Baltazar v. Ace Parking Management CA4/1

Filed 10/26/23 Baltazar v. Ace Parking Management CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GLORIA BALTAZAR, D081483

Plaintiff and Respondent,

v. (Super. Ct. No. 37-2021-
00023736-CU-OE-CTL)
ACE PARKING MANAGEMENT, INC.
et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of San Diego County,
James A. Mangione, Judge. Reversed with instructions.
Schwartz Semerdjian Cauley & Evans, Dick A. Semerdjian, Sarah
Brite Evans and Mary R. Powell for Defendants and Appellants.
GrahamHollis, Graham S.P. Hollis, Vilmarie Cordero and Dawn M.
Berry for Plaintiff and Respondent.

INTRODUCTION
This is an action brought under the Labor Code Private Attorneys
General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) by Gloria Baltazar
against Ace Parking Management, Inc., Ace Parking, Inc., and Ace Parking
Facilities, Inc. (collectively, Ace Parking). Within her complaint, Baltazar
asserts a single cause of action under PAGA based on Labor Code violations
she suffered personally (individual PAGA claims) and Labor Code violations
suffered by other Ace Parking employees (non-individual PAGA claims). Ace
Parking moved to compel arbitration of Baltazar’s individual PAGA claims
pursuant to a written agreement in which Baltazar agreed to arbitrate “all
disputes that may arise out of or be related in any way to [her] employment.”
The trial court denied Ace Parking’s motion based on a provision in the
parties’ arbitration agreement that allowed “a representative claim under the
[PAGA]” to proceed in court “pending resolution of claims that are
arbitrable.”
Upon independently reviewing the arbitration agreement, we conclude
Baltazar’s individual PAGA claims are covered by a clause requiring
arbitration of “all disputes that may arise out of or be related in any way to
[her] employment.” Although there are subsequent provisions in the
agreement that carve out certain claims from arbitration, two are ambiguous
as to whether they withdraw Baltazar’s individual PAGA claims from the
scope of arbitration. Because the agreement specified arbitration would be
conducted under the Federal Arbitration Act, we construe the ambiguity in
favor of arbitration pursuant to controlling United States Supreme Court
authority requiring us to do so. We determine a third carve-out provision in
the agreement is properly interpreted not to encompass Baltazar’s individual
PAGA claims. Because the parties’ agreement to arbitrate plainly
encompasses her individual PAGA claims, and no other provision in the
agreement clearly exempts them from arbitration, the trial court erred by
denying Ace Parking’s motion. We reverse.

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 FACTUAL AND PROCEDURAL BACKGROUND
I.
The Parties’ 2019 Arbitration Agreement
From May 2013 until March 2020, Baltazar worked as a shuttle bus
driver for Ace Parking. In August 2019, she signed a “Team Member
Acknowledgement and Agreement” presented to her by Ace Parking.
Paragraphs 2 through 5 of this document set forth the terms of an arbitration
agreement (arbitration agreement or agreement).
Paragraph 2 of the agreement opened with a provision stating, “I and

the Company[1] agree to utilize binding individual arbitration as the sole and
exclusive means to resolve all disputes that may arise out of or be related in
any way to my employment.” Paragraph 2 further provided that arbitration
would be conducted “under the Federal Arbitration Act ([FAA]), in conformity
with the procedures of the California Arbitration Act[.]” After describing the
scope of disputes subject to the agreement to arbitrate (which included “all
disputes, whether based on . . . statute . . . or otherwise”), it went on to state:
“The only exceptions to binding arbitration shall be for claims arising under
the National Labor Relations Act which are brought before the National
Labor Relations Board, claims for medical and disability benefits under the
California Workers’ Compensation Act, Employment Development

1 The agreement defines “Company” to mean Ace Parking Management,
Inc. In moving to compel arbitration, Ace Parking took the position the other
two Ace Parking defendants (Ace Parking, Inc. and Ace Parking Facilities,
Inc.) were entitled to enforce the agreement on the ground they were express
beneficiaries or intended third party beneficiaries of the agreement. Baltazar
has not disputed this position. As this point has been conceded, we treat the
agreement as applying to disputes with all three Ace Parking entities.

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Department claims, or other claims that are not subject to arbitration under
current law.”
Paragraph 3 of the agreement provided in full: “I agree that any claims
brought under this binding arbitration Agreement shall be brought in the
individual capacity of myself only, and, similarly, any claims brought under
this binding arbitration Agreement by the Company shall be brought by the
Company only. This binding arbitration Agreement shall not be construed to
allow or permit the consolidation or joinder of claims of other claimants, or
permit such claims to proceed as a class or collective action. No arbitrator
shall have the authority under this agreement to order any such class or
collective action. Any dispute regarding the validity, scope or enforceability
of this Agreement shall be resolved by a court, not by the arbitrator. By
signing this agreement, I am agreeing to waive any substantive or procedural
rights that I may have to bring or participate in an action brought on a class
or collective basis. If under applicable law a representative claim under the
California Private Attorneys General Act (‘PAGA’) is found to be unwaivable
and such an action is pursued in court, I and the Company agree that any
such PAGA claim will be severed and stayed pending resolution of claims
that are arbitrable.”
Paragraph 4 of the agreement addressed selection of an arbitrator,
procedures that would apply during arbitration, and other matters not at
issue here.
Paragraph 5 of the agreement stated in its entirety: “If any term or
provision or any portion of this Agreement is deemed invalid or
unenforceable, it shall be severed and the remainder of this Agreement shall
be enforceable. Under no circumstances shall this Agreement be construed to
allow arbitration on a class, collective, representative or other similar basis.”

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 II.
Trial Court Proceedings
A. Baltazar Files a PAGA Action Against Ace Parking
In 2021, after Baltazar’s attorney first gave notice to Ace Parking as
well as the Labor and Workforce Development Agency (LWDA) pursuant to
Labor Code section 2699.3, Baltazar initiated a lawsuit against Ace Parking.
Her complaint was titled, “REPRESENTATIVE ACTION FOR CIVIL
PENALTIES PURSUANT TO THE [PAGA],” and stated in its opening line
that Baltazar was bringing the action in “her representative capacity.” The
complaint contained a single cause of action under PAGA based on numerous
alleged wage-and-hour and meal- and rest-period Labor Code violations
assertedly suffered by Baltazar and other non-exempt Ace Parking
employees, as well as alleged violations of Ace Parking’s obligations under
the Labor Code to maintain or furnish accurate records and wage statements.
As the sole remedy for the claimed Labor Code violations, Baltazar sought
recovery of civil penalties on behalf of herself and other aggrieved employees.
B. Ace Parking’s Motion to Compel Arbitration
In September 2022, Ace Parking moved to compel arbitration of
Baltazar’s “[i]ndividual PAGA [c]laims” and to dismiss her “[n]on-[i]ndividual
PAGA claims” pursuant to the arbitration agreement. Ace Parking argued
the agreement was governed by the FAA. As such, the United States
Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 596
U.S. ___ [142 S.Ct. 1906] (Viking River) preempted the California Supreme
Court’s decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014)
59 Cal.4th 348 (Iskanian) to the extent Iskanian had been interpreted as
prohibiting courts from compelling a plaintiff-employee to arbitrate the
individual component of a single-count PAGA claim. Ace Parking asserted

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that Baltazar’s individual PAGA claims fell within the provision of paragraph
2 requiring arbitration of “any claim . . . that I may have against the
Company” and did not fall within any contractual exception to arbitration.
Relying on Viking River, which held as a matter of California law that a
plaintiff-employee’s non-individual PAGA claims must be dismissed for lack
of standing after her individual PAGA claims are sent to arbitration, Ace
Parking asked the court to issue an order (1) compelling Baltazar to arbitrate
her individual PAGA claims, and (2) dismissing her non-individual PAGA
claims.
C. Baltazar’s Opposition to the Motion
Baltazar responded that even in arbitration agreements governed by
the FAA, whether the agreement requires arbitration of a particular
controversy is a question determined under state law. She claimed her
agreement with Ace Parking could not be enforced as a matter of state law
because it was procedurally and substantively unconscionable, including
because in 2013 she executed a different arbitration agreement with Ace
Parking that, unlike the 2019 arbitration agreement, contained a provision
stating, “I expressly agree to waive any right I may have to bring an action on
a class, collective, private attorney general, representative or other similar
basis, unless I check this box[.]” Baltazar had checked the box, thereby
opting out of the waiver. She argued the presence of this opt-out provision in
the 2013 arbitration agreement, and absence of any similar provision in the
2019 arbitration agreement, was a factor that made the latter agreement
unconscionable.
Baltazar also argued that to the extent the current arbitration
agreement was enforceable, it did not require arbitration of her individual
PAGA claims. She conceded “the parties agreed ‘to utilize binding individual

6
arbitration as the sole and exclusive means to resolve all disputes that may
arise out of or be related in any way to [her] employment.’ ” However, she
claimed her individual PAGA claims fell within the agreement’s exceptions to
arbitration.
Specifically, she argued the parties had agreed in paragraph 3 of the
agreement “that representative claims were categorically excluded from
arbitration.” Her claims, she asserted, fell within the language of paragraph
2 that excepted from arbitration “claims that are not subject to arbitration
under current law.” And “current law” encompassed Iskanian, which was
controlling California Supreme Court precedent in August 2019 when the
agreement was formed. Because Iskanian then “prohibited PAGA claims
from being compelled into arbitration,” Baltazar argued the parties could not
have intended to require arbitration of her individual PAGA claims.
Finally, to the extent the trial court was inclined to compel any portion
of her PAGA claims to arbitration, Baltazar argued Viking River’s standing
determination was decided as a matter of state law and was therefore not
binding on California courts. She observed that the California Supreme
Court had recently granted review to address the standing question in
Adolph v. Uber Technologies, Inc. (Apr. 11, 2022, G059860) [nonpub. opn.]
[2022 WL 1073583, 2022 Cal.App.Unpub. Lexis 2170], review granted (July
20, 2022, S274671). She asked the court to stay her non-individual PAGA
claim pending the California Supreme Court’s decision in that case.
D. The Trial Court’s Ruling
In November 2022, after an unreported hearing, the trial court issued a
minute order denying Ace Parking’s motion. The court observed that Viking
River held Iskanian’s rule prohibiting wholesale waiver of representative
standing to bring PAGA claims was not preempted by the FAA, and any such

