Filed 6/24/21 Western Bagel Co. v. Superior Court CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

WESTERN BAGEL COMPANY, 

INC.,

Petitioner,

v.

THE SUPERIOR COURT OF LOS 

ANGELES COUNTY,

Respondent;

JOSE CALDERON,

Real Party in Interest.

 B305625

 (Los Angeles County

 Super. Ct. No. 19STCV22699)

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.
2

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 
3

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.”].)
4

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.]”].) 
5

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 
6

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 
7

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.” 
8

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.” 
9

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.
10

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 nonbinding 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 
11

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].)
12

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 
13

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.]”].) 
14

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 crosspetition. (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, 
15

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.).) 
16

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.”].)
17

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 nonbinding 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.)
18

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 
19

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 
20

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 
21

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.)
22

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 
23

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
24

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.”].)
25

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. 
26

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.