Western Bagel Co. v. Superior Court CA2/1

Filed 6/24/21 Western Bagel Co. v. Superior Court CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

WESTERN BAGEL COMPANY, B305625
INC.,
(Los Angeles County
Petitioner, Super. Ct. No. 19STCV22699)

v.

THE SUPERIOR COURT OF LOS
ANGELES COUNTY,

Respondent;

JOSE CALDERON,

Real Party in Interest.

ORIGINAL PROCEEDING; petition for writ of mandate.
Kenneth R. Freeman, Judge. Petition granted.
Lewis Brisbois Bisgaard & Smith, Brittany B. Sutton,
Tracy D. Forbath, and Katherine E. Akamine for Petitioner.
No appearance for Respondent.
 Bitton & Associates and Ophir J. Bitton for Real Party in
Interest.
____________________________
At all relevant times, real party in interest Jose Calderon
(Calderon), a Spanish-speaker who can read and write only basic
English, was employed by petitioner Western Bagel Company,
Inc. (Western Bagel) at one of its retail stores. Calderon
commenced a putative class action against Western Bagel for
allegedly failing to provide its employees with legally compliant
meal and rest breaks. Western Bagel moved to compel
arbitration, arguing that Calderon had executed an arbitration
agreement that required him to resolve disputes arising out of his
employment through binding arbitration. As the parties briefed
the motion, it became apparent that the severability clause in the
Spanish version of the arbitration agreement Calderon signed
indicates the parties agreed to nonbinding arbitration, whereas
the severability clause in the original English version of that
document suggests the parties consented to binding arbitration.
Western Bagel attributed the discrepancy to a typographical
error that a third-party company had made when it translated
the English version of the document to Spanish. Other provisions
in both the English and Spanish versions of the agreement,
however, either state explicitly, or strongly support the
conclusion, that the agreement calls for binding arbitration.
The trial court found that the Federal Arbitration Act
(FAA) governs the parties’ arbitration agreement, concluded that
the inconsistency between the Spanish and English severability
clauses creates an ambiguity regarding whether the parties
consented to binding or nonbinding arbitration, resolved this
ambiguity against Western Bagel pursuant to the constructive

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canon of contra proferentem (whereby an ambiguity in a contract
is construed against the drafter thereof),1 and ordered the parties
to arbitrate their dispute on a nonbinding basis.
Although it is unclear whether Western Bagel has sought
review of an appealable order, we need not reach that issue
because we exercise our discretion to construe Western Bagel’s
appeal as a petition for writ of mandate. Upon reaching the
merits of Western Bagel’s writ petition, we conclude the FAA
preempted the trial court’s use of contra proferentem. Next,
assuming arguendo there is an ambiguity regarding whether the
parties consented to binding or nonbinding arbitration, we
employ the FAA’s default rule that any ambiguities about the
scope of an arbitration agreement must be resolved in favor of
arbitration as envisioned by the FAA, a fundamental attribute of
which is a binding arbitral proceeding. We thus grant Western
Bagel’s petition and direct the trial court to enter a new order
compelling the parties to arbitrate their dispute via binding
arbitration in accordance with the terms of their arbitration
agreement.

1 (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc.
(2009) 176 Cal.App.4th 697, 716, citing, inter alia, Civ. Code,
§ 1654 [“In cases of uncertainty not removed by the preceding
rules, the language of a contract should be interpreted most
strongly against the party who caused the uncertainty to exist.”].)

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 FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only the facts relevant to this review
proceeding.

1. The Relationship of the Parties, Calderon’s
Execution of the Spanish Version of the Arbitration
Agreement, and Relevant Provisions of the English
and Spanish Versions of the Document
Western Bagel is a nationwide seller of bagels that has
retail locations in California. Since 1985, Calderon has worked
for Western Bagel as a retail store employee. Western Bagel
considers Calderon to be a “Spanish-only speaking employee,”
and Calderon claims that he “speak[s] broken English” and “can
read and write very basic English but . . . need[s] a
Spanish/English translator for letters and contracts.”
On December 13, 2018, Western Bagel provided Calderon
with a document, written in Spanish, that was titled, “Acuerdo
Mutuo Para Arbitraje De Reclamación,” which, translated into
English, means: “Mutual Agreement to Arbitrate Claims”
(MAAC). (Boldface, underscoring, & some capitalization
omitted.) Western Bagel drafted the MAAC originally in English,

2 Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s order and the parties’
filings. (See Baxter v. State Teachers’ Retirement System (2017)
18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts
provided in the trial court’s ruling]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are
reliable indications of a party’s position on the facts as well as the
law, and a reviewing court may make use of statements therein
as admissions against the party. [Citations.]’ [Citations.]”].)