7
waiver therefore remained invalid. The court reasoned Baltazar had brought
suit against Ace Parking “in a representative capacity only,” and that the
arbitration agreement “specifically excludes representative PAGA claims
from the scope of the agreement, stating [in the last sentence of paragraph 3]
that if a ‘representative claim’ under PAGA is found to be unwaivable-which
it is-the parties agree to stay the PAGA claims pending arbitration of the
arbitrable claims.”
DISCUSSION
I.
Relevant Law
A. PAGA
“Before 2004, the [LWDA] was responsible for collecting civil penalties
for labor law violations. The Legislature found, however, that the LWDA
lacked sufficient resources to keep pace with the sheer number and gravity of
offenses. As a solution, PAGA was enacted to empower aggrieved employees
to act as private attorneys general to prosecute and collect civil penalties on
the state’s behalf.” (Nickson v. Shemran, Inc. (2023) 90 Cal.App.5th 121, 127
(Nickson), citing Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).)
Under PAGA, “an ‘aggrieved employee’ may bring a civil action
personally and on behalf of other current or former employees to recover civil
penalties for Labor Code violations. [Citation.] Of the civil penalties
recovered, 75 percent goes to the [LWDA], leaving the remaining 25 percent
for the ‘aggrieved employees.’ ” (Arias, supra, 46 Cal.4th at pp. 980–981,
citing Lab. Code, § 2699, subds. (a), (i).) An employee who brings an action
under PAGA “does so as the proxy or agent of the state’s labor law
enforcement agencies.” (Arias, at p. 986.) “In a lawsuit brought under the
act, the employee plaintiff represents the same legal right and interest as

8
state labor law enforcement agencies—namely, recovery of civil penalties that
otherwise would have been assessed and collected by the [LWDA].” (Ibid.)
B. Iskanian
In Iskanian, the California Supreme Court reached two conclusions
about PAGA actions that are relevant here. First, it held that “an employee’s
right to bring a PAGA action is unwaivable.” (Iskanian, supra, 59 Cal.4th at
p. 383.) A pre-dispute agreement to waive such rights would “disable one of
the primary mechanisms for enforcing the Labor Code” and therefore violated
public policy. (Ibid.) This prohibition on PAGA waivers was not preempted
by the FAA, the Iskanian court reasoned, because “the FAA aims to ensure
an efficient forum for the resolution of private disputes, whereas a PAGA
action is a dispute between an employer and the state Agency.” (Iskanian, at
p. 384.)
Second, the Iskanian court “rejected the employer’s argument that the
particular waiver it drafted should be upheld because it only waived
nonindividual PAGA claims and preserved the employee’s right to arbitrate
individual ones. [Citation.] Appellate courts interpreted this aspect of
Iskanian ‘as prohibiting splitting PAGA claims into individual and
nonindividual components to permit arbitration of the individual claims.’ ”
(Nickson, supra, 90 Cal.App.5th at p. 128.)
C. Viking River
In June 2022, the United States Supreme Court issued its decision in
Viking River, supra, 142 S.Ct. 1906, in which it considered whether the FAA
preempted the Iskanian rules against waiver and splitting of PAGA claims.
Discussing PAGA, the high court observed that the vocabulary used to
describe PAGA actions “tends to use the word ‘representative’ in two distinct
ways[.]” (Viking River, supra, 142 S.Ct. at p. 1916.) “In the first sense,

9
PAGA actions are ‘representative’ in that they are brought by employees
acting as representative—that is, as agents or proxies—of the State.” (Ibid.)
In this sense, “ ‘ “every PAGA action is . . . representative[.]” ’ ” (Ibid.) In the
second sense, “PAGA claims are also called ‘representative’ when they are
predicated on code violations sustained by other employees.” (Ibid.) “[W]hen
the word ‘representative’ is used in the second way, it makes sense to
distinguish ‘individual’ PAGA claims, which are premised on Labor Code
violations actually sustained by the plaintiff, from ‘representative’ . . . PAGA
claims arising out of events involving other employees.” (Ibid.) The Court
used the terms “individual” and “non-individual” to refer to the two types of
PAGA claims. (See id. at p. 1924.)
Viking River held that Iskanian’s prohibition on the waiver of PAGA
claims was not preempted by the FAA. The FAA, it explained, is concerned
with enforcing the parties’ choice to use arbitration as the forum and
procedure for resolving their disputes, not with the substantive rights and
remedies they seek to vindicate. (Viking River, supra, 142 S.Ct. at p. 1919.)
“Thus, even after Viking River, a contractual waiver of the right to prosecute
PAGA claims is unenforceable as against California public policy.” (Nickson,
supra, 90 Cal.App.5th at p. 129.)
Iskanian’s secondary rule prohibiting the splitting of PAGA claims did
not survive the high court’s scrutiny. This rule was preempted by the FAA,
the Court held, because it “circumscribes the freedom of parties to determine
‘the issues subject to arbitration’ and ‘the rules by which they will
arbitrate[.]’ ” (Viking River, supra, 142 S.Ct. at pp. 1923, 1924.) More
specifically, the rule conditions enforcement of an agreement to arbitrate
individual PAGA claims “on the availability of a procedural mechanism . . . to
expand the scope of the arbitration by introducing [non-individual PAGA]

10
claims that the parties did not jointly agree to arbitrate.” (Id. at p. 1923.)
The effect of the rule was to force the parties to such an agreement to forego
arbitration of PAGA claims entirely, a result that was incompatible with the
FAA. (Id. at p. 1924.)
Turning to the specific arbitration agreement at issue, the Supreme
Court observed that it “purported to waive ‘representative’ PAGA claims.”
(Viking River, supra, 142 S.Ct. at p. 1924.) This waiver was unenforceable “if
construed as a wholesale waiver of PAGA claims.” (Ibid.) But there was a
severability clause in the agreement providing that “if the waiver provision is
invalid in some respect, any ‘portion’ of the waiver that remains valid must
still be ‘enforced in arbitration.’ ” (Id. at p. 1925.) Pursuant to this
severability clause, Viking River Cruises was “entitled to enforce . . .
arbitration of [the plaintiff’s] individual PAGA claim.” (Ibid.)
As for the non-individual PAGA claims that remained, the Supreme
Court held they should be dismissed for lack of statutory standing. (Viking
River, supra, 142 S.Ct. at p. 1925.) It reasoned that “[u]nder PAGA’s
standing requirement, a plaintiff can maintain non-individual PAGA claims
in an action only by virtue of also maintaining an individual claim in that
action. [Citation.] When an employee’s own dispute is pared away from a
PAGA action, the employee is no different from a member of the general
public, and PAGA does not allow such persons to maintain suit.” (Ibid.)
Justice Sotomayor wrote separately to point out that if the majority’s
interpretation of the state law standing issue was wrong, “California courts,
in an appropriate case, will have the last word.” (Id. at p. 1925 (conc. opn. of
Sotomayor, J.).)

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D. Adolph
In July 2023, while this appeal was pending, the California Supreme
Court issued its decision in Adolph v. Uber Technologies, Inc. (2023) 14

Cal.5th 1104 (Adolph).2 On the question of whether an aggrieved employee
who has been compelled to arbitrate individual PAGA claims maintains
statutory standing to pursue non-individual PAGA claims in court, the
Adolph court held the answer is “yes.” (Id. at p. 1114.) Adolph explained
PAGA standing has two requirements: the “plaintiff must be an ‘aggrieved
employee’—that is, (1) ‘someone “who was employed by the alleged violator” ’
and (2) ‘ “against whom one or more of the alleged violations was
committed.” ’ ” (Ibid.) When a plaintiff brings an action asserting individual

and non-individual PAGA claims,3 “an order compelling arbitration of the
individual claims does not strip the plaintiff of standing as an aggrieved
employee to litigate claims on behalf of other employees under PAGA.”
(Ibid.) This is because “[a]rbitrating a PAGA plaintiff’s individual claim does
not nullify the fact of the violation or extinguish the plaintiff’s status as an
aggrieved employee[.]” (Id. at p. 1121.)
Thus, a PAGA plaintiff who is compelled to arbitrate his or her
individual PAGA claims maintains standing to assert the remaining non-
individual PAGA claims in court. (Adolph, supra, 14 Cal.5th at p. 1123.) As
a result, dismissal of the non-individual PAGA claims is not required when

2 On August 2, 2023, at our direction, the parties submitted
supplemental letter briefs addressing the effect of Adolph on this appeal.

3 In Adolph, the California Supreme Court “use[d] the terms ‘individual’
and ‘non-individual’ [PAGA] claims in accordance with the high court’s usage
in Viking River.” (Adolph, supra, 14 Cal.5th at p. 1114.)

