concepcion.” (Kaltwasser v. AT&T Mobility LLC (N.D. Cal. 2011) 812 F.Supp.2d 1042, 1048.) 1] 2. Justice Baxter’s dissent in Gentry is directly on point. Ultimately, Appellant confuses the means with the ends. “Class actions are provided only as a meansto enforce substantive law.” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 918.) It is a procedural mechanism, not a substantive right. In Discover Bank, Justice Baxter noted in his dissenting opinion that a class action . “must not be confused with the substantive law to be enforced. Evenif the unavailability of class relief makes a plaintiff's pursuit of a particular claim less convenient, such claims may nevertheless be pursued on an individual basis.” (Discover Bank, 36 Cal.4th at 178-79.) He reiterated this position in the Gentry dissent, in which he explained that “[nJo finding is madethat a class remedyis essential, as a practical matter, to vindication of the “unwaivable”statutory right to overtime wages.” (Gentry, supra, 42 Cal.4th at 475 (emphasis in original).) A class action simply is not necessary to protect individual substantive claims. Indeed, more than 60 of Respondent’s former employees and putative class members have opted out of this class and pursued individual wage claims before the California Division of Labor Standards Enforcement and with the American Arbitration Association pursuant to the Arbitration Agreement. (See, e.g., 7 AA 2005-2049.) Clearly, they have not been deterred from vindicating their individual statutory rights. Justice Baxter was prescientin his dissent in Gentry, predicting that both Discover Bank and Gentry would run afoul of the FAA. Ud. at 479.) This Court “may not elevate a mere judicial affinity for class actions as a beneficial device for implementing the wage laws abovethe policy expressed by ... Congress... .” (Ud. at 477.) Justice Baxter strongly disagreed with the notion that “whenever, in an overtime wagecase, the court could otherwise find a class proceeding appropriate, it may do so 12 notwithstanding a free and fair agreement for individual arbitration.” (/d. at 476, fn2.) Asin this case, Justice Baxter noted that there was “no indication in Gentry’s own claim is too small to warrant individual legal action,” id. at 479, fn5, and that “even if class relief were a significantly more effective way for... employees, as a group, to establish their... claims ... this does not justify invalidating [a] voluntary agreementto resolve ... claims by individual arbitration.” (/d. at 478-79 (emphasis in original).) Here, unless Appellant’s agreementto resolve his claims by individual arbitration “constitutes a de facto waiver of his own statutory rights, he should not be allowedto act, contrary to his agreement, as a representative plaintiff.” (/d.) The “strong public policy that arbitration agreements are to be enforced according to their terms should prevail.” Ud.) 3. The Gentry test derives its meaning from the fact that an agreement to arbitrateis at issue. Contrary to Appellant’s claim, Gentry is much broaderthan the basic premise that an arbitration agreement cannot waive substantiverights. (OB, p. 8.) Gentry sets forth a specific, unlawful test to determine whether the means of enforcing substantive rights is “effective” enough to vindicate those substantive rights. (42 Cal.4th at 463.) Gentry further impermissibly holds that if after consideration of these factors the court concludesthat “a class arbitrationis likely to be a significantly more effective practical meansfor vindicating the rights of the affected employees than individuallitigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws for the employees alleged to be affected by the employer’s violations, it must invalidate the class arbitration waiver.” (/d.) Under the FAA,a court is not entitled to make such a determination. The substantive rights involved here are under wage and hour lawsin the California Labor 13 Code. No such rights have been waived. That a class or representative action may be “moreeffective”is irrelevant under the FAA. Thus, Gentry incorrectly holds that despite a valid arbitration agreement betweenparties, the trial court maycertify a class in an overtime wagecase,“in any circumstance whereit could otherwise do so.” (/d. at 476 (Dissent, Justice Baxter).) Gentry’s test is aimed directlyat the efficacy of arbitration agreements, andit is thus at odds with the primary objective of the FAA, whichis to enforce arbitration agreements according to their terms. As described in Concepcion, it is not the intent of the FAA to “preservestate- law rules that stand as an obstacle” to enforcing arbitration agreements accordingto their terms. (131 S.Ct. at p. 1748.) “States cannot require a procedurethat is inconsistent with the FAA,even if it is desirable for unrelated reasons.” (/d. at 1753.) Moreover, “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” (/d. at 1747 (citing Preston v. Ferrer (2008) 552 U.S. 346, 353).) Thetest set forth in Gentry is thus prohibited by the FAA. 4. Thereis no principled distinction between Gentry and Discover Bank. Appellant also attempts to distinguish Gentry from Concepcion on the groundsthatthelatter rested on the doctrine of unconscionability in consumercontracts, while Gentry concerned “important public policies” stemming from employees’ statutory rights. (OB, p. 5.) Appellant’s attempt to distinguish Concepcion from Gentry to avoid enforcementof the Arbitration Agreement between theparties is flawed. Concepcion applies to Gentry with equalforce as it does to Discover Bank. An “important public policy” is simply not sufficient to trump the FAA. 14 Concepcion overruled Discover Bank, which was the foundation of Gentry. In Gentry, the Court deferred rendering an opinion until after it issued Discover Bank. (Gentry, 42 Cal.4th at 453-455, 462.) Further, the Gentry Court “granted review to clarify our holding in Discover Bank” and repeatedly cites Discover Bank throughout the opinion. (/d. at 452.) Despite framing the Gentry opinion in termsof“statutoryrights”, as compared to Discover Bank’s “unconscionability” standard, Gentry echoes Discover Bank in its analysis. Each decision impermissibly considered the modestsize of the individual’s potential recovery, unequal bargaining powerin the contractualrelationship, and “other real world obstacles”to vindication of the individuals’ rights. (Compare Discover Bank, 36 Cal.4th at 162-163 with Gentry, 42 Cal.4th at 463.) Concepcionrejected these issues as barriers to the enforcementof class action waivers in arbitration agreements under the FAA. Thecase held that the relative size of the recovery does not trump public policy favoring arbitration, and that even with differential bargaining power between parties, where there is the potential for retaliation against class members,arbitration agreements have been enforced. (Concepcion, 131 S. Ct. at 1753, 1749 n. 5 (“Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] nevertheless held... that agreements to arbitrate in that context are enforceable.”...