Filed 4/4/23 Zaklit v. Hankey Investment CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MAYRON ZAKLIT
,

Plaintiff and Respondent
,

v.

HANKEY IN VESTMENT COM PANY
, LP
, et al.
,

Defendant s and Appellant s

. B 3 14081

Los Angeles County Super. Ct. No. 2 1STCV05216

APPEAL from a n order of the Superior Court of
Los Angeles County, Maureen Duffy

- Lewis
, Judge

. Reversed with directions

.

Molino & Ber ardino, The Molino Firm, Michelle Cooper, Benjamin John Carter, John C. Holm es and Ed C hung for Defendant s and Appellant s

.
Winer, Burritt & Scott
, Ke lli D. Burritt ; Gusdorff Law and Janet Gusdorff for Plaintiff and Re spondent

.



### ______ ___________________2 Ha nk ey Investm ent Company, LP, Hankey Finance Company, Inc., Westlake Financial Services 1 (Westlake)
, Christian Torrez, Brian Renfro, and Kelechi Ogbunamiri (collectively, defendants) appeal from the trial court’s order denying their pe tition to compel arbit ration of Ma yron Zaklit’s sexual harassment complaint. We reverse

. FACTS AND PROCEDUR AL BACKGROUND
1. The parties Zaklit alleges Hankey Investment Company, LP, Hankey Finance Company, Inc., Hankey Group, and Westla ke (collectively , the corporate defend ants) collec tively employed her
, 2 beginning in May 2017
, as the mana ger of recruitment and retention and then as the manager of people and culture

. The
individual defendants , Torrez, Renfro, and Ogbu namiri allegedly

were “employed by” the corporate defend ants as “off icers, directors, managing agents, managers, and/or supervisors

. ” Hankey Investment Company contractually provides human resources to the Hankey Group companies , including, Han key Investment Company, LP, Hankey Finance Company,
Inc. , and Westl ake. Westla ke is a finance company that “specializes in the acquisition and servicing of prime to subprime automotive retail installment contracts fro m over 15, 000 new

1 West l ake Financial Service s is actually “Westlake Service s , LLC.”

2 According to defendants, the “Hankey Group” is not an entity but an informal name referring to an associated group of companies that includes the corpor ate defendants. We refer to the three d efendants with the name “Hankey” as the “Hankey defendants” or nonsignatory corporate defen dants.3

and used car dealerships throughout the United States.” Its employees deal with consum ers and deal ers in all 50 states. Hankey Investment Company is a commercial real estate developer and investor that underwrites, pr oduces, an d manages

commer cial real estate. Hankey Finance Company owns “vehicle portfolios used on interstate highways.” It has no em ployees.
2

. Zaklit’s complaint On February 9, 2021, Zaklit filed a sexual harassment
and r etaliation lawsuit against defendants

. She alleged she was jointly employed by the corporate defendants and was supervised by the individual defendants. Zaklit alle ge d that, shortly after her employment began, and c ontinuing throug h mid

- January
2020
, she was subjected to a hostile work environment, including by comments about women’s appearance, including hers, accompanied by leering; belittling remarks a bout women’s

op inions, including hers; being impl iedly told by the director of marketing during a meeting that she should shut her mouth ; and other behavior. In October 2019, the corporate defendants held an event for about 50 “ company ‘ leaders ’

— director

- l e vel and up” at a hotel from Thursday through Sat urday. Zaklit attended as part of the human resources team. Allegedly, at that event, Torrez approached Zaklit and asked her to have a threesome with another employee; Renfro asked h er to go back to his ro om; and Ogbu namiri, after helping Zaklit carry items from the event

to her room for safekeeping , sat down on the bed uninvited with
his shoes off and would not leave right away

. 3 Zaklit told the

3 At the time, Torrez was the director of flooring, Renfro was the senior vice president of servicing , and Ogbunamiri was the ch ie f investment of

f icer.4

vice president of human resources Tonia Douglas what had hap pened. She r esponded that she had seen what happened
, but Za kli t looked to be “ ‘okay.’ ” Zaklit alleged she dreaded going to work, her mental
and physical health deteriorated, and she took disability leave in January 2020. She alle ged she “had no choice but to resi gn from her emplo yment due to Defendants’ failure to provide a safe work environment for her to return to, and failure to protect [her] from being subjected to further harassment.” Zaklit resigned on Janu ary 18, 2021. Zaklit’s complaint asser ts four caus es of action under the
Fair Employment and Housing Act (Gov. Code, § 12940 et seq.; FEHA) for quid pro quo sexual harassment (against all defendants), hostile work environment based on gend er, sex and

sexu al orientation (against all defendants) , retaliatio n (against the corporate defendants), and failure to take reasonable steps

to prevent discrimination, harassment, and retaliation (against the corporate defendants); intentional infliction of emotional di stress (against all defendants); violati on of the R a lph Act (Civ