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arbitration of individual PAGA claims is compelled. (Ibid.) Instead, “the
trial court may exercise its discretion to stay the non-individual claims
pending the outcome of the arbitration pursuant to section 1281.4 of the Code
of Civil Procedure.” (Ibid.)
E. Terminology
This appeal requires us to interpret an arbitration agreement that uses
the words “representative” and “individual” in certain key places. Because
we have to determine whether and to what extent these terms apply to the
present PAGA action, we are faced with the same fertile ground for confusion
as the high court in Viking River.
Ace Parking suggests that instead of “individual PAGA claim” and
“non-individual PAGA claim” we should use the labels “Type A” and “Type
O.” These labels were proposed in Galarsa v. Dolgen California, LLC (2023)
88 Cal.App.5th 639, 648. The Galarsa court adopted the label “Type A” to
mean individual PAGA claims (“A” stands for “arbitrable”). The Galarsa
court found “Type A” to be a logical designation because this type of PAGA
claim “will be ordered to arbitration if it is covered by an arbitration
agreement subject to the FAA.” (Id. at pp. 648‒649.) “Type O” claims are
non-individual PAGA claims; the “O” means “other,” as in the “claim involves
a Labor Code violation suffered by an employee other than the plaintiff.” (Id.
at p. 649.)
We appreciate the clarity these labels stand to provide, however, we
decline to use them here. The Adolph court, despite being aware of Galarsa
(see Adolph, supra, 14 Cal.5th at pp. 1121–122), did not adopt its proposed
nomenclature. Instead, to stay consistent with Adolph and Viking River, we
will use “individual PAGA claims” to refer to the component of Baltazar’s
PAGA action that is based on Labor Code violations she allegedly suffered,

13
and “non-individual PAGA claims” to refer to the component of her PAGA
action that is based on Labor Code violations allegedly suffered by other Ace
Parking employees.
Although all PAGA claims are “representative” in the sense that “they
are brought by employees acting . . . as agents or proxies . . . of the State”
(Viking River, supra, 142 S.Ct. at p. 1916), using the word “representative” to
denote this characteristic of PAGA claims is certain to cause confusion when
we analyze the parties’ agreement. So instead of “representative,” we will
use words like “agent” or “private attorney general” when we refer to this
aspect of Baltazar’s PAGA claim. And to distinguish claims or actions a
plaintiff brings in her capacity as an agent of the state from claims or actions
she brings in her personal capacity, we will use words like “personal” or
“personal capacity” (instead of “individual” or “individual capacity”) when we
refer to the latter type of claim or action.
II.
Contentions on Appeal
Ace Parking contends the trial court erred by declining to compel
Baltazar to arbitrate her individual PAGA claims. It believes the court was
misled by Baltazar’s complaint, which “artfully” alleged Baltazar was
maintaining the action in her “representative capacity.” It contends
Baltazar’s individual PAGA claims (which it refers to as “Type A” claims) are
within the scope of the parties’ arbitration agreement and under Viking River
must be ordered to arbitration. To the extent we find the agreement to be
ambiguous, Ace Parking urges us to resolve any doubts about the scope of
arbitrable disputes in favor of arbitration.
Baltazar disputes that she has not sued “in her representative
capacity”; she claims instead that she brought suit “solely in her

14
representative capacity.” She contends her individual and non-individual
PAGA claims are not among the disputes covered by the parties’ arbitration
agreement, because they fall within exceptions to arbitration set forth in
paragraph 2 (excluding claims “not subject to arbitration under current law”)
and paragraph 3 (providing that if a “representative claim” under PAGA is
“found to be unwaivable” and “is pursued in court, . . . any such PAGA claim
will be severed and stayed pending resolution of claims that are arbitrable”).
And to the extent we find the arbitration agreement to be uncertain, she
argues any ambiguity must be construed against Ace Parking—and against

arbitration—pursuant to Civil Code section 1654.4
As we have mentioned, Baltazar raised an unconscionability defense in
the trial court. On appeal, however, she has not reasserted this defense. The
substantive arguments in her respondent’s brief on appeal only address the
interpretation of the arbitration agreement and are devoid of any claim of
unconscionability.
Indeed the word “unconscionable” appears in her brief just once, in a
footnote within the procedural background section of her brief. In this
footnote, she acknowledges that she argued in the trial court “the Agreement
was procedurally and substantively unconscionable.” She then states:
“Because the trial court found that Ms. Baltazar’s claim did not fall within
the scope of the agreement, it did not address this argument. However, as set
forth below, this Court may affirm the trial court’s order on the basis of any
valid legal theory, including a basis that was not invoked at the time.” She

4 “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.” (Civ. Code, § 1654.)

15
does not argue unconscionability in any other section of her brief, either
before or after the footnote.
For several reasons, we do not regard this footnoted assertion as a
reinvocation of her unconscionability defense. First, referring to a defense in
a footnote of the procedural background section of a respondent’s brief is not
an adequate means of raising an appellate argument. “An appellant cannot
bury a substantive legal argument in a footnote and hope to avoid waiver of
that argument.” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 419;
see also Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 [“Footnotes are not
the appropriate vehicle for stating contentions on appeal.”].) Second,
Baltazar’s suggestion that we “may affirm” on the basis of any valid theory
does not amount to a cognizable or adequately developed argument. Our
state’s rules of appellate practice require every appellate brief to “[s]tate each
point under a separate heading or subheading summarizing the point, and
support each point by argument and, if possible, by citation of authority.”
(Cal. Rules of Court, rule 8.204(a)(1)(B).)
Baltazar’s footnoted assertion meets none of these requirements. It is
frequently said that appellate courts “may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or fail to
disclose the reasoning by which the appellant reached the conclusions he
wants us to adopt.’ ” (See, e.g., United Grand Corp. v. Malibu Hillbillies,
LLC (2019) 36 Cal.App.5th 142, 153.) But here, Baltazar has not made so
much as even a conclusory argument; she has merely referenced a position
she took in the trial court and then has alluded to the possibility that we
might consider the merits of this position on our own. We decline to do so.
An appellate court is “not required . . . to make arguments for parties.”
(Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) As a result of

16
these briefing deficiencies, Baltazar has forfeited reliance on
unconscionability as a basis for affirming the trial court’s order.
Further, Baltazar’s failure to provide any appellate argument at all on
the merits of her unconscionability defense, much less an argument tailored
to the applicable standard of review, operates as a concession the defense
lacks merit. (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc.
(2011) 196 Cal.App.4th 456, 465 [“ ‘Arguments should be tailored according to
the applicable standard of appellate review.’ [Citation.] Failure to
acknowledge the proper scope of review is a concession of a lack of merit.”];
Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699–700
[“When an issue is unsupported by pertinent or cognizable legal argument it
may be deemed abandoned”].)
III.
Additional Legal Principles
A. Standard of Review and Relevant Contract Law
“On petition of a party to an arbitration agreement alleging the
existence of a written agreement to arbitrate a controversy and that a party
to the agreement refuses to arbitrate that controversy, the court shall order
the petitioner and the respondent to arbitrate the controversy if it determines
that an agreement to arbitrate the controversy exists[.]” (Code Civ. Proc.,
§ 1281.2.) “In a petition to compel arbitration, ‘the moving party, in essence,
requests specific performance of a contractual agreement to arbitrate the
controversy[.] The trial court must determine in advance whether there is a
duty to arbitrate the controversy[.] This determination “necessarily requires
the court to examine and, to a limited extent, construe the underlying
agreement.” ’ ” (Gravillis v. Coldwell Banker Residential Brokerage Co.
(2006) 143 Cal.App.4th 761, 770–771.)

17
 “Arbitration is strictly a matter of consent. A party cannot be required
to arbitrate a dispute that he or she has not agreed to submit to arbitration.”
(Duran v. EmployBridge Holding Co. (2023) 92 Cal.App.5th 59, 65 (Duran).)
“ ‘To determine whether a contractual arbitration clause requires arbitration
of a particular controversy, the controversy is first identified and the issue is
whether that controversy is within the scope of the contractual arbitration
clause.’ ” (Titolo v. Cano (2007) 157 Cal.App.4th 310, 316 (Titolo).) “Whether
the parties agreed to arbitrate all or a portion of ‘the present controversy
turns on the language of the arbitration clause.’ ” (Duran, at p. 65., quoting
EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 (EFund
Capital Partners).) “ ‘[T]he terms of the specific arbitration clause under
consideration must reasonably cover the dispute as to which arbitration is
requested.’ ” (Titolo, at p. 317.) Where, as here, “the language of the
arbitration provision is not in dispute and no conflicting extrinsic evidence is
introduced, the trial court’s decision as to arbitrability is reviewed de novo.”
(Duran, at p. 65.)
To determine whether the parties agreed to arbitrate Baltazar’s
individual PAGA claims, we apply general principles of California contract
law. (Vaughn v. Tesla, Inc. (2023) 87 Cal.App.5th 208, 219 (Vaughn).)
“ ‘ “ ‘The fundamental rules of contract interpretation are based on the
premise that the interpretation of a contract must give effect to the “mutual
intention” of the parties. “Under statutory rules of contract interpretation,
the mutual intention of the parties at the time the contract is formed governs
interpretation. [Citation.] Such intent is to be inferred, if possible, solely
from the written provisions of the contract. [Citation.] The ‘clear and
explicit’ meaning of these provisions, interpreted in their ‘ordinary and
popular sense,’ unless ‘used by the parties in a technical sense or a special