‘‘allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees.’’).) In addition, the fact that class members maybeill informed or maynot be able to vindicate their rights appliesto all class actions, yet Concepcion renderedthe class action waiverin that case enforceable. Further, like Discover Bank, the Court in Gentry rejected the notion that class actions are incompatible with arbitration. (42 Cal.4th at 465.) Concepcion directly addressed and overturned this view, finding that “[t]he 15 overarching purpose of the FAA .. . is to ensure the enforcement of arbitration agreements according to their termsso asto facilitate streamlined proceedings. Requiring the availability of classwide arbitration interferes with fundamentalattributes of arbitration and thus creates a scheme inconsistent with the FAA.” (131 S.Ct. at 1748.) Accordingly, Appellant’s attempt to distinguish Gentry from Discover Bank fails. Subsequent to Concepcion wasissued, numerouscourts have held that Gentry hasbeen implicitly overruled. (See, e.g., Valle v. Lowe’s HIW, Inc. (N.D.Cal. Aug. 22, 2011) No.11-1489 SC, 2011 WL 3667441, *1-3 (“[L]ike Discover Bank, Gentry provides a rule of enforceability that applies only to arbitration provisions. Both opinions rely on the same California precedent and logic. Because of these similarities, many courts have found that Concepcion overrules or abrogates Gentry.”); Murphy v. DirecTV, Inc. (C.D.Cal. Aug. 2, 2011) No. 2:07-cv-06465, 2011 WL 3319574, *4-5 (“[I]t is clear to the Court that Concepcion overrules Gentry,”); Lewis v. UBS Fin. Servs. Inc. (N.D.Cal. 2011) 818 F.Supp.2d 1161, 1167 (“[L]ike Discover Bank, Gentry advancesa rule of enforcement that applies specifically to arbitration provisions, as opposed to a general rule of contract interpretation. As such, Concepcion effectively overrules Gentry.”); Morse v. Servicemaster Global Holdings Inc. (N.D.Cal. July 27, 2011) No. C10-00628, 2011 WL 3203919, *3-4, n.1.(defendant’s motion to compel arbitration granted because “Concepcionrejected reasoning and precedent behind Gentry.”); Quevedo v. Macy’s, Inc. (C.D.Cal. 2011) 798 F.Supp.2d 1122, 1127, 1140 (class action waiver was “‘valid and enforceable” because Concepcion “undercut the reasoning” ofDiscover Bank and Gentry,); See also Brown, supra, 197 Cal-App.4th at 505-09,J. Kriegler dissenting (viability of Gentry questioned).) Indeed, the majority of judges who have considered the issue have found that Gentry has been overruled. The only case cited by Appellant for the proposition that 16 the Gentry was not overruled by Concepcion is Franco v. Arakelian Enterprises, Inc., (2012) 211 Cal.App.4th 314. (OB, p. 18) That case is no longer citable because review this Court granted review of it on February 13, 2013. Appellant’s citations to other jurisdictions are irrelevant as they do not opine on the specific test set forth in Gentry. Further, the courts in each of the cases cited by Appellant to suggest that Concepcion does not overrule Gentry because the Gentry test is not “malleable” or “toothless” (OB, p. 20) expressly declined to evaluate whether Gentry was overruled by Concepcion. (See Kinecta v. Alternative Fin. Solutions, Inc. v. Superior Court (2012) 205 Cal.App.4th 506, 516 (“A question exists about whether Gentry survived the overruling of Discover Bank in Concepcion, butit is not one we needto decide.”); Brown, supra, 197 Cal.App.4th at 497 (“Accordingly, we do not have to determine whether, under [Concepcion], the rule in [Gentry] concerning the invalidity of class action waiversin employee-employer contract arbitration clauses is preempted by the FAA); see also Arguelles-Romero v. Superior Court. (2010) 184 Cal.App.4th 825, 839-43 (decided before Concepcion and specifically regarded the application of the now-overruled Discover Bank unconscionability analysis to a class action waiver).) Theclass action waiver in the Arbitration Agreementis enforceable because no groundsexist at law or in equity for its revocation. It cannot be invalidated by the defenses raised by Appellant because those arguments apply only to arbitration and derive their meaning from the fact that an agreementto arbitrateis at issue. C. The Waiver of a PAGA Representative Action Is Enforceable. Under Concepcion, the FAA applies to waivers of representative actions under PAGA noless than to waiversofclass actions. There is 17 simply no principled distinction between a PAGArepresentative action and a class action under California Code of Civil Procedure § 382. Appellant argues that by barring representative actions in any forum, the Arbitration Agreementeliminates an employee’s supposed unwaivable statutory entitlement to bring a claim under PAGA. This assertion, however, is entirely unsupported by the facts or the law. 1. PAGAis unconstitutional. As a threshold matter, PAGA is unconstitutional. The California Constitution expressly provides for the separation of government powers. (Cal. Const. of 1849,art. III, §1, now art. Ill, §3.) When state legislature crosses the line by significantly interfering with the judicial function, courts do not hesitate to declare the statute unconstitutional. (See Jn re Application ofLavine (1935) 2 Cal.2d 324, 328; Merco Constr. Eng’rs, Inc. v. Mun. Ct. (1984) 21 Cal. 3d 724, 731.) Here, PAGAis unconstitutional becauseit usurps the judiciary’s power to ensure the neutrality of counsel whoprosecute public actions because it authorizes such representation without government oversight. (County ofSanta Clara v. Superior Court (2010) 50 Cal.4th 35, 57 (‘“[I]t is a bedrock principle that a government attorney prosecuting a public action on behalf of the government must not be motivated solely by a desire to win a case, but instead owesa duty to the public to ensurethat justice will be done.”); Clancy v. Superior Court (1985) 39 Cal.3d 740, 743, 750 (Attorneys acting on behalf of the public or the governmentneedto be neutral and should not havea financial stake in the outcomeofthe action becauseit is “antithetical to the standard of neutrality that an attorney representing the government must meet when prosecuting a public [interest].”)) PAGAactions are prosecuted on behalf of the State. (Cal. Lab. Code §2698; Arias v. Superior Court (2009) 46 Cal.4th 969, 986 (PAGAenacted because of inadequate staffing levels for labor law enforcement government agencies; thus, under PAGA,aggrieved 18 employees are deputized to enforce the labor code and collect penalties for the government.)) PAGAbyits very terms empowersprivate attorneys to litigate public actions in a mannerthat directly violates the applicable ethical standard enunciated by the California Supreme Court in Clancy and Santa Clara, Neutral, government attorneys do not “retain control over critical discretionary decisions,” as required by that standard. In fact, they retain no control whatsoever over any aspect of PAGAlitigation. Thus, the state legislature has authorized private attorneys with a financial stake in the litigation to represent the public in PAGAactions without requiring any government control or supervision overthe litigation. By doing so,it has imposed a lesser standard for attorney conduct than the Supreme Court imposed in Clancy and Santa Clara. Consequently, PAGA impermissibly intrudes upon the judiciary’s inherent authority over attorney ethical standards and conductin violation of the doctrine of separation of powers. Accordingly, PAGAis unconstitutional. 