FILED
NOT FOR PUBLICATION DEC 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LOURDES LEFEVRE, as an individual No. 16-55059
and on behalf of all employees similarly
situated, D.C. No. 5:15-cv-01305-VAP
(SPx)
Plaintiff-Appellee,
v. MEMORANDUM*
FIVE STAR QUALITY CARE, INC., a
Maryland Corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted November 16, 2017**
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: NGUYEN and HURWITZ, Circuit Judges, and SEEBORG,*** District
Judge
Five Star Quality Care, Inc. appeals the district court’s order denying its
motion to compel arbitration of Lourdes Lefevre’s representative claims under
California’s Private Attorney General Act (“PAGA”). Reviewing the order de
novo, see Kilgore v. Keybank, Nat’l Ass’n, 718 F.3d 1052, 1057 (9th Cir. 2013) (en
banc) (citation omitted), we affirm.
1. Lefevre argues that this Court lacks jurisdiction to hear this appeal
because the district court has yet to hold an evidentiary hearing on whether she
signed the arbitration agreement in this case. But because the district court issued
an order denying arbitration of Lefevre’s PAGA claims, this Court has jurisdiction
to hear the appeal under 9 U.S.C. § 16(a).
2. Five Star argues that the district court erred in determining that California,
not Maryland, contract law governs whether a PAGA waiver is enforceable. To
evaluate whether the arbitration agreement’s choice-of-law clause was enforceable,
the district court applied the principles set forth in Section 187 of the Restatement
(Second) of Conflict of Laws. See Nedlloyd Lines B.V. v. Superior Court, 3 Cal.
*** The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
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4th 459, 465–66 (1992). Applying the choice-of-law principles of the forum
state, California, the district court reasoned that application of Maryland law would
be contrary to a fundamental policy of California, which encourages private
enforcement of labor code violations. California, which does not recognize
contractual waivers of PAGA claims, has a materially greater interest in applying
its law to an employment contract involving work performed in California than
does Maryland. Therefore, the district court was correct to apply California
rather than Maryland law when deciding whether the PAGA waiver was
enforceable.
3. Five Star argues that DirecTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015),
abrogated Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir.
2015), and Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348
(2014), which find PAGA waivers unenforceable. We disagree; Imburgia is not
“clearly irreconcilable” with Sakkab or Iskanian. Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). Imburgia simply held that a California court
failed to place arbitration contracts “on equal footing with all other contracts”
when it interpreted a choice-of-law provision in an arbitration agreement. 136 S.
Ct. at 468–71 (quoting Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
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443 (2006)). Sakkab and Iskanian, in contrast, directly addressed the validity of
PAGA waivers in arbitration agreements. Sakkab, 803 F.3d at 431–40; Iskanian,
59 Cal. 4th at 378–89. Therefore, neither case is undermined by Imburgia.
AFFIRMED.
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