18
meaning is given to them by usage’ [citation], controls judicial interpretation.
[Citation.]” [Citations.] A [contract] provision will be considered ambiguous
when it is capable of two or more constructions, both of which are reasonable.
[Citation.] But language in a contract must be interpreted as a whole, and in
the circumstances of the case, and cannot be found to be ambiguous in the
abstract.’ ” ’ ” (EFund Capital Partners, supra, 150 Cal.App.4th at p. 1321,
quoting TRB Investments, Inc. v. Fireman’s Fund Ins. Co. (2006) 40 Cal.4th
19, 27.)
B. Law Pertaining to the Resolution of Ambiguity in an Arbitration
Agreement Governed by the FAA
The parties dispute what rule we must apply to the extent we find the
parties’ agreement to be ambiguous after exhausting available methods of
contract interpretation.
Ace Parking contends we must resolve any contractual ambiguity in
favor of compelling arbitration. It relies on Moses H. Cone Memorial
Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1 (Moses H. Cone), in which
the United States Supreme Court stated, “The Arbitration Act establishes
that, as a matter of federal law, any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration, whether the problem at
hand is the construction of the contract language itself or an allegation of
waiver, delay, or a like defense to arbitrability.” (Id. at pp. 24‒25; accord,
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 626;
Mastrobuono v. Shearson Lehman Hutton (1995) 514 U.S. 52, 62, fn. 8; see
also AT&T Techs. v. Communs. Workers of America (1986) 475 U.S. 643, 650
(AT&T Techs.) [“[I]t has been established that where the contract contains an
arbitration clause, there is a presumption of arbitrability in the sense that
‘[an] order to arbitrate the particular grievance should not be denied unless it
may be said with positive assurance that the arbitration clause is not

19
susceptible of an interpretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage.”]; Granite Rock Co. v. Internat.
Brotherhood of Teamsters (2010) 561 U.S. 287, 298 (Granite Rock).)
California law incorporates the same interpretative rule based on our state’s
strong public policy of favoring arbitration. (See Ericksen, Arbuthnot,
McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323
[“[i]n this state. . . [citation], doubts concerning the scope of arbitrable issues
are to be resolved in favor of arbitration”]; Duran, supra, 92 Cal.App.5th at
pp. 65–66 [“California has a strong public policy favoring arbitration and, as
a result, ambiguities or doubts about the scope of the arbitration provision
should be resolved in favor of arbitration”]; accord Ahern v. Asset
Management Consultants, Inc. (2022) 74 Cal.App.5th 675, 687.)
Baltazar, on the other hand, asserts mutual consent is an element of
any contract, “ ‘[a]rbitration is strictly “a matter of consent” ’ ” (Viking River,
supra, 142 S.Ct. at p. 1918, quoting Granite Rock, supra, 561 U.S. at p. 299)
and “[t]here is no public policy favoring arbitration of disputes which the
parties have not agreed to arbitrate” (Engineers & Architects Assn. v.
Community Development Dept. (1994) 30 Cal.App.4th 644, 653). To the
extent the agreement is ambiguous with respect to the scope of disputes it
requires to be arbitrated, she argues we must apply Civil Code section 1654
(section 1654). As we have noted, section 1654 provides that “[i]n cases of
uncertainty not removed [after exhausting other methods of interpretation
set forth in Civil Code sections 1635 to 1653], the language of a contract
should be interpreted most strongly against the party who caused the
uncertainty to exist.” This provision codifies the common law principle of
interpretation known as contra proferentem. (See, e.g., Mitchell v. Exhibition
Foods (1986) 184 Cal.App.3d 1033, 1042 [using contra proferentem as a

20
synonym for the rule embodied in section 1654].) Baltazar argues section
1654 requires us to construe any ambiguity in the arbitration agreement
against Ace Parking (and therefore against compelling arbitration) because
Ace Parking drafted the agreement.
As previously noted, the parties’ agreement in this case “invoke[s] the
coverage of the [FAA].” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th
233, 250 (Sandquist).) Because the parties rely on competing federal and
state rules of interpretation, their dispute presents a question of federal
preemption. We must determine whether, to the extent there is a conflict
between the federal rule for resolving ambiguity in an arbitration agreement
and state law of contract interpretation, the state doctrine of contra
proferentem (which here would require us to construe the agreement against
arbitration) must yield to the federal rule requiring us to resolve doubts in
favor of arbitration.
In Sandquist, the California Supreme Court relied on section 1654 as
well as the federal and state policies favoring arbitration to construe an
ambiguous arbitration agreement in favor of arbitration. The question in
Sandquist was whether a court or an arbitrator should decide in the first
instance whether the parties’ agreement permitted arbitration on a classwide
basis. (Sandquist, supra, 1 Cal.5th at p. 241.) The Sandquist court, after
analyzing the relevant arbitration clauses, found them “by no means
conclusive” with respect to the “ ‘who decides’ ” question. (Id. at p. 246.)
Sandquist went on to find two “long-established interpretive principles”
dispositive of the issue. (Id. at p. 247.) “First, under state law as under
federal law, when the allocation of a matter to arbitration or the courts is
uncertain, we resolve all doubts in favor of arbitration.” (Ibid.) This
presumption “tip[ped] the scales in favor of allocating the class arbitration

21
availability question to the arbitrator.” (Ibid.) Second, under section 1654,
“ambiguities in written agreements are to be construed against their
drafters.” (Id. at pp. 247‒248.) Our high court stated this “general principle
of contract interpretation applies equally to the construction of arbitration
provisions. [Citations.] Where the drafter of a form contract has prepared an
arbitration provision whose application to a particular dispute is uncertain,
ordinary contract principles require that the provision be construed against
the drafter’s interpretation and in favor of the nondrafter’s interpretation.”
(Id. at p. 248.) It concluded, “as a matter of state contract law,” that “the
parties’ arbitration provisions allocate the decision on the availability of class
arbitration to the arbitrator, rather than reserving it for a court.” (Ibid.)
Because the parties’ agreement “invoke[d] the coverage of the [FAA],”
the Court then considered whether the state laws that compelled this result
conflicted with policies underlying the FAA. (Sandquist, supra, 1 Cal.5th at
pp. 250‒260.) It answered this question in the negative, reasoning, in part,
that its interpretation of the agreement was consistent with the “firmly
established” federal principle “ ‘that, as a matter of federal law, any doubts
concerning the scope of arbitrable issues should be resolved in favor of
arbitration.’ ” (Id. at p. 255, quoting Moses H. Cone, supra, 460 U.S. at
pp. 24‒25.)
In Sandquist, contra proferentem and the federal rule for resolving
doubts about the scope of arbitrable issues pointed to the same outcome,
making it unclear which must yield in case of a conflict. In Lamps Plus, Inc.
v. Varela (2019) 587 U.S.___ [139 S.Ct. 1407] (Lamps Plus), the United States
Supreme Court addressed what must occur when state contract principles
and federal arbitration law are not aligned. There, the high court held that
California’s contra proferentem rule is preempted to the extent it conflicts

22
with federal policies underlying the FAA. In Lamps Plus, an employee
brought claims against his employer on behalf of a putative class of
employees whose tax information had been compromised in a data breach.
(Id. at p. 1413.) The employee and employer were parties to an arbitration
agreement governed by the FAA. (Ibid.) The Ninth Circuit, applying
California contract law, found the agreement “ambiguous on the availability
of class arbitration.” (Id. at p. 1414.) Relying on Sandquist and the rule of
contra proferentem, the Ninth Circuit construed the ambiguity against the
employer because it had drafted the arbitration agreement, and held that the
agreement authorized arbitration on a classwide basis rather than on an
individual basis as sought by the employer. (Id. at p. 1413.)
The Supreme Court reversed. (Lamps Plus, supra, 139 S.Ct. at
pp. 1417‒1419.) Deferring to the Ninth Circuit’s determination that the
arbitration agreement was ambiguous, it focused on the appellate court’s
reliance on California’s contract interpretation doctrine of contra proferentem
to resolve that ambiguity in favor of class arbitration. The high court held
applying contra proferentem to require class arbitration was inconsistent with
federal policies favoring individual arbitration. (Ibid.)
The Lamps Plus court observed that while “courts may ordinarily
[construe the terms of 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.” (Lamps Plus, supra, 139 S.Ct. at p. 1415.) And a rule
of “ ‘fundamental importance’ under the FAA” is that “arbitration ‘is a matter
of consent, not coercion.’ ” (Ibid.) Also, an “individualized form of arbitration
[was] envisioned by the FAA,” in which “ ‘parties forgo the procedural rigor
and appellate review of the courts in order to realize the benefits of private

23
dispute resolution: lower costs, greater efficiency and speed, and the ability
to choose expert adjudicators to resolve specialized disputes.’ ” (Id. at
p. 1416.) “Class arbitration lacks those benefits” and is “ ‘crucial[ly]
differen[t]’ ” from individual arbitration, the high court explained, because it
“ ‘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.’ ” (Ibid.) Due to these differences,
the Supreme Court explained, “courts may not infer consent to participate in
class arbitration absent an affirmative ‘contractual basis for concluding that
the party agreed to do so.’ ” (Ibid.)
Turning to the state doctrine of contra proferentem, the Supreme Court
characterized it as a principle that “resolves the ambiguity [in an agreement]
against the drafter based on . . . equitable considerations about the parties’
relative bargaining strength.” (Lamps Plus, supra, 139 S.Ct. at p. 1417.) The
doctrine rests on public policy considerations, the high court explained, and
does not help “interpret the meaning of a term, and thereby uncover the
intent of the parties.” (Ibid.) As applied by the Ninth Circuit, the doctrine
was inconsistent with “ ‘the foundational FAA principle that arbitration is a
matter of consent’ ” as well as the corollary rule that class arbitration must
be based on consent and not “ ‘manufactured by [state law].’ ” (Id. at
pp. 1417‒1418].)
The Lamps Plus majority claimed its decision was not a “watershed.”
(Lamps Plus, supra, 139 S.Ct. at p. 1418.) It observed that in earlier cases,
including Moses H. Cone, supra, 460 U.S. 1, it had “repeatedly held that
ambiguities about the scope of an arbitration agreement must be resolved in
favor of arbitration.” (Lamps Plus, at pp. 1418‒1419.) The majority stated:
“In those cases, we did not seek to resolve the ambiguity by asking who