2. Appellant’sPAGAclaim is time-barred. In any event, Appellant’s ability to assert a PAGA claim on behalf of himself, or anyoneelse, is barred by the statute of limitations. The statute of limitations for a PAGAclaim is one-year. (Thomas v. Home Depot USA Inc. (N.D. Cal. 2007) 527 F.Supp.2d 1003, 1007 (holding PAGAstatute of limitations is one year, and rejecting claim that relevant limitations period is that of the underlying claims).) Respondent has consistently raised as an affirmative defense the fact that Appellant’s PAGAclaimis time-barred. (1 RA 20-21 and 27-29.) Here, Appellant’s employment ended on August 2, 2005, and he did not file a PAGA claim until November 21, 2007. (1 AA 66-69, 1 RA I- 19.) Further, any attempt to preserve the PAGAclaim byarguingthat it “relates back”to the first Complaint is unjustified for two reasons. First, the PAGA Complaint was brought in a unique action, separate and apart 19 from the first Complaint, so the relation back doctrine does not apply. Second, evenifthe rule of relation back applied here, the rule does not operate to assign the performance of a condition precedent(e.g., the exhaustion of administrative remedies by sending notice to the LWDA and the employer) to a date prior to its actual occurrence. (Wilson v. Department ofPublic Works, 271 Cal.App.2d 665, 669 (1969) (“A subsequent pleading whichsets out the subsequent performanceof a statutory condition precedentto suit cannot relate back to the time of the filing of the original complaint and therebytoll the running ofthe period of limitation, since the rule of relation back does not operate to assign the performance of a condition precedentto a date priorto its actual occurrence.’’).) Appellant provided written notice by certified mail to the LWDAand the employer; required under the PAGA,on August 4, 2006, over a year after Appellant’s termination. Because Appellant did not even serve the required notice until after the statute of limitations had passed,the proposed PAGAclaim doesnotrelate back to the date of filing of the first Complaint, and it is consequently time barred. (See, e.g., Morenov. Autozone, Inc., (N.D.Cal. June 5, 2007), No. C05-04432 MJJ, 2007 WL 1650942, *4.) Consequently, Appellant’s pursuit of statutory remedies under PAGAin any eventis futile. 3. A PAGAclaim maybe brought as an individual action. Appellant’s argumentthat bringing a representative action under PAGAis a “substantive right” is falsely premised upon the assertion that a PAGAclaim cannot be brought on behalf of an aggrieved individual. Appellant, however, can pursue an individual claim for civil penalties under PAGAin arbitration. (Quevedo, supra, 798 F.Supp.2d at 1141.) As the District Court in Quevedo explained: 20 “fRjequiring arbitration agreements to allow for representative PAGA claims on behalf of other employees would be inconsistent with the FAA. A claim brought on behalf of others would, like class claims, make for a slower, morecostly process. In addition, representative PAGA claims ‘increase[] risks to defendants' by aggregating the claims of many employees. See [Concepcion, 131 S.Ct.] at 1752. Defendants would run the risk that an erroneous decision on a PAGA claim on behalf of many employees would ‘go uncorrected’ given the ‘absence of multilayered review.’ See id. Just as ‘{a]rbitration is poorly suited to the higher stakes of class litigation,' it is also poorly suited to the higher stakes of a collective PAGA action. See id. The California Court of Appeal's decision in Franco showsonly that a state might reasonably wish to require arbitration agreements to allow for collective PAGA actions. See Franco [v. Athens Disposal Co., 171 Cal.App.4th 1277, 90 Cal.Rptr.3d 539 (2009)]. AT&T v. Concepcion makes clear, however, that the state cannot impose such a requirement because it would be inconsistent with the FAA. See Concepcion, 131 S.Ct. at ~ 1753.” (Quevedo, 789 F.Supp.2d at 1142.) The fact that Appellant mustsplit any recovered penalties with the State does not change this analysis. The rationale of Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 119, 1123, is unpersuasive. Reyes incorrectly states that PAGA does not enable a single agerieved employeetolitigate his claims alone, but requires an aggrieved employee to sue on behalf of himself and other employees. (/d. at 1123- 1124.) PAGA, however, does not “require” anything. It simply says that penalties under relevant Labor Code provisions “may . . . be recovered by an aggrieved employee on behalf of himself or herself and other current or former employees.” (Cal. Labor Code § 2699(a) (emphasis added).) The legislative history of PAGA explains that under PAGA, “private suits for Labor Code violations could be brought only by an employee or former employee ofthe alleged violator against whom the alleged violation was committed. This action could also include fellow employees also harmed 21 by the alleged violation.” (Assembly Committee on Judiciary, Labor Code Private Attorneys General Act of 2004, Date of Hearing June 26, 2003. available online at: http://www.leginfo.ca.gov/pub/03-04/bill/sen/sb_0751- 0800/sb_796_cfa_200306261 10301_asm_comm.html.') Further, even the title of Labor Codesection 2699 reads “Actions brought by an aggrieved employee or on behalf of self or other current or former employees.” (West's Ann. Cal. Labor Code § 2699 (emphasis added). See also Arias, supra, 46 Cal.4th at 981, fn5 (“Actions under the Labor Code Private Attorneys General Act of 2004 may be broughtas class actions.”) (emphasis added).) PAGAdoesnot have a numerosity requirement, and by “deputizing” private citizens, PAGAhasleft the discretion of how to bring an action with the private citizen. (Arias, supra, 46 Cal.4th at 984-988.) Indeed, Appellant acknowledges the fact that an individual can seek penalties under PAGAwithout notice to other employees. (OB, p. 23) It follows that an aggrievedindividual can seek civil penalties under PAGA for himself or herself, like a class action, regardless of the existence of other current or former employees. 4. A PAGArepresentative action is merely a procedural mechanism nota substantiveright. Appellant’s argument that PAGAis an unwaivable, substantive, public right is without support. This Court hasheld that the “Labor Code Private Attorney General Act of 2004 does not create property or any other substantive rights.” (Amalgamated Transit Union Local 1756, supra, 46 Cal.4th at 1003 (emphasis added).) It is not the same as a claim for overtime, meal breaks, or minimum wage, and “is simply a procedural ' “(JJudicial notice of legislative history materials generally available from published sources” is “unnecessary.” (Sharon v. Superior Court (2003) 31 Cal.4th 417, 440 fn.18.) 