. Code, § 51.7) for intimidation and implied threat of violence (against Ogbunamiri and the corporate defendants); gender violence (Civ. Code, § 52.4) (against Ogbunamiri); bat tery (against To rrez and the corporate defendants), and constructiv e wrongful termination in violation of public policy (against the corporate defendants).
3

. Litigation over defendants’ petition to compel
arbitration On March 21, 2021, defendan ts’ counsel aske d Zaklit’s counsel whether she would stipulate to a rbitrate th e matter before the AAA as provided for in a dispute resolution agreem ent5

she had signed

. 4 Counsel agreed a provision in the agreement excluding the right to punitive da mages or injunct ive relief
should be severed from i t, and said defendants would ask th e court to do so. Zaklit’s counsel declined to stipulate. On March 26, 2021, defendants filed a joint petition to c ompel arbitration. As par t of their petit ion, d efendants provided the trial court with three different arbitration agreement s Zaklit had s igned

. On March 24, 2017, Zaklit submitted a signed employment application to “Westlake Financial Services” that included her

agreem ent to “submit t o binding arbitration all disputes and claims arising out of submission of this application
, ” a nd acknowled ge d that , if hired, all disputes that “ might arise

out of [her] employment with Westlake Financial Services

. . . will be su bmitted to bindi ng arbitration

. ” That same day Zaklit also signed a separate “Applicant’s Statement and Agreement ” th at acknowled ged, among other things, Zaklit’s and “ the [ c ] ompany [ ’ s]” agreement to submit

any disputes between them to binding ar bitration. On M ay 20, 2017, Zaklit electronically signed the

same agreement

. On that same day, Zaklit and “ Alexa Soto

– Corp orate Recrui ter, ” as the Company representative,
electronic ally signed a two

- page “Employer

- Employee Dispute Resolution Agre ement” (DRA). The D RA state s it is a “[m]utual [a]greement to [a]rbitrate” between the “undersigned employee”

— Zaklit

— and Westlake Services, In c. d/b/a Westlake Financial

4 D e fendants’ counsel also mentioned Zaklit had signed an

“ Applicant’s Statement ” that provided for binding arbitration and had initialed her consent to arbitration in her employment applicat ion.6

Services, “including any and all subsidiary companies including but not li mited to Wilshir e Consumer Credit, Westlake Flooring, Western Funding, hereinafter (‘Company’). ” The agreement includes nine numbered and sep arately

head ed paragraphs. We need not describe them all here. T he first paragraph s tates Zaklit

“ agre es to submit to binding arbitration before a neutral arbitrator all disputes and claims arising out of submission of my employment application or any an d all disput es that may arise out of or already exist related to my employment or relationship with Empl oyer , [ 5 ] whether during or after that employment, including, but not limited to . . . claims f or discrimi nation . . . and claims for violation
of any fe deral, state or other governmental constitution, statute, ordinance or regulation.
I understand that th is Agreement to Arbitrate applies to claims that pre

- exist or may p re

- exist the date of the Ag reement.” The middle of the paragraph states, in bold face type, “I un derstand and acknowledge that I am waiving my right to

a jury trial.” The paragraph states the Federal Arbitration Act (FAA) will govern the arbitration, as well as section 1280 et seq. of the California Code of Civil Procedure, to the extent it “is not

c ontradictory to or preempted by federal law.” The third paragraph governing “Arbit ration Procedure”
states the arbitration will be conducted by “an impartial

5 The agreemen t does not appea r to define “Employer .”7

arbitrator experienced in employment law selected from either ” JAMS, ARS, or AAA, “at the electio n of the Company in accordance with the applicable entity’s then

- cu rrent employment arbitration rules (except as otherwise provided in this agreement ).” The Company is to pay the Arbitrator’s fees and arbitration expenses

. The sixt h paragraph provides fo r the arbitrator to decide any “issue or dispute conc erning the forma tion, applicability, interpretation or enforceability ” of
the agreement. Defendants’ reply brief included evidence showi ng that,

on May 18, 2017, “Onboarding < HR @hankeyinvest ments.com > ”

sent Zaklit a “ Welcome ” email signed by “H uman Resources
D epartment[,] Westlake Financial Services
, ” instructing Zaklit

to complete “ New Hire paperwork online” before coming to orientation. On May 20, 2017, Alexa Soto, an HR employee

at the ti me, electron ically sent Zaklit “New Hi re” documents to sign electronically through a “docusign portal

. ” Soto’s reply email was listed as “asoto6@westlakefinancial.com.” The Applicant’s Statement and DRA were among those documents. Zaklit electronic ally signed them and the other new