4
and it later hired a third-party company to translate the MAAC
into the Spanish language version of the document that Western
Bagel supplied to Calderon.3
Calderon signed the Spanish MAAC on December 3, 2018,
as did Western Bagel’s representative, Steve Ustin. The parties
dispute, inter alia, whether: Calderon had the opportunity to ask
a Spanish-speaking employee questions concerning the MAAC;
Western Bagel required Calderon to sign and return the
document within a specific timeframe; and Western Bagel
provided Calderon with a copy of the Judicial Arbitration and
Mediation Services, Inc. (JAMS) rules referenced in the MAAC.
Western Bagel did not provide Calderon with the English
MAAC.4

3 We refer to the English-language version of the MAAC as
the “English MAAC,” and to the Spanish-language document
provided to Calderon as the “Spanish MAAC.” In discussing the
Spanish MAAC, we rely upon the English translation thereof
that Western Bagel submitted to the trial court, the accuracy of
which neither party disputes. Further, apart from the
severability provision in paragraph 10 of the MAAC and the
disclaimer included in the Spanish MAAC (both of which are
discussed in more detail later in this part), the parties do not
argue there is any material difference between the English
MAAC and the Spanish MAAC. Unless otherwise specified, this
opinion relies upon the English translation of the Spanish MAAC
when discussing the MAAC’s terms.
4 In its opening brief, Western Bagel suggests (but does not
specifically allege) that it supplied both the English MAAC and
the Spanish MAAC to Calderon. Specifically, Western Bagel
states: “On December 13, 2018, Western Bagel gave its
employees, including Calderon, . . . the Mutual Agreement to
Arbitrate Claims (‘arbitration agreement’) . . . . Western Bagel

5
 Paragraph 1 of the Spanish MAAC provides in pertinent
part: “To the maximum extent permitted by law, [Western
Bagel] and I mutually agree to resolution through binding
arbitration for all claims or causes of action . . . that [Western
Bagel] may bring against me or that I may bring against
[Western Bagel] . . . .” In addition, paragraph 1 states that
“[c]laims covered by this Agreement include, [inter alia], . . . any
claim arising under . . . state and local anti-discrimination laws,
fair employment laws and labor laws, including but not limited
to . . . the California Labor Code.”
Even though paragraph 1 states that Calderon and
Western Bagel agreed to have their disputes resolved through
binding arbitration, the severability provision in paragraph 10 of
the Spanish MAAC states in relevant part: “If any provision of
this Agreement, apart from paragraph 4,[5] is found to be

also gave Calderon copies of the arbitration agreement and JAMS
rules that were translated into Spanish since Calderon is a
Spanish-speaking employee.” (Italics added.) Yet, the excerpts of
the record Western Bagel cites to support these assertions do not
show Western Bagel supplied the English MAAC to Calderon on
that date. Additionally, Calderon asserts in his respondent’s
brief that Western Bagel did not give him the English MAAC on
December 13, 2018, and Western Bagel does not contest that
point in its reply. Western Bagel thus impliedly concedes that
it gave Calderon only the Spanish version of the MAAC on
that date. (See Rudick v. State Bd. of Optometry (2019)
41 Cal.App.5th 77, 89–90 [concluding that the appellants made
an implicit concession by “failing to respond in their reply brief to
the [respondent’s] argument on th[at] point.”].)
5 Paragraph 4 of the Spanish MAAC provides: “I
understand that by signing this Agreement, [Western Bagel] and
I waive the right to participate in a class action lawsuit or legal

6
unenforceable, whether in whole or in part, this finding will not
affect the validity of the rest of this Agreement and the
Agreement will be carried out to the fullest possible extent to
ensure that the resolution of all disputes between the parties as
described herein are resolved via neutral, non-binding
arbitration.” (Italics added.)
In contrast, paragraph 10 of the English MAAC provides
that if any part of the agreement other than paragraph 4 is found
to be unenforceable, “this Agreement shall be reformed to the
greatest extent possible to ensure that the resolution of all
conflicts between the parties as described herein are resolved by
neutral, binding arbitration.” (Italics added.) Western Bagel
claims that this discrepancy between the Spanish and the
English versions is attributed to a “typographical error” made by
the third-party translator when it prepared the Spanish MAAC.
Much like paragraph 1 of the Spanish MAAC, other
portions of the document expressly declare that the parties
agreed to resolve their disputes via binding arbitration. One part
of the introductory paragraph provides: “I understand that by
signing this [MAAC], both [Western Bagel] and I agree to resolve
any differences between us (except as specifically stated below)
through the binding arbitration procedures explained within this

process to the extent permitted by applicable law. Consequently,
[Western Bagel] and I may only file claims against the other
within our individual capacities, and neither may file a claim
against the other as a representative plaintiff or member of any
alleged class action lawsuit or legal action, unless contravened by
law. Moreover, unless [Western Bagel] and I otherwise agree in
writing, the arbitrator may not consolidate the claims of more
than one person and may not otherwise preside over any form of
class action lawsuit or legal action.”