24
drafted the agreement. Instead, we held that the FAA itself provided the
rule. As in those cases, the FAA provides the default rule for resolving
ambiguity here.” (Id. at p. 1419.)
California appellate courts have followed Lamps Plus and have
declined to apply contra proferentem to construe ambiguities in employer-
drafted arbitration agreements governed by the FAA. (See, e.g., Vaughn,
supra, 87 Cal.App.5th at p. 218, fn. 5 [observing that while Sandquist held
“ ‘any ambiguities [in an arbitration agreement drafted by an employer] must
be construed against the drafting employer and in favor of the nondrafting
employee,’ ” “Lamps Plus . . . requires a different rule that we follow”];
Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 663‒668
[trial court erred by construing in favor of the nondrafting employee an
arbitration agreement that was ambiguous as to whether arbitration was to
be binding or nonbinding; Lamps Plus “controls” this issue and compels the
conclusion the employee “must submit his claims to binding arbitration”].)
We must do the same. (Karuk Tribe of Northern California v. California
Regional Water Quality Control Bd., North Coast Region (2010) 183
Cal.App.4th 330, 352 [state courts are bound by decisions of the United
States Supreme Court in the construction and application of federal law].)
We note, however, that the question in Lamps Plus was whether class
arbitration, which was disfavored as a matter of federal policy, could be
ordered. Here, there is no comparable federal policy that disfavors
arbitration of an individual PAGA claim. Instead, as Viking River held,
arbitration of such a claim is not inconsistent with “the norm of bilateral
arbitration as our precedents conceive of it.” (Viking River, supra, 142 S.Ct.
at p. 1921.) The federal policies implicated here are the policies that
“arbitration ‘is a matter of consent, not coercion’ ” (Lamps Plus, supra, 139

25
S.Ct. at p. 1415) and “ambiguities about the scope of an arbitration
agreement must be resolved in favor of arbitration” (id. at pp. 1418‒1419).
Lamps Plus did not explain how to implement these seemingly conflicting
policies at the same time.
We turn to Granite Rock, one of the cases relied on by Baltazar, in
which the Supreme Court explained how the two policies are integrated in a
case that required it to explore the outer bounds of the federal policy favoring
arbitration. There, a local labor union (Local) argued an arbitration clause in
a collective bargaining agreement (CBA) should be interpreted to require
arbitration of a disputed issue as to the date the CBA was validly ratified.
(Granite Rock, supra, 561 U.S. at pp. 291‒292, 298.) Local claimed the
breadth of the federal policy favoring arbitration compelled the conclusion
that the formation-date question was arbitrable. (Id. at pp. 298‒299.)
The Granite Rock court disagreed. “Our cases invoking the federal
‘policy favoring arbitration’ of commercial and labor disputes . . . recognize
that, except where ‘the parties clearly and unmistakably provide otherwise,’
[citation], it is ‘the court’s duty to interpret the agreement and to determine
whether the parties intended to arbitrate grievances concerning’ a particular
matter, [citation]. They then discharge this duty by: (1) applying the
presumption of arbitrability only where a validly formed and enforceable
arbitration agreement is ambiguous about whether it covers the dispute at
hand; and (2) adhering to the presumption and ordering arbitration only
where the presumption is not rebutted.” (Granite Rock, supra, 561 U.S. at
p. 301.) In the case of the disputed issue regarding the date the CBA was
ratified, two issues prevented the presumption of arbitrability from
attaching. First, the issue called into question whether there was a CBA in
place when the suit was filed, an issue that was “central to Local’s arbitration

26
demand.” (Id. at pp. 303‒306.) Second, the arbitration clause in the
agreement was not ambiguous with respect to whether it covered Local’s
formation-date defense. The provision in question, which was “narrow,”
called for arbitration of “ ‘[a]ll disputes arising under’ ” the CBA, was “not
fairly read to include a dispute about when the CBA came into existence.”
(Id. at pp. 307, 308.) The agreement’s remaining provisions further restricted
the scope of arbitration and “all but foreclose[d]” reading the provision to
cover Local’s formation-date defense. (Id. at p. 307.) For these reasons, the
Granite Rock court explained, “[t]he dispute here . . . falls outside the scope of
the parties’ arbitration clause on grounds the presumption favoring
arbitration cannot cure.” (Ibid.)
Under the foregoing United States Supreme Court cases, we interpret
the parties’ agreement according to state law. If, after applying state law
rules of contract interpretation, we find the agreement to be ambiguous with
regard to “whether it covers the dispute at hand”—Baltazar’s individual
PAGA claims—we must “apply[ ] the presumption of arbitrability” (Granite
Rock, supra, 561 U.S. at p. 301) and resolve “any doubts concerning the scope
of arbitrable issues . . . in favor of arbitration” (Moses H. Cone, supra, 460
U.S. at pp. 24‒25). We then “adher[e] to the presumption and order[ ]
arbitration only where the presumption is not rebutted.” (Granite Rock, at
p. 301.) Only if we can say “ ‘with positive assurance’ ” that the agreement
“ ‘is not susceptible of an interpretation that covers the asserted dispute’ ”
can an order compelling arbitration be denied. (AT&T Techs., supra, 475
U.S. at p. 650.) And to the extent contra proferentem would require a
different result than the foregoing interpretative rules, which reflect the
federal policies at stake in this case, we must follow the federal rule rather

27
than the state rule. With these legal principles in mind, we address the
parties’ dispute.
IV.
The Trial Court Erred in Denying Ace Parking’s Motion to Compel Arbitration
A. Baltazar’s Complaint for Civil Penalties Under PAGA Is
“Representative” in Both Senses of the Word
To determine whether the parties’ agreement requires arbitration of
the claims in Baltazar’s complaint, we first resolve the parties’ dispute as to
whether, and to what extent, the claims in her complaint are properly
described as either “representative” or “individual.”
Baltazar’s complaint contains a single cause of action under PAGA.
She alleges, pursuant to PAGA, violations of the Labor Code suffered by
herself as well as other Ace Parking employees. The Labor Code violations
asserted within her PAGA cause of action are therefore “representative” in
two ways. First, they are “representative” in that she is asserting them in
her capacity as a private attorney general, representing the interests of the
state. (See Viking River, supra, 142 S.Ct. at p. 1916 [“In the first sense,
PAGA actions are ‘representative’ in that they are brought by employees
acting as representatives—that is, as agents or proxies—of the State.”].)
Contrary to Ace Parking’s suggestion the trial court was misled by artful
pleading, there is nothing improper about Baltazar styling her complaint as a
representative action, or alleging within the complaint that she is
maintaining it in her “representative capacity.” These are true and correct
uses of the term “representative” to describe the action and the role in which
she is maintaining it. (See ibid.)
Second, Baltazar’s claims are “representative” to the extent they rely
on alleged Labor Code violations sustained by employees other than herself
and seek recovery of civil penalties as a result of those violations. (See Viking

28
River, supra, 142 S.Ct. at p. 1916 [“PAGA claims are also called
‘representative’ when they are predicated on code violations sustained by
other employees”].) These are the claims we are referring to as her “non-
individual PAGA claims.” And her claims are also “individual” to the extent
they rely on, and seek civil penalties as a result of, Labor Code violations she
claims to have suffered personally. These are the claims we are referring to
as her “individual PAGA claims.”
Although in her response brief on appeal, Baltazar appears to dispute
that her complaint includes “individual claims,” an examination of her
arguments shows she is using this phrase in another, distinct way: to refer to
claims brought in her personal capacity, rather than in her capacity as a
private attorney general. She states, for example, that she does not “seek to
recover damages or statutory penalties.” This is a reference to the remedies
available to an employee who does not sue under PAGA. In other words,
PAGA does not authorize recovery of damages or statutory penalties. “ ‘The
civil penalties recovered on behalf of the state under the PAGA are distinct
from the statutory damages to which employees may be entitled in their
individual capacities.’ ” (Betancourt v. Prudential Overall Supply (2017) 9
Cal.App.5th 439, 445, quoting Iskanian, supra, 59 Cal.4th at p. 381.) By
stating she has not brought any “individual claims,” Baltazar is essentially
saying that all of the claims in her complaint are claims for civil penalties
under PAGA. But this has never been in question.
Thus, there is no legitimate dispute here that Baltazar’s PAGA action
against Ace Parking is “representative” in that (1) Baltazar is maintaining it
as an agent acting on behalf of the state (in other words, in that it has been
brought under PAGA), and (2) it seeks, in part, to redress the rights of
employees other than Baltazar. The more difficult question is the one we

29
consider next—whether, and to what extent, Baltazar’s individual PAGA
claims fall within the scope of the disputes the agreement requires to be
arbitrated.
B. Interpretation of the Arbitration Agreement
1. Baltazar’s Individual PAGA Claims Plainly Fall Within the
Broad Scope of the Parties’ Agreement to Arbitrate All Disputes
That “[A]rise out of” and Are “[R]elated . . . to” Her Employment
Ace Parking contends Baltazar’s individual PAGA claims are
reasonably covered by the provision in the parties’ agreement obligating the
parties “to utilize binding individual arbitration as the sole and exclusive
means to resolve all disputes that may arise out of or be related in any way to
[Baltazar’s] employment.” Baltazar does not expressly dispute this position,
arguing instead that her individual PAGA claims are excluded from
arbitration by virtue of carve-outs created by subsequent provisions within
the agreement.
We agree with Ace Parking’s assertion, and Baltazar’s implied
concession, that the quoted provision encompasses Baltazar’s individual
PAGA claims. “[U]se of the phrase ‘arising from or relating to’ signifies [an]
[a]rbitration [p]rovision is a ‘broad provision.’ ” (Vaughn, supra, 87
Cal.App.5th at p. 220, quoting Khalatian v. Prime Time Shuttle, Inc. (2015)
237 Cal.App.4th 651, 659.) The phrase “ ‘relat[ed] to’ ” “acquires meaning
from the subjects being related.” (Vaughn, at p. 221.) To determine whether
Baltazar’s individual PAGA claims are embraced by this language, we need
only examine whether they “arise out of or [are] related in any way to” her
employment. It is self-evident that they are. As we have discussed,
Baltazar’s individual PAGA claims arise from alleged Labor Code violations
she personally suffered during her seven-year tenure as an Ace Parking
employee. The obligations she seeks to enforce are obligations Ace Parking