- hire documents

on May 20, 2017

. In t heir petition, defendants argued the DRA delegated to the arbitrator any question relating to the DRA’s enforceability. They nonetheless asked the court to sever th e clause limitin g puniti ve damages a nd injunctive relief from the DRA , but asserted that if the court determined the DRA was unenforceable, defendants “aver that the arbitration agreements contained in8

the Application, and Applicant’s Statement are enforceable. ” 6 Defen dants also argued the nonsignatory defe ndants could enforce the arbitration agreements because the complaint alleged they were acting as Westlake’s agents. Zaklit opposed the motion, arguing defendants’ motion to compel concerned an arbitration a greement between pl aintiff and
Westlake only with no basis to require her to arbitrate her claims against the nonsignatory defendants ; defendants failed to prove she signed any agreement to arbitrate ; and the arbitration agreements were unc onscionable. In her declaration sub mitted in su pport of her opposition,
Zaklit declared she was hired and began her employment with all the corporate defendants in May 2017 , the individual defendants sexually harassed her at work, and, despit e her complaints
, “no one ever really helped [her ].”
She de clared that when she was hired, she was required

to sign several documents. She was told she had to complete and sign the do cuments before starting work, and, “[i]f the arbitration agreement was even in those d ocuments, it was not discussed or explained t o me.” Zaklit asserted she “did not even know what
arbitration was at that time.” Zaklit declared she “wanted and needed the job so [she] did what [she] was told .” She averred
she “fe lt pressure to c lick on whatever links, and electronically sign whatev er legal documents appeared on [her] screen that Westlake . . . presented to [her] prior to [her] employment.”

6 In th e ir reply, defendants clarified the petition sought to enforce the DR A and would seek to enforce the other agreements onl y if the court found the DRA unenforceable.9 Zaklit also stated she “was electronically presented with

numerous complex legal d ocuments and was never informed

no r aware that [she ] was possib ly signing an ‘arbitration agreement.’ ” She did not have an opportunity to consult with

an attorne y before signing the documents, Westlake did not explain the documents to her , and she had “no recollection of actually signing any arbitration agreement.” Zaklit declared she did not learn she allegedly had signed an arbitration agreement
unti l she filed her complaint.
4

. The c ourt’s order denying defe ndants’ petition The trial court heard defendants’ petition on June 3, 2021,
and took the matt er under sub mission. There is no reporter’s

trans cript in the appellate record. The trial court issued a written ruling denying the petition on June 11, 2021. The court found Zaklit had signed the arbitration agreements , but the agreements were procedur ally and sub stantively unconscionable

. The court found the arbi tration agreements were not the same, and there were “some contradictions.” D escri bing defendants as able to “pick and choose which of the three documents they seek to enforce
, ”
the court fou nd the agree ments lacked mutuality. The court also ru led the nonsignatory defendants could

not enforce the DRA , finding there was “not s ufficient identi ty of parties, the non

- signatory [defendants were] not the agent for any party to the arbitration agreem ent and the non

- signatories [were] not third

- party be neficiaries of the agreement.”
Defendants timely appealed. 7

7 An order denying a petit ion to compel ar bitration is immediately appealable. (Code Civ. Proc., § 1294, subd. (a).)10 DISCUSSIO N
1. Applicable law and s tandard s of review Under both the Federal Arbitration Act (FAA) and California law, arbitration agreements a re enforceab le unless revocable under state law on grounds that exist for any contract
, such as fraud, duress, and unconsci onability

. (9 U. S.C. § 2; Code
Civ. Proc.
, § 128; Viking River Cruises, Inc. v. Moriana (2022 )

__ U.S.
__,

__ [ 142 S.Ct. 1906, 1917 ] 

### ; Armendariz v. Foundation
H ealth Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 97

– 98 ( Armendariz

) .) The FAA applies to ar bitra tion agreements involving interstate commerce. (9 U.S.C. § 2; Tiri v. Luc k y Chances, Inc. (2014) 226 Cal. A pp.4 th 231, 240 ( Tir i ).) Howeve r,

“ ‘[i]n most important respects, the California statutory scheme on enforcement of private arbitration agree ments is similar to th e [FAA] ’ . . . . Thus, enforcing valid arbitration agreements is favored under both state and federal law.” ( Tiri , at pp. 239

– 240
, q uoting Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4 th 394, 406 ( Rosenthal

) ; but s ee Rosenthal
, at p. 40 5 [FAA sets forth “a liberal federal policy favoring arbitration agreements, notwithstanding any state or procedural policies to the c ontrary ,” and thus “preempts any contrary state law and is binding on state courts as well as federa l”]. ) “ ‘ G eneral pri nciples of contract law determine whether the parties have entered a binding agreement to arbitrate

. ’ ” ( Pinnacle Mu seum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) A party seeking to compel arb itrati on bears the bur den of proving the existence of an arbitration agreement, and the party opposing the petition bears the b urden of est ablishing a defense to the agreement’s
enforcement. ( Engalla v. Permanente Medical Group

, Inc

. (1997)11

15 Cal.4 th 951, 972.) On a petition to com pel arbitration, the trial court sits as the trier of fact, weighing all the affidavits,
declarati ons, and oth er documentary evi dence to determine whether the parties agreed to arbitrate. ( Ibid