22 statute.” (/d. at 1003 (emphasis added); Amaral v. Cintas Corp. 2 (2008) 163 Cal.App.4th 1157, 1199 (“‘PAGA did not impose new ordifferent liabilities on defendants based on their past conduct... . It merely changed the procedural rules governing who has authority to sue for certain penalties.”).) A PAGArepresentative action and a class action are nearly identical in their nature. They are both initiated for the benefit of a specific group of aggrieved individuals, and both provide for the possibility of an incentive awardfor the representative and his or her counsel. Concepcion held that one can permissibly waive such a procedural right. Further, the waiver clause upheld in Concepcion specifically included “any purported class and representative proceeding”. (Concepcion, 131 S.Ct. at 1744, n. 2.) It madenodistinction between representative actions and class actions. The language of Appellant’s Arbitration Agreementis virtually identical to the clause upheld in Concepcion. (1 AA 80-81) (“(2) EMPLOYEEand COMPANYagreethat each will not assert class action or representative action claims against the otherin arbitration or otherwise; and (3) each of EMPLOYEEand COMPANYshall only submit their own, individual claims in arbitration and will not seek to represent the interests of any other person.”).) Moreover, the clause in Discover Bank, which was expressly overruled by Concepcion, precluded both sides from participating in classwide arbitration, consolidating claims, or arbitrating claims “as a representative or memberofa class or in a private attorney general capacity.” (Discover Bank, 36 Cal.4th at 153-54.) Thus, the representative waiver here must be enforced. PAGA,byitself, does not confer any right on Plaintiff. There is no such thing as a “violation of PAGA”. The civil penalties available under PAGAare for violations of other substantive sections of the Labor Code, and are discretionary. (Cal. Labor Code § 2699(e)(2).) Rather, the 23 “substantive rights” conferred on Appellant are found in the underlying Labor Code provisions at issue. PAGAis simply one of several ways by which an employee may seek to enforce that substantive right. Indeed, by its own terms, PAGAis “an alternative” to the prosecution of a Labor Code violation by “the Labor and Workforce Development Agency (““LWDA”), or any of its departments, divisions, commissions, boards, agencies or employees.” (Cal. Labor Code § 2699(a).) Thus, contrary to Appellant’s suggestion, employees have no entitlement to bring a PAGArepresentative action. (See OB, p. 21) Notably, Appellant fails to acknowledge that the alleged “empowermentofan individual to recover penalties on behalf of the state, himself, and other employees” (OB, p. 23) must be with “the understanding that labor law enforcement agencies were to retain primacy over private enforcementefforts.” (Arias, supra, 46 Cal.4th at 980.) Indeed, an aggrieved employee must provide written notice to the LWDA before he or she can file a PAGArepresentative action, and thereafter he or she can only file a representative action if the LWDAdeclinesto investigate or if the LWDAfails to respondto the notice in a timely manner, Cal. Labor Code § 2699.3, and if no other employeefiles first. In addition, arbitration does not limit an employee’s individual recovery of penalties under PAGA. Forthis reason, the Arbitration Agreement doesnot conflict with the principles advanced by this Court in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. Ath 83, because Armendariz held only that “an arbitration agreement may not limit statutorily imposed remedies.” (/d. at 103-04.) Appellant’s Arbitration Agreementdoesnot limit the remedies for any of the alleged violations. Further, the notion that a PAGAaction cannot be contravened by a private arbitration agreement becauseit was established for a so-called “public reason” is contrary to well-established law. (See, e.g., Southland 24 Corp. v. Keating (1984) 465 U.S. 1, 10-11 (California Franchise law preempted by the FAA); Perry v. Thomas (1987) 482 U.S. 483, 490-491 (California Labor Code Section 229 preempted by the FAA); Preston v. Ferrer (2008) 552 U.S. 346, 359 (California Talent Agencies Act preempted by the FAA).) “Whenstate law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” (Concepcion, 131 S.Ct. at 1747 (holding that the waiverof a class action, a statutory procedure that presumably benefits the public, is enforceable); See also Kilgore v. Keybank Nat’l Assn. (9th Cir. 2012) 673 F.3d 947, 962 (“The very nature of federal preemption requires that state law bend to conflicting federal law—no matter the purposeof the state law. It is not possible for a state legislature to avoid preemption simply becauseit intends to do so.”).) Arguably, anything a state legislature doesis for a “public reason.” Such is not enough to avoid scrutiny under the FAA. | Appellant’s citations to Armendariz and Gentry onthis point are inapposite. The FEHArights at issue in Armendariz and the overtime rights at issue in Gentry are substantive rights in and of themselves, regardless of the fact that they may have been established for a “public reason”. PAGA,onthe other hand,is simply a tool to enforce substantive law. Asset forth above, PAGA does not contain any substantive right, and there is nothing in the language of PAGAthat precludes a waiver of representative actions in employment agreements. Is Appellant arguing that a private citizen is required to bring a PAGAaction on behalf of others and the State? It is unreasonable to hold that individuals cannot waive a claim that they do not have right to bring, particularly when they have several other meansto achieve the same remedies. Regardless of | whethera state statute “benefits the public,”it will be preempted by the FAA if it contravenesthe prevailing law that arbitration agreements are to 25 be enforced according to their terms. (Concepcion, 131 S.Ct. at 1747. See also Grabowski v. C.H. Robinson Co. (S.D.Cal. 2011) 817 F.Supp.2d 1159, 1180 (“[Plaintiff's] PAGA claim is arbitrable, and that the arbitration agreement’s provision baring him from bringing that claim on behalf of other employeesis enforceable.”); Valle, supra, 2011 WL 3667441 at *6 (“[T]o the extent that Plaintiffs argue that no PAGAclaim is arbitrable, the court rejects this argument as unsupported by the law. Plaintiffs’ PAGA claim is a state-law claim, and states may not exempt claims from the FAA.”); Nelson v. AT&T Mobility LLC (N.D. Cal. Aug. 18, 2011) No. C10—4802, 2011 WL 3651153, *4 (“Concepcion preempts California law holding PAGA claim inarbitrable.”); Quevedo, 798 F.Supp.2d at 1141 (motion to compel arbitration was granted because “Quevado’s PAGA claim is plainly arbitrable.”).) D. The Class and Representative Action Waiver Does Not Infringe On Employee Rights Under Federal Labor Laws. Appellant’s reliance on the National Labor Relations Board (“NLRB”or “Board”) controversial and highly politicized decision in D.R. Horton, Inc. (Jan. 6, 2012) 357 NLRB 184, 2012 WL 36274,is misguided. Not only wasthearbitration agreement in D.R. Horton easilydistinguished from Appellant’s, but the decision should be given no deference because the NLRB exceededits authority by interpreting the FAA and by ignoring the clear and unambiguousholdings of the U.S. Supreme Court in Concepcion and CompuCredit, supra, 132 S.Ct. at 668. D.R. Horton considered whether an employee precluded from exercising section 7 rights in allforums violated the NLRA. (D.R. Horton, 357 NLRB 