30
would not have owed her if it were not for her former status as its employee.
Her individual PAGA claims are not just “related to” but are inextricably
intertwined with her employment with Ace Parking. As a result, this
provision clearly encompasses her individual PAGA claims.
2. The Exception in Paragraph 2 for Claims Not Subject to
Arbitration Under “[C]urrent [L]aw” Is Ambiguous as to Whether
It Encompasses Baltazar’s Individual PAGA Claims
In opposing arbitration, Baltazar relies heavily on the provision in
paragraph 2 of the agreement stating, “The only exceptions to binding
arbitration shall be for claims arising under the National Labor Relations Act
[(NLRA)] which are brought before the National Labor Relations Board
[(NLRB)], claims for medical and disability benefits under the California
Workers’ Compensation Act [(WCA)], Employment Development Department
[(EDD)] claims, or other claims that are not subject to arbitration under
current law.” (Italics added.)
Baltazar contends the italicized language expressly excludes all PAGA
claims, including individual PAGA claims, from the scope of the disputes
subject to arbitration. She observes that when she signed the agreement in
August 2019, “Iskanian was ‘current law,’ ” and under Iskanian, “an
employee could not waive the right to bring a PAGA action nor could such an
action be bifurcated into ‘individual’ and ‘non-individual’ parts.” She
contends the phrase “current law” must mean the law in existence when she
signed the agreement, because paragraph 2 of the agreement “is largely
written in the present tense.” She contrasts the phrase “current law” in
paragraph 2 with the phrase “applicable law” in paragraph 3, and contends
the two phrases, being worded differently, must have different meanings. In
her view, paragraph 3 “is largely written in the future tense” and is thus
“clearly intended to refer to the law that applies at the time a dispute is

31
presented for adjudication”; therefore, “current law” as used in paragraph 2
must refer to an earlier time frame, namely, the date the agreement was
signed.
We agree with Baltazar’s premise that because the parties’ arbitration
agreement was formed in the present but anticipated future enforcement, the
word “current” in the phrase “current law” can reasonably be taken to refer to
either of those two time frames. Baltazar’s argument also introduces the
question whether “law” means statutes, or whether the term incorporates
existing judicial decisions. Because the phrase “current law” is reasonably
susceptible of two or more meanings, it is ambiguous. (In re Tobacco Cases I
(2010) 186 Cal.App.4th 42, 48.)
However, Baltazar’s arguments do not persuade us that “current law”
is an unambiguous reference to the law in existence when she entered into
the agreement. To the extent she contends the surrounding text “is largely
written in the present tense,” we do not agree with her. The provision she is
relying upon actually begins by stating “[t]he only exceptions to binding
arbitration shall be . . . .” (Italics added.) The word “shall” in the phrase
“shall be” is “[u]sed to indicate simple futurity[.]” (American Heritage Dict.
(2d. college ed. 1985) p. 1125, col. 2.) Although the provision then returns to
the present tense when it states “or other claims that are not subject to
arbitration under current law,” it is not clear which time frame the present-
tense phrase “are not” is meant to denote. (Italics added.) For example, one
could say, “the only exceptions to taking the final exam shall be for students
who are sick.” The “are” in this context would clearly refer to the future test-
taking, not the present discussion of it. The adjacent verb tenses do not
clearly establish that the “current” in “current law” is meant to denote the
time frame when the agreement was formed.

32
 Baltazar also relies on the “meaningful-variation” canon of
interpretation, but we do not find her application of the canon to be
illuminating. The meaningful-variation canon provides that “ ‘[w]here [a]
document has used one term in one place, and a materially different term in
another, the presumption is that the different term denotes a different idea.’ ”
(Southwest Airlines Co. v. Saxon (2022) 142 S.Ct. 1783, 1789, parenthetically
quoting A. Scalia & B. Garner, Reading Law 170 (2012).) Baltazar observes
that whereas the exception she is relying on uses the phrase “current law,”
the last sentence of paragraph 3 of the agreement uses the phrase “applicable
law.” She contends that “current law” must have a different meaning and
denote a different time frame from “applicable law.” She further contends
that because “applicable law” as used in paragraph 3 is clearly referring to
the stage when the agreement is enforced, “current law” must be interpreted
to refer to the time when the agreement was formed.
The difficulty we have with Baltazar’s reliance on the meaningful-
variation canon is that we do not discern a meaningful difference between the
phrases “current law” and “applicable law.” A law is not “applicable” unless
it is also “current.” And a “current law” is not relevant to a given dispute
unless it is also “applicable.” Baltazar is deriving her conclusion that
paragraph 3 refers to the future based on the context in which the phrase
“applicable law” appears, not from the phrase itself. Thus, we do not agree
with her that the use of the different phrases is determinative.
Instead, we find a different variation in the text of these two provisions
to be meaningful. In paragraph 3 of the agreement, the parties referenced
PAGA by name to address how claims under that statute were to be
adjudicated. Their failure to do so in paragraph 2 within the provision

33
Baltazar is relying on tends to suggest it was not meant to encompass PAGA
claims.
Also, in advancing her arguments about the meaning of “current law,”
Baltazar ignores a significant contextual feature: the phrase describes the
“other claims” that, in addition to the specified claims that precede it, are
excepted from the scope of disputes to be arbitrated. The ejusdem generis
canon of interpretation is generally used to determine the intended meaning
of a general term that follows a list of specific terms. Under this canon,
“ ‘when a general word or phrase follows a list of specifics, the general word
or phrase will be interpreted to include only items of the same class as those
listed.’ ” (Wishnev v. The Northwestern Mutual Life Ins. Co. (2019) 8 Cal.5th
199, 213; see Gateway Community Charters v. Spiess (2017) 9 Cal.App.5th
499, 504 [“ejusdem generis (‘literally, “of the same kind” ’)”].) “Ejusdem
generis is typically applied to phrases that list several specific items, then
refer to a general reference, using the term ‘other.’ ” (Zumbrun Law Firm v.
California Legislature (2008) 165 Cal.App.4th 1603, 1619.)
The specific claims in the list that precede the “other claims” also
excepted from arbitration are claims under the NLRA “which are brought
before the” NLRB; claims for medical and disability benefits under the WCA;
and EDD claims. These are all claims the law requires to be resolved
administratively. (See Prime Healthcare Paradise Valley, LLC (June 19,
2019) 368 NLRB No. 10, 2019 WL 2525342, *7 [holding it is an unfair labor
practice under section 8 of the NLRA (29 U.S.C. § 158) for an employer to
restrict an employee’s right to file charges with the Board, “including through
restrictions contained in arbitration agreements”]; Mercuro v. Superior Court
(2002) 96 Cal.App.4th 167, 176 & fn. 12 [“Workers’ compensation and
unemployment benefits are governed by their own adjudicatory systems”; as

34
a result, “neither [a WCA nor an EDD claim] is a proper subject matter for
arbitration”], citing Lab. Code, § 5300 et seq., Unemp. Ins. Code, § 1951 et
seq.) PAGA claims do not share this characteristic, which calls into doubt
whether they are subject to the exception.
Although the parties have not relied on the following presumption, we
recognize that “[o]rdinarily, ‘ “all applicable laws in existence when an
agreement is made, which laws the parties are presumed to know and to have
had in mind, necessarily enter into the contract and form a part of it, without
any stipulation to that effect, as if they were expressly referred to and
incorporated.” ’ ” (Torrance v. Workers’ Comp. Appeals Bd. (1982) 32 Cal.3d
371, 378.) However, it is also the case that “where, as here, the parties to a
contract incorporate a law that is to be used at some time in the future (here,
at the time the arbitration takes place), the parties are deemed to have
contemplated—and hence, consented to—the incorporation of postcontract
changes to that law.” (Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th
621, 642; see Torrance, at p. 379 [“ ‘[When] an instrument provides that it
shall be enforced according either to the law generally or to the terms of a
particular . . . statute, the provision must be interpreted as meaning the law
or the statute in the form in which it exists at the time of such
enforcement.’ ”].)
Further, “[a] judicial construction of a statute is an authoritative
statement of what the statute meant before as well as after the decision of
the case giving rise to that construction.” (Rivers v. Roadway Express, Inc.
(1994) 511 U.S. 298, 312‒313; see also Newman v. Emerson Radio Corp.
(1989) 48 Cal.3d 973, 979 [“ ‘[J]udges do not “create,” but instead “find” the
law. A decision interpreting the law, therefore, does no more than declare
what the law had always been.’ ”].) In this sense, Viking River’s holding that

35
“the FAA preempts the [anti-splitting] rule of Iskanian” (Viking River, supra,
142 S.Ct. at p. 1924) is a statement of what the FAA has always meant with
regard to the arbitrability of individual PAGA claims.
In the end, we are unable to say with “ ‘positive assurance’ ” (AT&T
Techs, supra, 475 U.S. at p. 650) that the provision Baltazar relies upon
withdraws her individual PAGA claims from the scope of disputes the parties
agreed to arbitrate. Because the provision remains ambiguous after applying
the available principles of contract interpretation, we must resolve our doubt
“concerning the scope of arbitrable issues . . . in favor of arbitration.” (Moses
H. Cone, supra, 460 U.S. at pp. 24‒25; Lamps Plus, supra, 139 S.Ct. at
pp. 1418‒1419.)
3. Paragraph 3 Is At Best Ambiguous with Respect to Whether It
Permits Baltazar to Pursue Her Individual PAGA Claims in
Court
The parties’ next series of contentions focus on an asserted

representative action waiver contained in paragraph 3 of the agreement,5
and on subsequent provisions in the agreement that address the effect of the
waiver.