. ; Rosenthal , supra , 14 Cal

. 4th a t pp. 413

– 414 .) “ ‘ “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration. [C itation.]
I f the c ourt ’ s order is based on a decision of fact, then we adopt

a substantial evidence standard. [Citatio ns.] Alterna tively, if the c ourt ’ s denial rests solely on a decision of law, then a de novo standard of review is employed.” ’ ” ( Cham bers v. Crow n Asset
Ma nagement, LLC (2021) 71 Cal.App.5th 583, 591.)
2. The operative arbitration agreement
The trial cou rt found Zak lit electronical ly signed the DRA and Applicant’s Statement in May 2017 , and signed the Application and Applicant’s Statem ent in March 2017 

### , based

on Zaklit’s and defendants’ human resources representative’s declarations

. Substan tial evidenc e thus supports the existence of an arbitration agreement

. Zaklit does not contest the court’s finding that she signed the three arbitr ation agreem ents in
this appeal

.
a. The DRA supersedes the other arbitration agreements
Defen dants presented three diffe rent arbitration agreements to the trial court: the Application, signed in March 2017; the Applicant’s Statement, signed in March 2017 and
electron ically signed in May 2017; and the DRA, electronically signed in May 2017. The DRA , h owever, in cludes the f ollowing integra tion clause :

“ This is the complete agreement of the parties on the subject of arbitration of Claims. This12 Agreement sup ersedes any prior or contemporaneous oral or written agreement

or understanding on the subject. In executing this Agreem ent, neither par ty is relying on any representation, oral or written, on the subject of the effect, enforceability or meaning of this
A greement, ex cept as specifically set forth in this Agreement. ”
In both the m oving and reply paper s in support of their petiti on to compel arbitration, defendants asked the court to compel arbitration under the DRA
, and
, if the court determined the DRA

was unenforceabl e , to compel arbitration under the Application and/or Applicant’ s Statement

. The trial court character ized defendants’ argument as having “changed” in their reply and at the hearing to seek to enforce only the DRA

. 8 The court found defendants’ position

—

“ ‘if the DRA is not enforceable, then we seek to enf orce the other
documen ts[’] ”

— demon strated defendan ts could “pick and choose

8 We do not rea d defenda n ts’ reply as taking a different stance from the ir petition. In the petition, after asking the court
to sever the DRA’s provision that exc luded recover y o f punitive damages or injunctive reli ef, defenda n ts asserted that, if the court determined the DRA wa s unenforceable , they “aver[ r ed] ” the arbitration agree ments in the Application and Applicant’s Statement were enforceable. The pe tition thus argu ed plaintiff was bound to arbitrate her claim s under the DRA “and/or” the Application “and/or” the App licant’s Statement. In their reply,

as the trial court noted, defendants clarified their petition

so ught to enforce the DRA and i nclude d the othe r two arbitration agreements “only . . . in the event that the C o urt finds the DRA
to be unenforceable or void/voidable.”13

which of the three documents . . . to enforce,” supporting Zaklit’s argument that the arbitration agreements lacked mutuality

an d thus were substantively unconscionable. Neither the

court nor Zaklit addre ssed whether the DRA in fact sup erseded
the arbitration provisions in the Application and Applicant’s Statement , however

. We agree with defendants that the DRA super sedes the

ar bitration agreements found in the Application and Applicant’s
Sta tement, whic h were signed be fore and/or contemporaneously with the DRA. The DRA clearly states the parties intend it

to be the “complete agreement of the parties” on the su bject of
arbitrati on and “supersedes any prior or contemporaneous ” oral or written agreement on the subject. ( Civ. Code
, § 1639 [ parties’ intent determined from writing alone if possible]; id
., § 1644 [“words of a contract are to be understood in their ordinar y and popular sense”].) Zaklit does not contend the parties intended otherwise or that the cla use is somehow a mbiguous. 9 (See, e.g., Grey v. American Management Services (2012) 204 Cal.App.4th 803, 807, 809 [ existence of an integration clause “ is a key fa ctor in divi ning ” whether the parties “ ‘intended their writing to serve

as the ex clusive embo diment of their agreement’ ” ; introduction of extrinsic evidence is prohibited to vary or contradict terms
of integrated agreement but may be admitted to explain an ambiguity ].) Rather, she simply notes defendants continue to
assert her claims are covered by all three ar bitration agreements and to seek to enforce the clauses in the Application and

9 In essence, Zaklit argues the parties’ arbitrat ion agreement is ambiguous be cause the three agreements contain different terms. She does not, however, contend the terms of the DRA

— sta nding alon e

— are ambiguous.14

Applicant’s Statement if this court finds the DRA is unenf orceable.
As w e have concluded the arbitration agreements in the Application a nd Applicant ’s Statement hav e been superseded, we
consider only whether the trial court erred in denying defendants’ petition to compel arbitration under the DRA