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Agreement.” A bullet-point under the introductory paragraph
reads: “[A]ny claim arbitration [sic] undertaken by myself or
[Western Bagel] as opposed to being litigated through a court or
other agency will be mutually binding.” Similarly, paragraph 7(c)
provides in pertinent part: “The arbitrator’s decisions regarding
the claims will be final and binding between the parties and are
enforceable in any court that has jurisdiction thereof.”
Other provisions of the Spanish MAAC reflect that the
parties intended to participate in binding arbitration. For
instance, paragraph 3 states: “I understand that by signing this
Agreement, [Western Bagel] and I waive any rights to a jury trial
for any claims against the other, as previously described in
paragraph l.” One of the sentences preceding the signature lines
provides: “I acknowledge that, except as expressly provided
within this Agreement, I waive my right to file an adjudicated
claim or resolution through a court or jury, and that [Western
Bagel] also waives these rights.” (Boldface omitted.)
Furthermore, the following text appears below the
signature lines in the Spanish MAAC: “DISCLAIMER: The
translation of this document is for informational purposes only.
This is a translation originally drawn up in English. Accordingly,
it is understood that all legal rights, responsibilities and/or
obligations are governed by the original English version of this
document. Furthermore, we reserve the right to correct any
errors in this document. This document is available in Spanish
for your convenience only. You agree, however, that any
ambiguity or issue of interpretation will be resolved solely by the
English version of this document.”

8
2. The Commencement of the Instant Litigation and
Western Bagel’s Motion to Compel Arbitration
On July 1, 2019, Calderon filed a class action complaint
against Western Bagel, alleging four causes of action: (1) failure
to provide meal breaks, (2) failure to provide rest periods,
(3) waiting time penalties, and (4) unfair business practices. At
bottom, Calderon avers that Western Bagel “did not have any
policy for mandatory meal breaks and rest periods” until “in or
around 2016,” and “even after the policy change,” Western Bagel
failed to provide legally compliant meal and rest breaks.
Calderon seeks to represent two proposed classes: (1) “All
individuals employed and formerly employed by [Western Bagel]
in California in Retail Store position [sic] during the appropriate
time period whom [Western Bagel] failed to authorize and permit
the legally requisite meal periods”; and (2) “All individuals
employed and formerly employed by [Western Bagel] in
California in Retail Store position [sic] during the appropriate
time period whom [Western Bagel] failed to authorize and permit
the legally requisite rest periods . . . .”
Western Bagel filed the instant motion to compel
arbitration, asserting that the Spanish MAAC requires Calderon
to arbitrate all disputes arising out of his employment with
Western Bagel, and that Calderon’s class claims should be
dismissed.
Calderon opposed the motion to compel, arguing that
(1) there was no valid arbitration agreement because (a) Calderon
did not sign the English MAAC, (b) the Spanish MAAC provides
“ ‘[t]he translation [was] for informational purposes only[,]’ ” and
(c) the Spanish MAAC states that “the neutral arbitration would
not be binding”; and (2) the MAAC is unconscionable.

9
 In its reply, Western Bagel contended Calderon signed the
Spanish MAAC, the English MAAC “was merely included in
[Western Bagel’s] Motion as a complete version of the
MAAC . . . for the court and [Calderon’s] reference,” “[Western
Bagel’s] Motion makes no representation that [the English
MAAC] is the binding agreement between” Calderon and
Western Bagel, and Calderon failed to establish the MAAC is
unconscionable.
During the hearing on the motion, the trial court stated
that it was inclined to order Calderon to submit his claims to
nonbinding arbitration. The trial court then ordered the parties
to provide supplemental briefing on the following issues:
(1) whether the MAAC required the parties to participate in
binding or nonbinding arbitration; and (2) how the court should
proceed in the event it determined the parties could proceed to
only nonbinding arbitration.
In his supplemental brief, Calderon claimed that “a non-
binding arbitraion [sic] of his individual claims will likely be a
futile exercise . . . .” Western Bagel contended in its
supplemental brief that its third-party translator mistakenly
inserted the term “non-binding arbitration” into the Spanish
MAAC, and that the trial court should disregard that term.
The trial court issued an order granting Western Bagel’s
motion “on a non-binding basis.” It found that Calderon “agreed
to non-binding arbitration of his claims, and that non-binding
arbitration is required before the case can be further litigated.”
The lower court remarked “the two versions of the [MAAC] are
markedly different” because “[t]he unsigned English version
purports to require binding arbitration, while the Spanish
version states that arbitration will be non-binding.” Because the

10
court found that “the language purporting to create a binding,
versus non-binding, agreement to arbitrate is ambiguous at best,”
it “construe[d] the language against Western Bagel as the
drafter,” thereby concluding that Western Bagel had “not
established that a binding agreement to arbitrate exists.”
The trial court also found that “the FAA applies to the
arbitration agreement” because Western Bagel demonstrated
that it “regularly engage[d] in interstate commerce” and the
MAAC provides that the FAA governs the interpretation and
enforcement of the agreement. It further concluded that the
MAAC was not unconscionable because, although Calderon
established that “procedural unconscionability is present in the
agreement,” he had “not demonstrated that the agreement is
substantively unconscionable.” Because the court found that
Calderon “agreed only to non-binding arbitration,” the court
stated that it “need not reach the arbitrability of the class
claims,” and denied Western Bagel’s request to dismiss the class
claims.6
Western Bagel appealed the trial court’s order compelling
nonbinding arbitration.