184.) Ultimately, the NLRB held that the FAA mustyield to the NLRA becauseclass claims are protected “concerted activity.” The 26 arbitration agreementat issue in D.R. Horton, however, was more restrictive than Appellant’s, and explicitly prevented any concerted action. The arbitration agreement in D.R. Horton was mandatory, precluded the employee from seeking class action relief in civil court, prohibited the arbitrator from consolidating the employees claims with the claims of other employees pendingin arbitration, precluded the arbitrator from presiding over a collective action; and precluded the arbitrator from awardingrelief to a group of employees. (D.R. Horton, Inc., 2012 WL 36274 at *1.) Asa result of the language in the D.R. Horton arbitration agreement, the employee wasbarred from filing a class action arbitration under the Fair Labor Standards Act, which prompted him to file an unfair labor practice charge against his employer with the NLRB. Ud. at *2.) The NLRB held that the class action waiver in the arbitration agreementviolated the employee’s right to concerted activity under Section 7 because it precluded the employee from pursuing a collective or class action claimsin all forums. (Ud. *5.) In stark contrast, Appellant voluntarily signed the Arbitration Agreementas part of a settlement with Respondent, during which he received $1,350.00, and which other employees refused to sign without consequence. (1 AA 66-69, 71-73, 75-83; see Webster v. Perales (N.D. Tex. Feb. 1, 2008), No. 3:07-CV-00919-M, 2008 WL 282305 *4 (holding there could be no violation of Section 7 rights because plaintiffs’ consent to arbitration was “voluntary and without duress, pressure or coercion.”).) Further, the instant Arbitration Agreement does not prohibit Appellant from filing joint claimsin arbitration (60 employees have doneso), does not preclude the arbitrator from consolidating Appellant’s claims with claims of other employees, and does not prohibit the arbitrator from awarding relief to a group of employees. (1 AA 75-83.) Respondent’s Arbitration Agreementtherefore, does not hinder Appellant from engaging in 27 “concerted activity” in an arbitrable forum. Accordingly, the holding of D.R. Horton is distinguished and not applicable here. In any event, the Board exceeded its authority in D.R. Horton when it interpreted the FAA,and this Court therefore owes no deferenceto its decision. (Hoffman Plastic Compounds Inc. v. NLRB (2002) 535 U.S. 137, 144 (“...we have never deferred to the [b]oard ’s remedial preferences where such preferencespotentially trench upon federal statutes and policies unrelated to the NLRA”); Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1133 (California appellate courts are not bound by federal administrative interpretations); Owen v. Bristol Care, Inc. (8th Cir. 2013) 702 F.3d 1050, 1054 (“[A]lthough no court of appeals has addressed D.R. Horton, nearly all of the district courts to consider the decision have declinedto followit.’”’).) Further, the decision’s persuasive value is also limited becauseit “reflects a novel interpretation of section 7 and the FAA”and “only two Board memberssubscribedto it, and the subscribing members therefore lacked the benefit of dialogue witha full board or dissenting colleagues.” (Nelsen, 207 Cal.App.4th at 1133-34; See Noel Canning v. NLRB, _ F.3d ___ (D.C. Cir. Jan. 25, 2013), 2013 WL 276024 at *16 (finding the current appointments to the Board invalid and stating that “Because the Board lacked a quorum of three members whenit issued its decision in this case . . . its decision must be vacated.”).) Atthis time, however, this Court is bound by the direct, controlling authorities which hold that arbitration agreements, including class and representative action waivers contained therein, must be enforced accordingto their terms unless the FAA’s mandate has been “overridden by a contrary congressional command”. (CompuCredit, supra, 123 8.Ct. at 669; Concepcion, 131 S.Ct. at 1745; Gilmer, supra, 500 U.S. at 26 (“[H]aving madethe bargainto arbitrate, the party shouldbe heldto it unless Congress itself has evinced an intention to preclude waiver ofjudicial remedies for 28 the statutory right at issue.”).) Appellant is unable to cite any evidence of any Congressionalintent to limit arbitration in deference to any policy inherent in the NLRA. The FAA must therefore override any alleged statutory right to collective litigation or arbitration as suggested in D.R. Horton, (See Nelsen, 207 Cal.App.4th at 1133-34 (not boundto follow Horton because the policy favoring arbitration in the FAA mustnot yield to the NLRA); Morvant v. P.F. Chang’s China Bistro, Inc. (N.D.Cal. 2012) 870 F.Supp.2d 831, 845 (rejecting D.R. Horton because it failed to “overcomethe direct controlling authority [in Concepcion and CompuCredit] holding arbitration agreements, including class action waivers contained therein, must be enforced according to their terms”’).) “[T]he Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that is may wholly ignore other and equally important congressional objectives.” (Hoffman Plastic Compounds, supra, 535 U.S. at 143-44.) The NLRB’s “remedial preferences” are not to be deferred to “where such preferencespotentially trench upon federal statutes and policies unrelated to the NLRA.” (/d.) Despite Appellant’s allegation to the contrary, there is no “unambiguous” Section 7 right to pursue class or collective action. (OB,p. 38.) “[T]o find any employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the authority of other employees, and not only by and on behalf of the employee himself.” (Myers Indus. & Prill (1984) 268 NLRB 493 (Myers I), remanded, 755 F.2d 941 (D.C. 1985), reaffirmed, 281 NLRB 882 (1986) (Myers ID), affd. 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).) Class and representative actionsare thus the antithesis of “concerted activity” within the meaning of the NLRA becausein a class or representative action the employee can simplyfile suit on the employee’s own behalf and on behalf ofall other 29 putative class members, regardless whether the individual’s fellow employees wantto file suit. Here, Respondent could not have violated Appellant’s Section 7 rights by requiring arbitration on an individual basis. First, Appellant had no Section 7 rights to exercise at the time he filed his lawsuit because he was no longer an employee of Respondent. (See Grabowski, supra, 817 FSupp.2d at 1169 (filing of a class action complaint by an individual who was no longer an employee wasnot “concerted activity” under the NLRA).) Second, there is no evidence that Appellant at any relevant time or in any mannerjoined forces with employees, who unlike him, werestill employed with Respondentat the time he consulted with counsel andfiledsuit. Further, there is no evidence that Appellant had the authority of Respondent’s employeesto pursue the putative class action. On the contrary, about one-half of the putative class members expressly disavowed Appellant’s claims upon learning of the case. (See, e.g., 7 AA 2005-2041.) Thereis also no evidencethat by his activities, Appellant intended to enlist the support of Respondent’s employees in a common endeavor. In fact, in the course ofthe litigation, Appellant admitted under oath that when he met with his attorneysforthefirst time, he soughtto file a religious discrimination lawsuit on his own behalf. (7 AA 2005, 2042-2048.) Moreover, it should be noted that Section 7 of the NLRA encompasses not just the right to engage in Section 7 activity, but also includes the right to refrain from suchactivity. (29 U.S.C. § 157.) Thus, Appellant’s decision to waive his right to engage in class, collective, or representative action by voluntarily signing the class action waiver and receiving consideration for that action should be equally protected by the NLRA. Accordingly, there is no remote possibility of any “concerted activity” at issue, and the enforcementofthe arbitration agreementis lawful. E. Respondent Did Not WaiveIts Right To Arbitrate. Appellant continues to make this facetious “waiver” argumentthat was rejected by the appellate court and trial court based on substantial evidence in the Record. 