5 For ease of reference, paragraph 3 of the agreement states, in relevant
part: “I agree that any claims brought under this binding arbitration
Agreement shall be brought in the individual capacity of myself only, and,
similarly, any claims brought under this binding arbitration Agreement by
the Company shall be brought by the Company only. This binding
arbitration Agreement shall not be construed to allow or permit the
consolidation or joinder of claims of other claimants, or permit such claims to
proceed as a class or collective action. . . . If under applicable law a
representative claim under the California Private Attorneys General Act
(‘PAGA’) is found to be unwaivable and such an action is pursued in court, I
and the Company agree that any such PAGA claim will be severed and
stayed pending resolution of claims that are arbitrable.”

36
 Both sides take the position that paragraph 3 of the agreement
contains a waiver of the right to bring a representative action. They stumble,
however, in their efforts to identify the contract language that embodies this
waiver. Baltazar cites paragraph 3 for the proposition that the parties’
agreement had a “representative action waiver.” Ace Parking, also
referencing paragraph 3, contends that when Baltazar signed the agreement,
she “waived her substantive and procedural rights to bring a class, collective,
or representative action against Ace Parking.” But the sentence in paragraph
3 that Ace Parking is referring to actually says, “By signing this agreement, I
am agreeing to waive any substantive or procedural rights that I may have to
bring or participate in an action brought on a class or collective basis.” The
word “representative” does not appear in this sentence. We cannot pretend
that it does. (Levi Strauss & Co. v. Aetna Casualty & Sur. Co. (1986) 184
Cal.App.3d 1479, 1486 [“In construing a contract, the court’s function is to
ascertain and declare what, in terms and substance, is contained in
that contract, and not to insert what has been omitted.”].)
However, the first sentence of paragraph 3 of the agreement arguably
operates as a waiver. It states, “I agree that any claims brought under this
binding arbitration Agreement shall be brought in the individual capacity of
myself only, and, similarly, any claims brought under this binding arbitration
Agreement by the Company shall be brought by the Company only.” That
any claims brought under the agreement can only be “brought in the
individual capacity of [her]self only” forecloses the possibility of Baltazar
bringing a claim in her capacity as a private attorney general on behalf of the
state—a limitation that prevents her from bringing PAGA claims.
The parties agree any contractual waiver of Baltazar’s right to bring a
PAGA action is unlawful under Iskanian, as affirmed in Viking River. They

37
take different positions on what must occur next. Ace Parking, relying on
Viking River, contends we must address the illegality by applying the

severability clause6 in paragraph 5 of the agreement (which states, “If any
term or provision or any portion of this Agreement is deemed invalid or
unenforceable, it shall be severed and the remainder of this Agreement shall
be enforceable”), and compel Baltazar’s individual PAGA claim to arbitration,
as required by paragraph 2. Baltazar, on the other hand, relies on the last
sentence of paragraph 3 (stating, “If under applicable law a representative
claim under the [PAGA] is found to be unwaivable and such an action is
pursued in court, I and the Company agree that any such PAGA claim will be
severed and stayed pending resolution of claims that are arbitrable.”). She
refers to this provision as a “PAGA savings clause”; for the sake of clarity, so

will we.7 Baltazar contends Viking River does not control our interpretation
of the agreement in this case, because the agreement at issue in Viking River
did not include a PAGA savings clause. She asks us to enforce the PAGA
savings clause and conclude that it allows her entire action, including her
individual and non-individual PAGA claims, to proceed in court.
We agree with Baltazar that Viking River does not control our
interpretation of the parties’ agreement. For one thing, the severability
clause in Viking River was materially different from the severability clause
here; it provided that “if the waiver provision is invalid in some respect, any

6 “A severability clause ‘evidence[s] the parties’ intent that, to the extent
possible, the valid provisions of the contract[ ] be given effect, even if some
provision is found to be invalid or unlawful.’ ” (Nickson, supra, 90
Cal.App.5th at p. 130, fn. 6.)

7 In adopting Baltazar’s label, we do not also adopt her interpretation of
the provision.

38
‘portion’ of the waiver that remains valid must still be ‘enforced in
arbitration.’ ” (Viking River, supra, 142 S.Ct. at p. 1925, italics added.) The
italicized language was interpreted to support compelling the employee’s
individual PAGA claims to arbitration. (Ibid.) Similar language does not
appear in the severability clause in the parties’ agreement. For another, the
Viking River court did not construe an agreement with a provision like the
PAGA savings clause. (See ibid.) Viking River thus does not address the
issues at hand. (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11
[“ ‘ “[C]ases are not authority for propositions not considered.” ’ ”].)
Turning to the provisions relied on by the parties, although we accept
that paragraph 3 of the agreement contains language that operates as a
waiver of Baltazar’s right to bring a representative claim (and therefore a
PAGA claim), and PAGA waivers are unlawful, we disagree with the parties
with respect to how the agreement should be interpreted to address the
illegality. Contrary to Baltazar’s assertions, we cannot simply ignore the
severability clause in favor of the PAGA savings clause. The clauses are not
mutually exclusive, and disregarding the severability clause in favor of the
PAGA savings clause would render the severability clause without effect.
(Civ. Code, § 1641 [“The whole of a contract is to be taken together, so as to
give effect to every part, if reasonably practicable, each clause helping to
interpret the other.”].) The severability clause applies “[i]f any term . . . or
any portion of this Agreement is deemed invalid or unenforceable[.]” Because
this condition has been met, we implement the severability clause by
severing the first sentence of paragraph 3 in part to the extent it operates as
a PAGA waiver. (See Galarsa, supra, 88 Cal.App.5th at p. 650 [severing
invalid waiver of representative claims in arbitration agreement pursuant to
severability clause and Viking River].)

39
 Severing the PAGA waiver does not render the PAGA savings clause
ineffective. The savings clause is triggered “[i]f under applicable law a
representative claim under [PAGA] is found to be unwaivable and such an
action is pursued in court[.]” (Italics added.) Both aspects of this condition
have been satisfied, irrespective of the severance of the PAGA waiver.
Accordingly, the next clause, which is the provision Baltazar relies on, takes
effect. It requires “any such PAGA claim [to] be severed and stayed pending
resolution of claims that are arbitrable.” (Italics added.)
What must occur at this juncture obviously depends on what the
parties meant by “any such PAGA claim.” (Italics added.) The first
interpretative step is obvious: “any such PAGA claim” is a reference to the
earlier phrase, “a representative claim under [PAGA].” But what does “a
representative claim under [PAGA]” mean? Because “representative” has
dual meanings, this phrase could be referring to either (1) any PAGA claim,
since all PAGA claims are representative in that the plaintiff who asserts
them does so on behalf of the state, or (2) only non-individual PAGA claims,
since these claims can also be labeled as “representative” and they are also
brought “under [PAGA].”
The provision as a whole anticipates severing and staying the
“representative claim under [PAGA]” pending resolution of “claims that are
arbitrable.” Arguably, what the parties meant by “representative” within
this provision can be gleaned by considering the scope of “claims that are
arbitrable.” As we have discussed, paragraph 2 of the agreement must be
construed to require arbitration of Baltazar’s individual PAGA claims. The
“representative” claims to be severed and stayed would therefore constitute
the remaining PAGA claims that are not covered by the agreement to
arbitrate—i.e., Baltazar’s non-individual PAGA claims. This seems to be the

40
most natural way of reading the provision, and it is the interpretation that
has the benefit of giving full effect to paragraph 2. (Civ. Code, § 1641.)
At the same time, one could also reasonably interpret “a representative
claim under [PAGA]” to be a reference to the earlier, waived representative
claims. (Italics added.) Under this reading, the scope of the PAGA claim to
be severed and stayed in court would gain its meaning from the scope of the
earlier, waived claims. Since the earlier waiver operates as a wholesale
waiver of the right to bring any PAGA claim, this reading would suggest
“representative claim under [PAGA]” means any PAGA claim, whether
individual or non-individual. Under this interpretation, all of Baltazar’s
PAGA claims, both individual and non-individual, would remain in court;
none would be arbitrable. However, while this construction of the PAGA
savings clause may seem reasonable in isolation, it fails to give effect to
paragraph 2, which requires arbitration of Baltazar’s individual PAGA
claims. This is therefore a disfavored interpretation of paragraph 3. (Civ.
Code, § 1641.)
Finally, Baltazar contends the “fact that [she] opted out of the PAGA
waiver in a prior [2013 arbitration] agreement show[s] that she did not
consent to arbitrating her PAGA claim, in whole or in part.” We disagree.
Although we may consider parol evidence to construe ambiguity in an
agreement (Code Civ. Proc., § 1856), “ ‘[t]he paramount consideration [in the
interpretation of contracts] is the intention of the contracting parties “. . . as
it existed at the time of contracting” ’ ” (Burch v. Premier Homes, LLC (2011)
199 Cal.App.4th 730, 743; see Civ. Code, § 1636 [“A contract must be so
interpreted as to give effect to the mutual intention of the parties as it
existed at the time of contracting, so far as the same is ascertainable and
lawful.”]). Six years’ time separates the two agreements. We cannot assume,

41
particularly in the absence of factual support (such as a declaration from
Baltazar, which was not provided), that the 2013 agreement is evidence of
Baltazar’s mindset in 2019. Also, Baltazar’s argument ignores that it is the
mutual intent of the parties that matters. (Civ. Code, § 1636.) Even if we
were to accept her contention as true, it would not establish the intent of Ace

Parking.8
In sum, we conclude that the most reasonable interpretation of the
PAGA savings clause is that it requires Baltazar’s individual PAGA claims to
be arbitrated while her non-individual PAGA claims are severed and remain
in court. To the extent the PAGA savings clause is susceptible of a second
reasonable interpretation, it is arguably ambiguous with respect to whether
it requires arbitration of Baltazar’s individual PAGA claims. Once again, we
resolve the ambiguity in favor of arbitration. (Moses H. Cone, supra, 460 U.S.
at pp. 24‒25; Lamps Plus, supra, 139 S.Ct. at pp. 1418‒1419.)