6 Although Western Bagel insists that Calderon agreed to
binding arbitration, Western Bagel does not ask us to determine
whether Calderon may arbitrate his class claims. Accordingly,
we do not reach that issue. (See Pedlow v. Superior Court (1980)
112 Cal.App.3d 368, 370, 372 (Pedlow) [noting that a writ
petitioner bears the burden of demonstrating the trial court
erred]; Butte View Farms v. Agricultural Labor Relations Bd.
(1979) 95 Cal.App.3d 961, 966, fn. 1 [same].)

11
 DISCUSSION

A. Appealability
Code of Civil Procedure section 1294, subdivision (a)
provides: “An aggrieved party may appeal from: [¶] (a) An order
dismissing or denying a petition to compel arbitration.” Calderon
maintains that Western Bagel’s challenge to the trial court’s
order compelling nonbinding arbitration is not an appealable
order under this provision.
We need not resolve whether the trial court’s order is
appealable because Western Bagel persuasively argues that we
should exercise our discretion to treat its appeal as a writ
petition. (See Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758,
767–768 (Phillips) [“ ‘[I]mmediate review of an order granting a
motion to compel arbitration may be obtained by a petition for
writ of mandate.’ [Citations.] . . . . In the interest of justice and
to avoid unnecessary delay, we will treat the appeal as a petition
for a writ of mandate and proceed on that basis.”]; see also Nelsen
v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115,
1121–1123 [the panel declined to resolve whether a particular
order was appealable because the court exercised its discretion to
treat the appeal as a writ petition]; Evilsizor v. Sweeney (2014)
230 Cal.App.4th 1304, 1310 [same].)
Courts have “considered five factors in [considering
whether it is] appropriate to treat [an] appeal as a petition for a
writ: Whether ‘(1) requiring the parties to wait for a final
judgment might lead to unnecessary trial proceedings; (2) the
briefs and record included, in substance, the necessary elements
for a proceeding for a writ of mandate; (3) there was no indication
the trial court would appear as a party in a writ proceeding;
(4) the appealability of the order was not clear; and (5) the parties

12
urged the court to decide the issues rather than dismiss the
appeal.’ [Citations.]” (See Curtis v. Superior Court (2021)
62 Cal.App.5th 453, 465 (Curtis).) Although Calderon urges us
not to decide the issues raised in this appeal, the remaining
factors weigh in favor of treating this appeal as a petition for writ
of mandate.
First, if we required Western Bagel to wait for final
judgment, then Western Bagel would be forced to participate in
arbitration on a nonbinding basis and Calderon could litigate his
claims in the trial court thereafter. Yet, if Western Bagel is
correct that the MAAC obligates Calderon to submit his claims to
binding arbitration, then those postarbitration trial court
proceedings will have been unnecessary and improper.7
The parties have fully briefed the merits of Western Bagel’s
challenge to the trial court’s ruling, and an appeal of a final
judgment would not be an adequate remedy for Western Bagel
because the order compelling nonbinding arbitration may lead to
unnecessary and improper trial proceedings. (See Curtis, supra,
62 Cal.App.5th at p. 466 [indicating that the first and second
discretionary factors can overlap].)

7 We note that we summarily denied a petition for writ of
mandate that Western Bagel had filed to challenge the lower
court’s order. Notwithstanding our denial of Western Bagel’s
prior petition, we are permitted to grant Western Bagel writ
relief. (See Golden Door Properties, LLC v. Superior Court (2020)
53 Cal.App.5th 733, 788 [“[A] summary denial of a petition for a
writ of mandate is not a merits adjudication and ‘does not
establish law of the case . . . .’ [Citation.]”].)

13
 The parties do not claim that the trial court would appear if
Western Bagel had filed a writ petition, and it is not apparent
that the trial court would be inclined to do so.
The text of Code of Civil Procedure section 1294,
subdivision (a) does not specify whether an order compelling
nonbinding arbitration may constitute an appealable order if it
amounts to a denial of a request to compel binding arbitration.
(See Code Civ. Proc., § 1294, subd. (a).) Further, neither party
has identified a decision that has addressed this issue, and our
research has not revealed any either. Additionally, we observe
that even though Western Bagel asked us in its opening brief to
construe its appeal as a writ petition, Calderon has not identified
any reason why we should decline to exercise our discretion to do
so.
For these reasons, we elect to reach the merits of Western
Bagel’s challenge to the trial court’s ruling by treating the appeal
as a writ petition.
It does not follow, as Calderon contends in his respondent’s
brief, that we must address Calderon’s contention the trial court
erred in finding implicitly that he entered into an enforceable
arbitration contract. In his respondent’s brief, Calderon purports
to level a “counter writ petition” seeking “an order to proceed
without arbitration, because the parties never entered into any
arbitration contract due to the disclaimer in the Spanish MAAC.”
Calderon cannot seek writ relief in his response to Western
Bagel’s opening brief, but instead should have filed a cross-
petition. (See County of Sonoma v. Superior Court (2010)
190 Cal.App.4th 1312, 1324–1325, fn. 9 [“A real party in interest
may not obtain review of adverse trial court determinations by
way of response to another party’s writ petition.”].) Indeed,