1. The trial court’s ruling based on substantial evidence in the Recordis entitled to deference. Waiveris highly disfavored. “[California] law, like the FAA, reflects a strong public policy favoring arbitration agreements.” (Saint Agnes Med. Ctr. v. PacifiCare of Cal. (2003) 31 Cal.4th 1187, 1195 (“Saint Agnes’’).) “[W]aivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (/d. (emphasis added).) “[AJny doubts...should be resolved in favor of arbitration.” (Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp. (1983) 460 U.S. 1, 24.) Whethera party has waived arbitration is an issue of fact, which will not be disturbed by the appellate court if substantial evidence supportsthetrial court’s decision. (Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 983.) The trial court below held that there was no waiver. Waivers only occur if a party: (1) previously took steps inconsistent with an intent to arbitrate, (2) unreasonably delayed in seeking arbitration, or (3) acted in bad faith or with willful misconduct. (Saint Agnes, 31 Cal.4th at 1196.) Mere delay, without someresultant prejudiceto a party, cannot carry the day. (Christensen v. Dewer Dev. (1983) 33 Cal. 3d 778, 782.) Noneofthese factors are present here, and there is no cognizable “prejudice.” 2. Respondentacted consistently with its intent to arbitrate. A party doesnotact inconsistently with the right to arbitrate by failing to seek to enforce an arbitration agreementthat would be 3] unenforceable underprior existing law. (Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986) 791 F.2d 691, 697 (holding that defendant did not waive arbitration by seeking to compelarbitration three yearsafterlitigating the case because defendant’s motion was prompted by a changein the law that gaveit the right, for the first time, to obtain the relief requested); see also Letizia v. Prudential Bache Secs., Inc. (9th Cir. 1986) 802 F.2d 1185, 1187.) Here, Respondent sought individual arbitration just weeksafter Appellant filed the lawsuit. (1 AA 32-84.) When Appellant refused to arbitrate, Respondent filedits first motion to compel arbitration andthe trial court granted it. (1 AA 32-84, 300; 2 AA 301-09.) Appellant appealed. During the appeal, Gentry held that class action waivers were invalid if a plaintiff met “the Gentry test.” Both Appellant and Respondent agree that Appellant would have metthis test. (OB, p. 4, 8; 7 AA 1961,1963-82; Appellant’s Opening Brief to the Court of Appeal, pp. 18-20.) It is undisputed, therefore, that individual arbitration would not have been ordered by the trial court. Thus, Respondent wasforcedtolitigate. Thereafter, Concepcion overruled Discover Bank, and impliedly overruled Gentry. Concepcion thus provided Respondent with a renewed opportunity to compelarbitration. Accordingly, three weekslater, Respondentfiledits second motion to compelarbitration which the trial court granted. (7 AA 1806-1941, 2062-63.) Appellant appealed again. In response,the Appellate Court below summarily rejected Appellant’s waiver argument, recognizedthetrial court’s factual finding, and stated that “CLS acted consistently with its rightto arbitrate.” There is no evidence that Respondent ever delayed in seeking to compel arbitration. The only arguable “delay” was caused when Gentry paralyzed Respondent’s ability to compel individualarbitration. Appellant essentially argues that Respondent’s admission that it would not survive the 32 Gentrytest, without a court order, is not justification for abandoningits motion to compelarbitration. Appellant agrees that the trial court had been overruled by Gentry. (OB,p. 4, 8; 7 AA 1961, 1963-82; Appellant’s Opening Brief to the Court of Appeal, pp. 18-20.) At least a dozen cases, including California appellate cases, recognize that defendants did not waive arbitration despite monthsor years oflitigation if defendants reasonably believed the court would not have enforced the class action waivers in their arbitration agreements after Gentry, and prior to Concepcion. (See, €.g., Philips v. Sprint PCS (2012) 209 Cal.App.4th 758, 773 (compelling individual arbitration after Concepcion and finding that “‘waiver should not be found on the basis of a party’s failure to undertake a futile act”, even after several years oflitigation and certification of a class); Quevedo, supra, 798 F.Supp.2d at 1126, 1131 (holding that the defendant did not waivethe right to arbitrate because defendant reasonably believed that it had no right to compel individualarbitration post-Gentry and pre-Concepcion, even after two years oflitigation, a motion to dismiss, and a motion for and in opposition ofclass certification was filed); Grabowski, supra, 817 F.Supp.2d at 1166-67 (finding that defendant did not waiveits right to arbitrate because prior to Concepcion, defendant reasonably believed the court would not have compelled individual arbitration); Plows v. Rockwell Collins, Inc. (C.D.Cal. 2011) 812 F.Supp.2d 1063, 1068 (holding that defendantdid not waiveits right to arbitrate because “Defendant reasonably could have believed that [Concepcion] altered the legal landscape surrounding the arbitration clause in plaintiff's contract and that, prior to [Concepcion],the arbitration clause in plaintiff's employment agreement would have been deemed unenforceable.”); Lima v. Gateway, Inc. (C.D.Cal. Aug. 7, 2012) No. SACV 09-01366, 2012 WL 3594341 at *3-4 (No waiver because Defendant“had no right to compel arbitration prior to April 27, 2011 — the date that Concepcion was decide because California 33 lawpreviously held that class-action waiver provisions...are unconscionable.”); Estrella v. Freedom Financial Network LLC (N.D.Cal. Jan. 24, 2012) No. CV 09-03156 SI, 2012 WL 214856 at *3 (finding that when the Supreme Court abrogated the Discover Bank rule in Conception, it resuscitated the class action waiversin the plaintiffs’ arbitration agreements.).) The cases which Appellant claims show it was possible to compel individual arbitration after Gentry and before Concepcion are inapposite. In Walnut Producers ofCal. v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 649-50, the court failed to discuss the Gentry test, and did not deal with a motion