8 After she submitted her respondent’s brief on appeal, Baltazar filed
letters with this court citing two new appellate decisions pursuant to
California Rules of Court, rule 8.254. We have reviewed both decisions and
find them inapposite. At oral argument before this court, Baltazar’s
appellate counsel cited one of the decisions (Duran v. EmployBridge Holding
Co. (2023) 92 Cal.App.5th 59) and contended it addressed a PAGA carve-out
similar to the PAGA savings clause. We disagree. The arbitration agreement
in Duran included a waiver that stated, “claims under PAGA . . . are not
arbitrable under this Agreement.” (Duran, at p. 66.) This waiver is unlike
the parties’ PAGA savings clause, which adds the ambiguous descriptor
“representative” to the phrase “claim under . . . [PAGA].” Because Duran
involved materially different contractual language, it does not guide our
interpretation of the parties’ agreement in this case.

42
 4. The Second Sentence of Paragraph 5 Does Not Exempt Baltazar’s
Individual PAGA Claims from Arbitration
Finally, Baltazar relies on paragraph 5 of the agreement, which states,
in part, “[u]nder no circumstances shall this Agreement be construed to allow
arbitration on a class, collective, representative or other similar basis.”
Citing this provision, she asserts “the parties agreed that under no
circumstances would a PAGA claim be subject to arbitration.”
We disagree with Baltazar’s assertion, the validity of which depends on
the meaning of “representative” in the quoted provision. “[R]epresentative”
in this context is ambiguous. It could be referring to a claim maintained by
Baltazar in her capacity as a private attorney general (which would include
all PAGA claims), or it could be referring to the claims she might assert on
behalf of employees other than herself (which would only include non-
individual PAGA claims). If the word has the first meaning, then all PAGA
claims are excluded from arbitration. If it has the second meaning, only non-
individual PAGA claims are excluded, with the result that Baltazar’s
individual PAGA claim is arbitrable.
Because “representative” in this context is ambiguous, we may rely on
maxims of contract interpretation. A doctrine used to interpret an
ambiguous term that appears in a list with other, known terms is noscitur a
sociis, “ ‘i.e., it is known from its associates.’ ” (Jackson v. Kaiser Foundation
Hospitals, Inc. (2019) 32 Cal.App.5th 166, 174.) “Under this rule, ‘ “ ‘[a] word
of uncertain meaning may be known from its associates and its meaning
“enlarged or restrained by reference to the object of the whole clause in which
it is used.” ’ ” ’ ” (Coast Restaurant Group, Inc. v. Amguard Ins. Co. (2023) 90
Cal.App.5th 332, 344.) “ ‘ “ ‘ “In accordance with this principle of
construction, a court will adopt a restrictive meaning of a listed item if
acceptance of a more expansive meaning would make other items in the list

43
unnecessary or redundant, or would otherwise make the item markedly
dissimilar to the other items in the list.” ’ ” ’ ” (Ibid.)
Applying this maxim of interpretation to the provision relied on by
Baltazar tends to suggest the term “representative” embraces only her non-
individual PAGA claims. Starting with the term “class,” a class action is an
action in which one or more individual plaintiffs “sue or defend for the benefit
of all.” (Code Civ. Proc., § 382.) The named plaintiff is a party to the action
and has claims that are typical of the class he or she represents. (See Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) In a class
action, the plaintiff acts as a representative only to the extent she represents
the interests of absent class members. If class certification is denied, the
plaintiff may proceed with her individual claims, which she then maintains
for herself only. (See, e.g., In re Baycol Cases I & II (2011) 51 Cal.4th 751,
760 [when class certification is denied, “ ‘in theory, the individual plaintiff’s
action can go forward’ ”].)
As for the term “collective,” collective actions are “actions involving opt-
in provisions[.]” (Haro v. City of Rosemead (2009) 174 Cal.App.4th 1067,
1072 [discussing a collective action brought under the Fair Labor Standards
Act (FLSA)].) Collective actions include FLSA actions, as well as “minimum-
wage and overtime pay actions under the Labor Standards Act, equal-pay
suits under the Equal Pay for Equal Work Act, and age-discrimination
actions for non-federal employees under the Age Discrimination in
Employment Act.” (7B Wright & Miller, Federal Practice and Procedure (3d
ed. 2023) § 1807.) A significant difference between collective actions and
class actions is “that every plaintiff who opts in to a collective action has
party status, whereas unnamed class members in [Federal] Rule [of Civil
Procedure] 23 class actions do not.” (Ibid.)

44
 Thus, class and collective actions are “representative,” but only in the
sense and to the extent the plaintiff represents the interests of absent
aggrieved others. They are not “representative” in the sense that the plaintiff
sues not as herself but as a private attorney general, as in a qui tam action
(or PAGA action) where the plaintiff acts on behalf of the state no matter
what the nature of the underlying claims and injuries might be. (California
Business & Industrial Alliance v. Becerra (2022) 80 Cal.App.5th 734, 742 [“A
qui tam action is ‘ “[a]n action brought under a statute that allows a private
person to sue for a penalty, part of which the government or some specified
public institution will receive.” ’ ”].) Specifically in the case of PAGA actions,
the plaintiff acts on behalf of the state even where she only alleges individual
PAGA claims based on Labor Code violations she personally suffered. This is
unlike class or collective claims, where to the extent no other individual’s
claims are joined via opt-ins or class certification, the plaintiff has only an
individual claim for relief, which is not asserted on behalf of any other.
Comparing the word “representative” with “class” and “collective” thus
leads to the conclusion “representative” has the narrower of the two possible
meanings: “representative” in the sense of asserting claims that arise from
the injuries of others. This conclusion in turn suggests the provision Baltazar
is relying on only prohibits arbitration of her non-individual PAGA claims.
In sum, we disagree with Baltazar’s contention the parties agreed in
paragraph 5 of the agreement that “under no circumstances would a PAGA
claim be subject to arbitration.” The provision’s disallowance of
“representative” arbitration appears to encompass only non-individual PAGA
claims. Because we cannot say “ ‘with positive assurance’ ” (AT&T Techs,
supra, 475 U.S. at p. 650) that paragraph 5 precludes arbitration of

45
Baltazar’s individual PAGA claims, we must conclude that it does not have
this effect.
C. Summary: Interpretation of the Parties’ Arbitration Agreement
Baltazar’s individual PAGA claims are plainly encompassed by the
provision in paragraph 2 of the agreement that broadly requires arbitration
of “all disputes that may arise out of or be related in any way to [her]
employment.” The agreement is ambiguous with respect to whether the
exception to arbitration for “claims that are not subject to arbitration under
current law” was intended to incorporate the anti-splitting rule of Iskanian
and exempt all PAGA claims from arbitration. We are compelled to resolve
this ambiguity in favor of compelling arbitration. (Lamps Plus, supra, 139
S.Ct. at p. 1419; Granite Rock, supra, 561 U.S. at p. 301; Moses H. Cone,
supra, 460 U.S. at pp. 24‒25.) To the extent the agreement is also ambiguous
with regard to whether it was intended to permit Baltazar’s entire PAGA
action, or only her non-individual PAGA claims, to proceed in court in the
event “a representative claim under the [PAGA] is found to be unwaivable,”
we construe this ambiguity in favor of arbitration as well. (Lamps Plus, at
p. 1419; Granite Rock, at p. 301; Moses H. Cone, at pp. 24–25.) Finally, we
interpret the word “representative” in paragraph 5 as only prohibiting
arbitration of non-individual PAGA claims. The net result of all of these
determinations is that Baltazar must be compelled to arbitrate her individual
PAGA claims.
We therefore conclude the trial court reached the incorrect result when
it denied Ace Parking’s motion to compel arbitration. We will reverse the
court’s November 18, 2022 minute order denying the motion to compel
arbitration, and we will instruct the court to enter a new order granting Ace
Parking’s motion to compel arbitration in part and denying it in part and

46
compelling Baltazar to arbitrate her individual PAGA claims only. In light of
Adolph, supra, 14 Cal.5th 1104, Ace Parking’s motion must be denied to the
extent it requested dismissal of Baltazar’s non-individual PAGA claims. On
remand, the court must deny Ace Parking’s motion to the extent it requested
dismissal of Baltazar’s non-individual PAGA claims.
DISPOSITION
The trial court’s November 18, 2022 minute order denying Ace
Parking’s motion to compel arbitration and to dismiss Baltazar’s non-
individual PAGA claims (order) is reversed. On remand, the court is
instructed to enter a new order (i) granting Ace Parking’s motion to compel
arbitration in part and denying it in part, (ii) compelling Baltazar to arbitrate
her individual PAGA claims only, and (iii) denying Ace Parking’s motion to
the extent it requested dismissal of Baltazar’s non-individual PAGA claims.
Each side shall bear their own costs on appeal. (Cal. Rules of Court, rule
8.278(a)(5).)

DO, J.

WE CONCUR:

DATO, Acting P. J.

KELETY, J.

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