14
Calderon does not cite any authority establishing that he may
request writ relief in his respondent’s brief. (Cf. Hernandez v.
First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [“ ‘We are not
bound to develop appellants’ arguments for them.’ ”].) Further,
there is no indication in the record that Calderon filed a
separate notice of appeal that we could construe as a writ
petition. (See Phillips, supra, 209 Cal.App.4th at pp. 767–768;
cf. Valentine v. Plum Healthcare Group, LLC (2019) 37
Cal.App.5th 1076, 1090–1091, fn. 4 [disregarding a respondent’s
challenge to a ruling that his claims were subject to arbitration
because the respondent did not file a cross-appeal].) Thus,
Calderon’s challenge to the trial court’s ruling is not properly
before us.

B. Standard of Review
“In ruling on a motion to compel arbitration, the trial court
shall order parties to arbitrate ‘if it determines that an
agreement to arbitrate the controversy exists . . . .’ [Citation.]
‘[T]he party seeking arbitration bears the burden of proving the
existence of an arbitration agreement by a preponderance of the
evidence, and the party opposing arbitration bears the burden of
proving by a preponderance of the evidence any defense . . . .’
[Citation.] In evaluating an order denying a motion to compel
arbitration, ‘ “ ‘we review the arbitration agreement de novo to
determine whether it is legally enforceable, applying general
principles of California contract law.’ ” ’ [Citation.] If the trial
court resolved contested facts, we ‘review the court’s factual
determinations for substantial evidence.’ [Citation.]” (Nielsen
Contracting, Inc. v. Applied Underwriters, Inc. (2018)
22 Cal.App.5th 1096, 1106 (Nielsen Contracting, Inc.).)

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 The FAA “provides that a contractual arbitration provision
‘shall be valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract[,]’ ” and it also ‘ “declare[s] a national policy favoring
arbitration” of claims that parties contract to settle in that
manner.’ [Citation.]” (Nielsen Contracting, Inc., supra,
22 Cal.App.5th at p. 1106.) “ ‘[E]ven when the [FAA] applies,
interpretation of the arbitration agreement is governed by state
law principles. . . . Under California law, ordinary rules of
contract interpretation apply to arbitration agreements. . . .
“ ‘The fundamental goal of contractual interpretation is to give
effect to the mutual intention of the parties. . . .’ ” ’ ” (Valencia v.
Smyth (2010) 185 Cal.App.4th 153, 177.)
“The FAA precludes states from ‘requir[ing] a procedure
that interferes with fundamental attributes of arbitration, “even
if it is desirable for unrelated reasons.” ’ [Citation.] This rule
‘applies equally to requirements imposed by statute or judicial
rule.’ [Citation.]” (Prima Donna Development Corp. v. Wells
Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 36 (Prima Donna
Development Corp.).) FAA preemption is a matter of federal
law that we review de novo. (See Mount Diablo Medical Center v.
Health Net of California, Inc. (2002) 101 Cal.App.4th 711, 716–
717 [“[Appellant] argues[ ] the FAA has preempted [a] provision
of California law and the court was required to enforce the
arbitration provision. As the parties agree, this issue presents a
question of law subject to de novo review by the appellate
court.”]; cf. Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460,
1468–1469 [“Whether a state cause of action is preempted by
section 301 [of the Labor Management Relations Act] is a
question of federal law we review de novo.”].)

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C. The FAA Preempts Applying the Contra Proferentum
Rule Here and Requires Us to Construe Any
Ambiguity in Favor of Binding Arbitration8
The trial court seems to have: (1) treated the English and
Spanish MAACs as if they collectively constitute one document,
(2) found that the inclusion of the term “non-binding arbitration”
in the Spanish MAAC created an ambiguity regarding whether
Calderon agreed to submit his claims to binding or nonbinding
arbitration, (3) and employed the interpretive doctrine of contra
proferentem to “construe the language against Western Bagel as
the drafter” and conclude that Calderon “agreed only to non-
binding arbitration . . . .”9
As a preliminary matter, we note the trial court did not
explain clearly why it apparently considered the English and
Spanish MAACs to be one document. Further, it is not altogether
clear that an ambiguity exists, given that the MAAC states
repeatedly that the parties agreed to binding arbitration and that
they waived their right to try their claims in a court or jury trial,
and that paragraph 10 of the Spanish MAAC (which is operative

8 Neither party challenges the trial court’s ruling that the
FAA governs the parties’ arbitration agreement. (See Pedlow,
supra, 112 Cal.App.3d at p. 370 [“A judgment or order of the
lower court is presumed correct.”].)
9 Although the trial court stated at one point that “the
language purporting to create a binding, versus non-binding,
agreement to arbitrate is ambiguous at best,” the court later
indicated that it did, in fact, find an ambiguity when the court
declared: “[G]iven the ambiguity discussed above, the ambiguity
must be construed against [Western Bagel] as the drafter of the
agreement.” (Italics added.)