to compelarbitration, the seminalissue in this case. In Borrero v. Travelers Indemnity Co. (E.D.Cal. Oct. 15, 2010) No. CIV S—10-322 KJM, 2010 WL 4054114 at *2, the Court determined that the plaintiffdid meet the Gentry test and ordered the case to arbitration. This is clearly distinguishable as both parties here agree that Appellant would have met the Gentry test, and would have been forced into the kind of class wide arbitration disfavored in Concepcion. The purported “wait and see” approach cited by Appellantthat allegedly improperly incentivizes delay is not applicable to Respondent’s circumstances. Respondent sought to compelarbitration at the inception of this case. It never affirmatively represented that it would forgo arbitration, and immediately renewedits motion to compelarbitration after Concepcion. Thus, the case law cited by Appellant that Respondent somehowwantedto “have its cake and eatit too” is irrelevant. (See Kingsbury v. Greenfiber LLC (C.D.Cal. June 29, 2012), No. CV08—00151— AHM (AGRx), 2012 WL 2775022, *4-5 (Defendant was aware that Discover Bank did not apply to its arbitration agreement, and could notrely upon Discover Bankto justify the four month delay after Concepcion was issued to seek arbitration); Jn Re Toyota (2011) 828 F.Supp.2d 1150, 1154, 1163 (the defendant waivedits right to compelarbitration because 34 defendant failed to compelarbitration until 6 months after Concepcion was issued).) Respondent moved immediately after Concepcion to compel arbitration. 3. Appellant has not shown prejudice by the supposed “delay.” A party’s mere participation in litigation and discovery without prejudice to the opposing party, will not compel a finding ofwaiver ofthe right to arbitrate. (Sobremente v. Superior Court (1998) 61 Cal.App.4th 980, 995; Saint Agnes, 31 Cal.4th at 1205; Shinto Shipping Co., Ltd. v. Fibrex & Shipping Co. (9th Cir. 1978) 572 F.2d 1328, 1330.) Prejudice typically is found only where:(1) the petitioning party used the judicial discovery processes to gain information about the other side's case that could not have been gainedin arbitration; (2) where a party undulydelayed | and waited until the eve oftrial to seek arbitration; or (3) where the lengthy delays associated with the petitioning party's attemptsto litigate resulted in lost evidence. (Saint Agnes, 31 Cal.4th at 1204; Davis v. Cont’l Airlines, Inc. (1997) 59 Cal.App.4th 205, 211-12; see Groom v. Health Net (2000) 82 Cal.App.4th 1189, 1196.) Noneof these factors are present here. Appellant’s citation to Roberts v. El Cajon Motors, Inc. (2011) 200 Cal.App.4th 832 does not changethis analysis. In Roberts, the appellate court “assume[d]” that under Concepcion,the class action waiver in defendant’s arbitration provision was enforceable. (/d. at 846.) It concluded, however, that defendant waivedits right to arbitrate because:(i) it never informedplaintiff ofits intent to arbitrate and instead litigated for seven months; (ii) plaintiff was prejudiced becauseplaintiffengaged in “substantial” discovery on the class action allegations that, pursuant to Concepcion, would now beuseless in arbitration; and (iii) the evidence revealed defendantintentionally delayed to seek arbitration in order to reduce the size of the putative class by settling with class members. (/d. at 35 845-47.) These facts are clearly distinguishable. Most notably, Appellant has been on notice of Respondent’s intention to arbitrate since he filed his original lawsuit. (1 AA 48-65.) When Appellant refused to arbitrate withoutthe “class action mechanism,” Respondent promptly moved for an order compelling Iskanian to arbitrate his individual claims. (1 AA 32-84.) Although Gentry subsequently overruled Respondent’s ability to compel Iskanian to arbitrate his individual claims, Respondent promptly moved to compelarbitration a second time based on Concepcion’s new intervening law. (7 AA 1806-1941.) Against this backdrop, Appellant is hard-pressed to argue that he was never put on notice of Respondent’s desire to arbitrate his individual claims. Further, unlike Roberts, there is no finding or evidence here that Respondent had engaged in badfaith by intentionally delaying an effort to seek arbitration. Respondent promptly renewedit motion to compel arbitration in response to the Concepcion decision when it became apparent that the Respondentarbitration agreement would be enforced accordingto its terms. Furthermore, delay alone does not cause prejudice to an opposing party. “Mere delay in seeking a stay of the proceedings without some resulting prejudice to a party [citation] cannot carry the day.” (Christensen, 33 Cal.3d at 782.) To establish “prejudice,” Appellant must clearly show that the purported “delay” resulted in lost evidence, disclosure of information in the course of discovery not otherwise available in arbitration, or in someother prejudicial act. (Saint Agnes, 31 Cal.4th at 1204.) Appellant has failed to make this showing. In six of Appellant’s cases, the party seeking arbitration never provided notice oftheir intent to arbitrate, conducted extensive discovery which could not be used in arbitration, and failed to provide an explanation for the delay. More importantly, none of these cases had an intervening law which created a newright to compel arbitration. Indeed, the parties always had the right to 36 compelarbitration, but simplyfailed to do so. (Guess?, Inc. v. Super. Ct. (2000) 79 Cal.App.4th 553, 557-58 (Defendant did not demonstrate any intent to arbitrate for four months, never explained why it delayed compelling arbitration, and there was no change in the law); Davis, supra, 9 Cal.App.4th at 213 (Defendant obtained 1600 pages of documents, sought discovery even thoughplaintiff did not have the sameright to discoveryin arbitration, and there was no newright to arbitration); Augusta v. Keen & Associates (2011) 193 Cal.App.4th 331, 338, 342 (defendant did not demand arbitration for over six months, did not offer an explanation for the delay, conducted extensive discovery on the merits but refused to reciprocate discovery, and there was no new intervening changein the law); Sobremonte, supra, 61 Cal.App.4th at 993-95 (Defendant filed multiple motions, refused to turn over documents, did not compelarbitration for 10 months, and there was no changein the law); Burton v. Cruise (2011) 190 Cal.App.4th 939, 949 (plaintiff never demonstrated an intentto arbitrate, waited 11 months to compelarbitration, and there was no changein the law); Adolph v. Coastal Auto Sales (2010) 184 Cal.App.4th 1443, 1451 (defendant delayed six months, filed a motion to compelafter its demurrer was overruled to take advantage ofplaintiff, and there was no change in the law); Hoover v. Am. IncomeLife Ins. Co. (2012) 206 Cal.App.4th 1193, 1198, 1206 (Defendant did not have an agreement to arbitrate the alleged claims, the Court did not consider Concepcion, and there was no newright to arbitrate); Lewis v. Fletcher Jones Motor Cars, Inc, (2012) 205 Cal.App.4th 436, 446-48 (the plaintiff did not file a class action, so the class action waiver was not an issue, and there was no intervening change in the law).) Here, the only “prejudice” is to class counsel who have been denied access to the promised land of class action status. 