. b. The FAA applies Her e, defendant s presented evidence that Westlake and
its employees enga ge in inters tate commerce th rough servicing and acquiring automotive retail installment contracts with dealerships throughout the United States. The pa rties also expressly designated the FAA would g overn any arbitration under the DRA, as well as the Cali fornia Arbitrati on Act (Code Civ. Proc., 1280 et seq.) “to the extent that California law is not contradictory to or preempted by federal law.” “The FAA requires
that courts enforce arbit ration agree ments according to their

ter ms.” (

Prima Donna Developme nt Corp v. Wells Fargo Bank,
N.A. (2019) 42 Cal.App.5 th 22, 35.) The FAA

— and California law to the extent it does not conflict with the FAA

— thus governs our interpretation of the DRA. 10
3. The DRA’s d elegation clause is enforce able

a. Appl icable law
Ordin arily
, courts determine the enforceability of an arbitration agreement

. ( A T&T Technologies v. Communications Workers of America (1986) 475 U.S. 643, 649.) “ When the parties ’

10 Although Zaklit disputed the application of the FAA in her opposition to defendants’ moti on to compel, she does not ch alleng e its appl ication on appeal. In any event, our analysis here would be the same under both the FAA and Californi a law

. (See Tiri , supra , 226 Cal.App.4th at p. 240.)15

contract dele gates the ar bitrability question to an arbitrator, ” however, “ the c ourts must respect the parties ’ decision as
embodied in the contract. ” ( Henry Schein, Inc. v. Archer & White Sales, Inc

. (2019)

__ U.S.
__,

__ [ 139 S.Ct. 524, 531 ] .) Nevertheless, “c ourts ‘should not assume that the parties agr eed to arbitrate arbitrabil ity unless there is clear and unmistakable evidence that they did so.’ ” ( Ibid. ; see also Chin v. Advanced Fresh Concepts Franchise Corp

. (2011) 194 Cal.App.4th 704, 709 [“ When the parties ‘ “ clearly and unmistakably ” ’ dele gate issues of arbitrability to the arbitrat or, the arbitrator, not the court, decides such issues as the scope of the arbitration agreement. ”] ; Malone v. Superior Court (2014) 226 Cal.App. 4th 1551, 15 60 ( Malone ) [United States Supr eme Court and Calif ornia courts agree delegation cla use “must be cle ar and unmistakable” to be enforceable]. )
Under Rent

-

A

- Center, West, Inc. v. Jackson (2010) 561 U.S. 63 (

Rent

- A

- Center ), “a party’s challenge to the arbitration agreement does not invalida te the delegation c lause , and therefore, the arbitra tor, and not a c ourt, must consider any challenge to the arbitration agreement as a whole.” ( Tiri , supra , 226 Cal. A pp. 4th at p. 240, quoting Rent

- A

- Center , at p . 71 ; Malone, supra , 226 Cal.Ap p. 4th at pp. 1559

– 1560 [ where party challenges arbitration agree ment as a whole, delegation clause is severed and enforced, leaving arbitrator, not the court, to determine if agreement is enforceable] .) “In contrast, if the party is making a specific cha lleng e
to th e delegation clause, the court must determine whethe r the delegation clause itself may be enforced and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable.” ( Malon e, su pra ,16

22 6 Cal.App. 4th at p. 1560 , citing Rent

- A

- Center , supra , 561 U.S.

at p. 70 .) “Stat ed another way, Rent

- A

- Center acknowledges that while courts may consider enforceability challenges specific to delegation clauses , the arbitrator is to consider c hallenges to the arbitration agree ment as a whole .” ( Tiri, supra
, 226 Cal.App.4th at p. 240

. ) “There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear
and unmistakable. [Citation.] Second, th e delegation must not be revocable u nder state cont ract defenses such as fraud, duress,

or unco nscionability.” ( Tiri, supra, 226 Cal.App.4th at p. 242;

see also Rent

-

A

- Center, supra, 561 U.S. at pp. 68, 69, fn. 1.)

“ The ‘ clear and unmistakable ’ test refl ects a ‘ heig htened standard
of proof ’ that reverses t he typical presumption in favor of the arbit ration of disput es. ” ( Aanderud v. Superior Court (2017)
13 Cal.App.5th 880, 892 ( Aanderud ) .)