17
only if part of the agreement has been declared illegal) is the only
provision referencing nonbinding arbitration. (See Factual and
Procedural Background, part 1, ante; see also Dore v. Arnold
Worldwide, Inc. (2006) 39 Cal.4th 384, 391 [“ ‘An ambiguity
arises when language is reasonably susceptible of more than one
application to material facts[,]’ ” italics added].)
In addition, although the trial court acknowledged Western
Bagel’s claim that a third-party translator mistakenly had
inserted the phrase “non-binding arbitration” into the Spanish
MAAC, it does not appear the court considered whether that
assertion undermines the court’s premise that Western Bagel
was the drafter against whom an ambiguity may be construed
under the contra proferentem doctrine.
Even assuming arguendo the trial court did not err in:
(1) considering the two versions of the MAAC to be one
agreement; (2) finding an ambiguity concerning whether the
MAAC calls for binding or nonbinding arbitration; and (3) finding
that Western Bagel was the drafter for the purposes of the contra
proferentem doctrine, the United States Supreme Court’s
decision in Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407
(Lamps Plus, Inc.), establishes the trial court erred in utilizing
that doctrine to resolve any such ambiguity.
In Lamps Plus, Inc., the Ninth Circuit Court of Appeals
found under California contract law that an arbitration
agreement governed by the FAA “was ambiguous on the
availability of class arbitration” to an employee bringing class
claims against his employer for compromising confidential
employee tax information. (See Lamps Plus, Inc., supra,
139 S.Ct. at pp. 1412–1414.) The intermediate appellate court
relied upon contra proferetem to construe the ambiguity against

18
the employer, thereby concluding the employee could proceed to
class arbitration. (See id. at p. 1413.) The Supreme Court
reversed that decision, and remanded the matter to the Ninth
Circuit for further proceedings, on the ground that the FAA
barred the circuit court from deploying contra proferentem to find
that the agreement permitted class arbitration. (See id. at
pp. 1417–1419.)
The high court first followed its “normal practice” to “defer
to the Ninth Circuit’s interpretation and application of state law
and thus accept that the agreement should be regarded as
ambiguous.” (See Lamps Plus, Inc., supra, 139 S.Ct. at p. 1415.)
It then observed “[a]lthough courts may ordinarily [construe
arbitration agreements] by relying on state contract principles,
[citation], state law is preempted to the extent it ‘stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives’ of the FAA, [citation]” such as “ ‘by “interfer[ing]
with fundamental attributes of arbitration.” ’ [Citation.]” (See
id. at pp. 1415, 1418.)
The Supreme Court further stated that an “individualized
form of arbitration [is] envisioned by the FAA,” wherein “ ‘parties
forgo the procedural rigor and appellate review of the courts in
order to realize the benefits of private dispute resolution, lower
costs, greater efficiency and speed, and the ability to choose
expert adjudicators to resolve specialized disputes.’ [Citation.]”
(See Lamps Plus, Inc., supra, 139 S.Ct. at p. 1416.) In contrast,
“[c]lass arbitration lacks those benefits” because “[i]t ‘sacrifices
the principal advantage of arbitration—its informality—and
makes the process slower, more costly, and more likely to
generate procedural morass than final judgment.’ [Citation.]”
(See ibid.) “Because of these ‘crucial differences’ between

19
individual and class arbitration, . . . . courts may not infer
consent to participate in class arbitration absent an affirmative
‘contractual basis for concluding that the party agreed to do so.’
[Citation.]” (See ibid.) Furthermore, “[l]ike silence, ambiguity
does not provide a sufficient basis to conclude that parties to an
arbitration agreement agreed to ‘sacrifice[ ] the principal
advantage of arbitration’ ” by “ ‘resolv[ing their] disputes through
classwide arbitration.’ [Citation.]” (See ibid.)
The Supreme Court then noted, “[u]nlike contract rules
that help to interpret the meaning of a term, and thereby uncover
the intent of the parties, contra proferentem is by definition
triggered only after a court determines that it cannot discern the
intent of the parties” using “ordinary methods of [contract]
interpretation.” (Lamps Plus, Inc., supra, 139 S.Ct. at p. 1417.)
Because the doctrine “resolves the ambiguity against the drafter
based on public policy factors, primarily equitable considerations
about the parties’ relative bargaining strength,” “ ‘it can scarcely
be said to be designed to ascertain the meanings attached by the
parties.’ [Citation.]” (Ibid.) The Supreme Court further
reasoned that, because applying this “state contract principle[ ]”
to an ambiguity concerning whether the parties agreed to class
arbitration would “ ‘reshape traditional individualized
arbitration . . . . without the parties’ consent[,]’ ” contra
proferentem “ ‘interferes with fundamental attributes of
arbitration and thus creates a scheme inconsistent with the FAA.’
[Citation.]” (See id. at p. 1418.)
Accordingly, the Lamps Plus, Inc. court held that “[t]he
doctrine of contra proferentem cannot substitute for the requisite
affirmative ‘contractual basis for concluding that the part[ies]
agreed to [class arbitration].’ [Citation.]” (Supra, 139 S.Ct. at