37 a. Nothing wasgainedin litigation that could not be gained in arbitration. Therecord is devoid of evidence showing that Respondent used court discovery procedures to gain information about Appellantthat it could not have otherwise gained in arbitration. (See, e.g., Grabowski, supra, 817 F.Supp.2d at 1167 (holding plaintiff was not prejudiced by defendant’s delay in seeking arbitration because there was no evidencethat in that time defendants obtained discovery which would not have been available in arbitration); Quevedo, supra, 798 F.Supp.2d at 1132 (defendant did not unfairly benefit from discovery procedures becauseit only responded to discovery requests and did not propound any discovery); cf Davis, supra, 59 Cal.App.4th at 213-14 (holding defendants unreasonably delayed compelling arbitration in order to take advantage of court discovery proceduresto learn plaintiff's strategies, evidence and witnesses and to pin plaintiff down to a particular version of the facts when defendants obtained 1,600 pages of documents fromplaintiff in 86 categories, took two days of plaintiffs videotaped deposition, and obtained other discovery that would not have otherwise been available to defendantin arbitration).) When Respondentwasforced to defenditself in litigation, Respondent took one day of Appellant’s deposition, and received 77 pages of documents pertaining to Appellant’s individual wage claim. (6 AA 1540, 1572-1612.) The discovery obtained by Respondent was precisely the type of discovery it could have obtainedin arbitration because Respondent’s arbitration agreement provides for “reasonable discovery.” (1 AA 80-82.) Respondent gained nothing from the “delay.” Respondent had to expend time and moneyinlitigation, which could have been prevented if Appellant submitted to the Arbitration Agreement, as Respondent requested. 38 b. The expenseof time and moneyis not dispositive. In addition, any argumentthat Appellant has invested a substantial amount of money in defendingthe litigation is unavailable. Mere participation “in litigation, by itself, does not result in a waiver, courts will not find prejudice where the party opposing arbitration showsonly thatit incurred court costs and legal expenses.” (Saint Agnes, supra, 31 Cal.4th at 1203 (citing Groom, supra, 82 Cal.App.4th at 1197).) Regardless, there is no evidence in the record that Appellant himself spent a single dimein the litigation. Moreover, even if class counsel was “prejudiced” by the investment of time and moneyin this case, courts have routinely characterized such prejudice as “self inflicted.” (See, e.g., Christensen, supra, 33 Cal.3d at 782 (“[a] party who brings a suit over a dispute which he has agreed to arbitrate has acted in violation of his agreement”); Quevedo, supra, 798 F.Supp.2d at 1132 (plaintiffs investment of time and resourcesin the litigation in the case did not amountto prejudice because the “wound [wa]s self-inflicted” when plaintiff chose the judicial forum in contravention of the arbitration agreement).) Indeed, Appellant complains that he was forced to conduct class discovery, yet it was class counsel’s decision to file a class action andresist arbitration. Appellant fails to cite any relevant, dispositive law on this topic. Substantial evidence supportsthe trial and appellate court’s decision that Respondent did not waiveits right to compelarbitration. IV. CONCLUSION The FAAis the law of the land and must be respected. The analysis of the FAA in Concepcion overrules Gentry, and instructs that the Arbitration Agreement must be enforced according to its terms, including any waiver of PAGArepresentative claims. There is no principled distinction between Gentry and Discover Bank; there is no principled 39 distinction between a class action and a PAGArepresentative action. Further, there is no “congressional command” in the NLRA or the NLGA that excepts employmentarbitration agreements from the FAA’s purview. Finally, there is substantial evidence in the record to support the conclusion that Respondent did not waiveits right to seek arbitration. Respectfully, the decision of the court below should be affirmed. Date: February 19,2013 FOX ROTHSCHILD LLP /s/ David F. Faustman David F. Faustman Attorneys for Respondents and Defendants CLS Transportation Los Angeles, LLC 40 CERTIFICATE OF WORD COUNT Pursuant to Rule 8.204(c) of the California Rules of Court, the text of the Respondents’ Brief does not exceed 14,000 words. Thetext of the Respondents’ Brief contains 11,880 words as determined by the word counting tool of Microsoft Word, the computer program used to prepare the brief. Date: February 19,2013 FOX ROTHSCHILD LLP /s/ David F. Faustman David F. Faustman Attorneys for Respondents and Defendants CLS Transportation Los Angeles, LLC 4] PROOF OF SERVICE I am employed in the County of San Francisco, State of California. I am over the age of 18 years and nota party to this action; my business address is: 235 Pine Street, Suite 1500, San Francisco, CA 94104. On February 19, 2013, I served the following documents: RESPONDENT’S ANSWERBRIEF ON THE MERITSonthe interested parties in this action by sending true and correct copy thereofin sealed envelopesto: SEE ATTACHED SERVICE LIST [X} BY PERSONAL SERVICE:I delivered the document, enclosed in a sealed envelope, by handto the offices of the addressee(s) namedherein. [X] BY OVERNIGHT DELIVERY: | am readily familiar with the firm’s practice of collection and processing correspondence for overnight delivery. Underthat practice, overnight packages are enclosed in a sealed envelope with a packingslip attached thereto fully prepaid. The package are picked up bythe carrierat our offices or delivered by our office to a designated collectionsite. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed this 15" day of February 2013 at San Francisco, California. SERVICE LIST Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 An original and 13 copies (via Personal Service) Capstone Law APC Raul Perez, Esq. Glenn A. Danas, Esq. Ryan H. Wu, Esq. 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Attorneysfor: Plaintiff/Appellant Arshavir Iskanian 1 Copy (via Overnight Delivery) Public Citizen Litigation Group Scott L. Nelson, Esq. (Pro Hac Vice) 1600 20"Street, NW Washington, DC 20009 Attorneys for: Plaintiff/Appellant Arshavir Iskanian 1 Copy (via Overnight Delivery) Appellate Coordinator Office of the Attorney General Consumer Law Section 300 South Spring Street Fifth Floor, North Tower Los Angeles, CA 90013 Office of the Attorney General 1 Copy(via Personal Service) Office of the District Attorney County of Los Angeles Appellate Division 210 West Temple Street, Suite 18000 Los Angeles, CA 90012 District Attorney of the county in whichthe lower proceeding was filed. 1Copy(via Personal Service) The Honorable Judge Robert Hess Department 24 c/o Clerk of the Court Los Angeles Superior Court 111 N. Hill Street Los Angeles, CA 90012 1 Copy (via Personal Service) California Court of AppealSecond Appellate District, Div. 2300 S. Spring StreetNorth Tower, 2" FloorLos Angeles, CA 90013 1 Copy(via Personal Service) 43