“ An arbitration agreement is governed by contract law.
It is con strued like other contracts to give effect to the int ention of the parties and the ordinary rules of contract int erpretation apply. [Citation.] If the contractual language is clear and explicit, it governs. ” ( Mendoza v. Trans Valley Transport (2022)
75 Cal.App.5th 748, 764 ( Mendoza ) .)
b. Analysis The DRA i ncludes the following delegation clause in a separate paragr aph with the heading
, “Construction and Enforceability” (capitalization omitted) :

“ Any issue or dispute concerning the formation, applicabil ity, interpr etation or enforceability of this Agreement
, including any claim

or contention that all or any part of this17 Agreement is void or voidable, shall be subject

to arbitration as provided herein. The arbitrator, and not any federal, state or local

court or age ncy, shall have authority to decide any such issue or dispute. The decision of an arbitr ator on any such issue or dispute, as well

as on any Claim submitted to arbitration as provided in this Agreement, shall be final and binding upon the part ies. ” Zaklit argues “the delegation clause itse lf is part of the unconscionable m é lange of contradictory te rms among various agreements which renders the entire arbitration contractual scheme unconscionable.” She contends the delegation cla use lacks mutua lity

— renderi ng it unconscionable

— be cause the three arbitration clauses “contain ed contradictory terms, one such term of which is the presence and simultaneous absence of delegation clauses.” Zaklit continues that, given “thi s lack of mutuality,”
defendant s “cannot su stain t heir burden of showing of ‘ “clear and unmis takable evidence ” ’ that the parties ‘agreed to arbitrate arbitrability.’ ” (Quoting, Mendoza , supra, 75 Cal.App. 5th at

p. 772 [“ ‘[c]ourts should not assume that the parties agreed to arbitra te arbitrabi lity unl ess there is “clear and unmistakeabl[e]”
evi dence that they did so’ ”] .)
I n essence, Zaklit contends the delegation clause is
unenforceable because the other agreements she signed do

not contain a delegation clause
, making it unclear wh ether th e
pa rties intended to arbitrate the issue of arbitrability. We cannot agree. As we discussed
, the DRA superseded the arbitration clauses in the Application and Applicant’s Statement. That those arbitration agreeme nts contained different terms , t herefore
, do es18

not make the DRA’s delegation clause ambiguous nor la cking in mutuality. Rather, the delegation clause in the DRA expressly grants authority to the arbitrator to decide threshold iss ues of arbitrability. It u na mbiguously provides that any dispute abo ut the “formation, applicability, interp retation or enfo rc eability”
of the DRA

— including whether it is void or voidable

— is subject to arbitration , and the arbitrator, not the court, has t he authority
to decide any such dispute. Courts have fou nd simil ar l anguage sufficiently clear and unmistaka ble evidence of the parties ’ intent “to delegate all issues to an arbitrator, including issues
of enforceability.” ( Tiri, supra , 226 Cal.App. 4th at p. 242 [clause stating “ ‘[t]he Arbitrator, and not any federal , st ate, or local court or agency, shall hav e the exclusive authority to resolve

any dispute relating to the interpretation, applicability, enforceability, or formation of this A greement . . .

. ’ ” met “clear and unmistakable” prerequisite]; see al so Malon e, s upra , 226 Cal.App.4 th at p. 1560 [clause p roviding “ ‘[t]h e arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforcea bility of this binding arbitration agreement’ ” was “sufficiently cl ear and unmi stakable” to be enforceable unless unconsc ionable] ; Aander ud , supra , 13 Cal.App.5th at p. 892 [arbitration provision stating “the parties ‘agree to arbitrate all disputes, claims and controversies arising out of or relating to . . . the interpr etation, val idity, or enforceability of this Agreement , including the determination of the scope or applicability of . . . [the “Arbitration19

of Disputes” section]’ ” was “cle ar and unmistakable evidence that the parties intended to arbitrate arbitrability” ].) 11 As the DRA’s delegation clause is clear and unmis takable
, it was enforceable unless it specifically was revocable on
stat e

- law grounds

— h ere, unconscionability

. ( Rent

- A

- Center,

supra , 561 U.S. at p. 7 2 ; Malone, supra , 226 Cal.App. 4th at

p. 1560; Tiri
, supra , 226 Cal.App.4th at p. 243 .)

“ ‘[U] nconscionab ility has both a “ procedural ” and a

“ substantive ” element, ’ the former focusing on ‘ “ oppression ” ’

or ‘ “ surprise ” ’ due to unequal bargaining power, the latter

on ‘ “ overly harsh ” ’ or ‘ “ one

- sided ” ’ results

. ” ( Armendariz

, supra, 24 Cal. 4th at p. 114

. ) Both procedura l and substantive unconscionability must be present for a court to be able to refuse

to en force a contract or a contract term, including an arbitration agreement, under the doctrine of u nconscio nabi lity. ( Ibid. ) “But they need not be pres ent in the same degree.” ( Ibid. ) “[T]he more substantively oppressive the contract term, the less eviden ce of procedural unconscionability is required to come to the conclusion that the term is unenfo rceable, and vice versa.” ( Ibid. ) The party opposing arbitration bear s the burden of proving unconscionability. ( Tiri, supra , 226 Cal.App. 4th at p. 244 .) As we discussed, when c hallenging the enforceability of a delegation clause, “ any claim of unconsc ionabilit y m ust be