20
p. 1419.) Upon holding the FAA bars a court from relying on this
interpretive doctrine to ascertain whether an agreement
authorizes classwide arbitration, the high court stated that “the
FAA provides the default rule for resolving ambiguity here”—i.e.,
“ambiguities about the scope of an arbitration agreement must be
resolved in favor of arbitration.”10 (See id. at pp. 1418–1419.)
Lamps Plus, Inc. controls here. Just as “individual
arbitration” is a “ ‘fundamental attribute[ ] of arbitration’ ”
“envisioned by the FAA” (i.e., because of, inter alia, its “lower
costs, greater efficiency and speed”) (see Lamps Plus, Inc., supra,
139 S.Ct. at pp. 1416, 1418), so too is “the expectation ‘that the
arbitrator’s decision will be both binding and final[,]’ ” given that
this characteristic safeguards “ ‘arbitral efficiency’ ” too. (See
Prima Donna Development Corp., supra, 42 Cal.App.5th at p. 44;
cf. ibid. [“The limited nature of judicial review of arbitration
agreements stems from the expectation ‘that the arbitrator’s
decision will be both binding and final.’ [Citation.] The FAA
precludes courts from ‘impos[ing] unconscionability rules
[regarding limited judicial review] that interfere with arbitral
efficiency.’ [Citation.]”].) Consequently, the FAA precluded the
trial court here from inferring from a purported ambiguous

10 Although the Lamps Plus, Inc. court did not state
explicitly that the FAA’s default rule precluded the employee
from arbitrating his class claims, the high court tacitly reached
that conclusion. The Supreme Court stated that the form of
arbitration “envisioned by the FAA” is “ ‘traditional
individualized arbitration[,]’ ” and the high court reversed the
circuit court’s judgment, which would have been unnecessary if
the type of “arbitration” subject to the FAA’s default rule
encompassed the classwide resolution of claims. (See Lamps
Plus, Inc., supra, 139 S.Ct. at pp. 1412, 1418–1419.)

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agreement that Calderon and Western Bagel consented to
nonbinding arbitration. Consistent with Lamps Plus, Inc., the
trial court could not apply “[t]he doctrine of contra proferentem
[as a] substitute for the requisite affirmative ‘contractual basis
for concluding’ ” the parties had agreed to forgo “the central
benefits of arbitration itself” by submitting their disputes to
nonbinding arbitration. (See Lamps Plus, Inc., at pp. 1417,
1419.) Applying the FAA’s default rule in Lamps Plus, Inc.,
we resolve any alleged ambiguity as to whether the arbitration
would be binding in favor of the form of arbitration contemplated
by the FAA—binding arbitration. (See id. at pp. 1418–1419;
Prima Donna Development Corp., at p. 44.)
Calderon’s arguments to the contrary are unavailing.
Calderon claims that Lamps Plus, Inc. is distinguishable because
the agreement in that case “ ‘include[d] no express mention of
class proceedings[,]’ ” (see Lamps Plus, supra, 139 S.Ct. at
p. 1413), whereas the two versions of the MAAC use the terms
“binding arbitration” and “non-binding arbitration.” This
distinction is immaterial because as just noted, “[n]either silence
nor ambiguity provides a sufficient basis for concluding that
parties to an arbitration agreement agreed to undermine the
central benefits of arbitration itself.” (See Lamps Plus, Inc., at
p. 1417, italics added; see also St. Paul Mercury Ins. Co. v.
Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1244
[“An ambiguity results ‘when “there is contradictory or
necessarily inconsistent language in different portions of the
instrument . . . .” ’ [Citations.]”].)
Calderon also claims that the trial court’s reliance on
contra proferentem in the instant case is consistent with Lamps
Plus, Inc. because the lower court’s ruling ensured that the