11 The delegation clause here did not use the term “excl usive authority,” but the arb itrato r’s exclus ive authority to determine issues of enforceability is implied by the provision that “[t]he arbitrator
, and not any federal, state or local court or agency, shall have authority to decide any such issue or dispu te.” (Italics added.)20

specific to the delegation clause

. ” 12 ( Ibid. , citing Rent

-

A

- Center,

supra , 561 U.S. at p. 73.)
We have little trouble conclu ding substantial evidence supports the trial court’s implied fin di ng that th e delegation
clause was procedurally unconscio nab le. An arbitration agreement imp osed as a condit ion of employment with no opportunity to negotiate is typically adhesive and demonstrates some level of procedural unconscionability. ( Armendariz,

supra , 24 Cal. 4th at pp. 113, 114

– 115 [adhesiv e contract is a standardized contract that, “ ‘imposed and dra fted by the party of superior strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it ’ ”] ; Bal t a zar v. Forever 21, Inc. (2016) 62 Cal. 4th 1237, 1 2 44 [adhesive contracts

“ ‘ co ntain a degree of proc edural unconscio nability even wit hout any notable surprises, and “ bear within them the clear danger
of oppression and overreaching ” ’ ” ].) The trial court found Zaklit’s testimony sufficient to
demonstrate the process of signing the arbitration agreements was procedurally unconscionable. “Where the trial court’s determination of unconscionability is based upon the trial court ’ s resolution of conflicts in the evidence, or on the factual inferences which may be drawn the refrom, we consider the evide nce in the light most favorable to the court ’ s determination and review

12 Defendants argue Zaklit “waived [ her ] right to object to the delegation clause” because she did not specifical ly a ddress i t in her opposition to defendants’ petition. As defendants’ reliance on the superseded arbitration agreements as a “ bac ku p” if the D RA

were not enforced was not entirely clear from the moving papers,

we find Zaklit did not forfeit her challeng e to the de l egation clause

.21

those aspects of the determination for substantial evidence.” ( Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89 .)
Zaklit de clared she was told to complete and sign several “n ew

- hire document s ” before she could begin work

. The record
shows the DRA w as one of th e new

- hire documents electronically provided to Zaklit for her signature

. She declared she did

not reca ll signing any arbitrati on agreement and “was never informed nor aw a re” that she “possibly” was signing an arbitration agreement. Zaklit also averred : she “felt pressure

to click on whatever links, and electronically sign whatever legal docu ments appeared on [her] screen ”; beca use she need ed the job, she “w as not in a position to argue about any of the documents or to negotiate any terms or even to refuse t o sign documents ”; she had no opportunity to consult with an attorney before signing th e documents; and no one from Westlake explained t he documents
to he r. We can infer the trial court found Zaklit’s testimony credible and gave it more weig ht

. Defendants argued Zaklit’s declaration “reveal[ed] no evidence . . . that the arbit ration agreement was required on

a ‘take it or leav e it’ basis

, ” as Zaklit never claimed she asked
wheth er “the DRA was required or negotiable” or that anyone told her s he must sign it as a condition of her employment.
Defendants make a similar argument on appeal. The trial

court re jected defendant s’ cou nterargument as relating “only

to plaintiff’s credibility.” We also cannot conclude Za klit did not meet her burden by fail ing to present evidence that she asked if the DRA w ere negotiable

. (See Tiri, supra , 226 Cal.App. 4th

at p. 245 [human resources mana ger’s statem ents that employee “was never told the agreement was nonnegotiable and that22

[employee] never proposed changes fell far short of demonstrating an arm’s

- length barg aining transaction”].) Zaklit’s testimony and the d ocumentary evide nce in the

reco rd substanti ally support the trial court’s implied finding that
the DRA was an adhesion contract presented to Zaklit, along with its delegation clause, on a take

- it

- or

- leave

- it basis and thus
bore some level of procedural un c onscionability

. ( Tiri, supra
, 226 Cal.App. 4th at pp. 245

– 246 [agreeing with trial court’s implied finding that delegation clause within contract of adhesion was procedurally unconscionable as it too was p resented on take

- it

or

- leave

- it basis]. ) Moreover
, Zaklit was an un sophisticated party, havi ng testified she did not know “what arbitration was

, ”

w ho w as sent the DRA, with the delegation clause, only a few days before her start date among several other do cuments she was told to sign electronically before starting work. That, coupled with the “ ‘arcane nature ’ of the delegation clause, added to its oppression and surprise .” ( A anderud, supra
, 13 Cal.App.5 th at p. 895 .) Although we conclude the delegation clause has some degree of procedural unconscionabil ity, it nonethel ess is valid
because it i s not substantively unconscionable. ( Tiri, supra , 226 Cal.App. 4th at p. 246; see also Malone, supra , 226 Cal.App. 4th

at p. 1570 [delegation clause part of arbitrat ion agreem ent that was contract of adhesion demonst rate d “some evid ence of

proce dural uncons cionability , which must be accompanied by a high showing of substantive unconscionability in order to result
in the conclusion that the delegation clause is unenfor ceable”
bu t had none and thus was valid ] .) Contra ry to Zaklit’s c ontention, th e DRA’s dele gation clause does not lack mutuality. Both Westlake and Zaklit are bound by23

it equally : “

Any issue or dispute ” concerning arbitrability

— including applicability o r enforceability of the DRA

— is subject

to arbitrati on , and the arbi trator’s dec ision “on an y such issue

or dispute

. . . [ is ] final and binding upon the parties. ” ( Italics added; see Tiri, supra , 226 Cal.App. 4th at p. 247 .) Moreover, another panel of thi s court in Malone , as well as t he First
Distric t in Tiri
, concluded similar del egation cla u ses were not substantively unconscionable because they did not lack mutuality, were not otherwise unreasonably favorable to the employer, and were not “ overly harsh or so one sided as to shock the conscience.” (