22
parties would not be required to resolve their claims via binding
arbitration in the absence of evidence of their consent to do so.
He further points out that Lamps Plus, Inc. acknowledged that
courts “ ‘presume that parties have not authorized arbitrators to
resolve certain “gateway” questions, such as “whether the parties
have a valid arbitration agreement at all or whether a concededly
binding arbitration clause applies to a certain type of
controversy.” ’ ” (Quoting Lamps Plus, Inc., supra, 139 S.Ct. at
pp. 1416–1417, italics added by Calderon.)
Calderon overlooks the fact that the type of consent that
Lamps Plus, Inc. held cannot be inferred in the absence of “an
affirmative ‘contractual basis’ ” is an agreement “to undermine
the central benefits of arbitration itself.” (See Lamps Plus, Inc.,
139 S.Ct. at pp. 1416–1417.) As we explained above, binding
arbitration is a fundamental attribute of arbitration that secures
the benefits envisaged by the FAA. Lamps Plus, Inc. did not hold
that a court cannot compel the parties to submit to binding
arbitration in the absence of an unambiguous expression of their
consent to do so; in fact, the high court stated that “ambiguities
about the scope of an arbitration agreement must be resolved in
favor of arbitration.” (See id. at p. 1418.)
In addition, Lamps Plus, Inc.’s discussion of “gateway”
questions does not pertain to the instant matter because the trial
court did not utilize contra proferentem to ascertain whether an
arbitrator may decide questions reserved ordinarily to courts
(e.g., whether a valid arbitration contract was formed). Rather,
the trial court invoked this canon to determine whether an award

23
issued by the arbitrator would bind the parties.11 Lamps Plus,
Inc. establishes that the FAA precludes such an approach.
We also note that the trial court cited Division Six’s opinion
in Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th
1197, to support its interpretation of the parties’ agreement. In
Juarez, an employee signed acknowledgment forms indicating
that he received the English and Spanish versions of an employee
handbook; both versions of the handbook included an illegal
waiver of the employee’s right to bring a representative claim
under the Labor Code Private Attorneys General Act of 2004
(PAGA; Lab. Code, § 2698 et seq.). (See Juarez, at pp. 1200–
1202.) “The English-language version of the handbook . . .
provide[d] that the PAGA waiver [was] severable from the
arbitration agreement should a court find the waiver [was]
unenforceable. In contrast, the Spanish-language version of the

11 Although Western Bagel contends that an arbitrator
should have decided whether the parties agreed to binding or
nonbinding arbitration, it is unnecessary to resolve that question
because our ruling grants Western Bagel the relief it seeks: An
order “revers[ing] the trial court’s order denying its motion to
compel binding arbitration and remand[ing] with directions to
the trial court to enter an order directing binding arbitration
under the terms of the arbitration agreement.” (Cf. Costa Serena
Owners Coalition v. Costa Serena Architectural Com. (2009)
175 Cal.App.4th 1175, 1205 [“Our disposition of the . . . appeal
from the judgment in this case renders moot [the appellant’s]
appeal from the trial court’s denial of his motion to vacate the
judgment. The judgment that [the appellant] wishes to have
vacated is no longer in effect. Therefore, neither the trial court
nor this court can grant him the relief that he requests in his
motion to vacate, or in his appeal from the denial of that
motion.”].)

24
handbook provide[d] that the PAGA waiver [was] not severable
from the arbitration agreement.” (Id. at p. 1200.) The Court of
Appeal found that this discrepancy created an ambiguity, and
construed the ambiguity against the drafter (the employer) such
that the Spanish version of the severability clause governed. (See
id. at pp. 1199, 1203.) As a consequence, the court concluded the
invalid PAGA waiver rendered the entire arbitration agreement
unenforceable. (See ibid.)
Juarez does not undermine our conclusion that Calderon
must submit his claims to binding arbitration. There is no
indication in the Juarez decision that the FAA applied to the
contract at issue there. (See, e.g., Juarez, supra, 24 Cal.App.5th
at p. 1202 [instead stating that “general principles of California
contract law” governed the appellate court’s review of the trial
court’s decision].) In any event, we are bound by the Lamps Plus,
Inc. decision’s interpretation of the FAA. (Pierce v. San Mateo
County Sheriff’s Dept. (2014) 232 Cal.App.4th 995, 1006
[“[D]ecisions of [the] U.S. Supreme Court on questions of federal
law ‘are binding on all state courts under the supremacy clause of
the United States Constitution.’ ”], quoting People v. Fletcher
(1996) 13 Cal.4th 451, 469, fn. 6.)
In sum, the trial court erred in applying contra
proferentem to determine whether the parties agreed to binding
or nonbinding arbitration. Furthermore, the FAA’s default rule
requires us to construe any ambiguity on this point in favor of
binding arbitration. Because this analysis is dispositive of
Western Bagel’s challenge to the trial court’s order, we do not
reach the parties’ other issues.

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 DISPOSITION
The appeal from the order compelling nonbinding
arbitration is treated as a petition for writ of mandate. The
petition is granted. The trial court is directed to (1) vacate its
order compelling nonbinding arbitration, and (2) enter a new
order compelling binding arbitration under the terms of the
parties’ arbitration agreement. Each side is to bear its own costs
in this review proceeding.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

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