Malone, supra , 226 Cal.App.4 th a t pp. 1557,
1570

– 1571; Tiri, at p p

. 237, 246

– 247.) Although defendants relied on both cases on appeal and in the trial court, Zaklit
addressed neither

. We recognize the trial court found provisions withi n the DRA itself were substantively uncons cionable f or lack of m utuality : the clause that excludes the right to punitive damages or injunctive relief

— which defendants sought to sever

— and a provisio n that excludes claims “by the Company for injunctive and/ or o ther equitable relief for unfair competiti on

an d/or the una uthorized disclosure of trade secrets or confidential information

. ” Zaklit, however, does not argue how these

p rovision s “ as applied to the delegation clause ren der [ ] that claus e unconscionable by impeding her ability t o arbitrate
whether the arbitration agreement as a whole is unconscionable.” ( Tiri, supra , 226 Cal.App. 4th at p. 248, citing Rent

- A

- Center,

supra , 561 U.S. at p. 73.) As we have concluded the dele gation clause it self is not substantively unconscionable, whether or not these pro visions

are unconscionable and cannot be severed from the DRA

—24

rendering the DRA unenforceable

— was for the arbitrat or, not the trial court, to decide. ( Tiri, supra , 226 Cal.App. 4th at p. 250 [ having determined simil ar delegation clause was valid
, “it [woul d ] be for th e arbitrator to consider the conscionability of
the agreement a s a whole and its other severable provisions”] ; Malone , s upra , 226 Cal.App.4 th at p. 1571 [determining similar delegation cl ause was not unc onscionable and holding trial court

“ did n ot err in g ranting employer’s motion to compel arbitration to permit the arbitrator to resolve [ former employee’s ] challe nges to th e validity and enforceability of the arbitration agreement

as a who le”].) Finally, Zaklit urges us to find the arbitration a greement

— a nd apparently the delegation clause itself

— sub stantively
unconscionable based on the passage of the “Ending Forced Arbitr ation of Sexual Assault and Sexual Harassment Act
of 2021” (Act)
, s igned into law o n March 3, 2022. (Pu b. L. No. 117

- 90, 1 36 Stat. 26. ) That statute invalidates pred ispute arbitration agre ements that requi re arbitration of sexual assault or sexual harassm ent claims. ( 9 U.S.C. § 402(a).) Zaklit concedes the Act does not apply retroactively but
contends that, because “the pr esumptive fa vorable treatment of arbitration clauses supposedly flo wing from the Federal Arbitration Act clearly no longer applies to arbitration clau ses related to sexual harassment claims,” we should invalidate the arbitration agreement here as a gainst p ublic policy . (Citing Sonic

- Calabasas A, Inc

. v. Moreno (2013) 57 C al. 4th 1109 , 1145 [unconscionability also concerns terms that “cont ravene the publi c interest or public policy” ].) We decline. The A ct expressly notes it applies to “ ‘ any dispute or clai m that arise s or accrues on or after the date o f25

enactment of this Act

. ’ ” ( Hist. notes
, 9 U.S.C. § 401 ; P ub. L

. No. 117

- 90, § 3 (Mar

. 3, 2022) 136 Stat

. 2 8 .) “Such plain language indi cates no Congres sional intent to apply the . . . Act

retro actively. Wh ile the Act represents a significant sea change
in the enforcement of arbitration provisions, Congress has chosen to temper that change through prospectiv e rather than retrospective app licability .” ( Z insky v. Russin ( W.D.Pa

. July 22,
2022 , No . 2:22

- cv

- 547 ) 2022 WL 29 06371 at *4 .) Having concluded the trial court erred in denying at least Westlake’s petition to compel arbitration, we next consider whether the court erred in finding the non signatory defendants
not entitled to compe l Zaklit to arbitrate her claims again st them under the DRA

. 4. The n onsignatory defendants can enforce the DRA Generally, only a party to an arbitration agreement

may enforce it. (

DMS Services, LL C v. Superior Co urt (2012)
205 Cal.App.4th 1346, 1352 ( DMS Services ).) There is no dispute
th at the DRA is between Za klit

— the “Employee”

— and Westlak e, “including any and all subsidiary companies including but not limited to Wilshire Consumer Credit, Westl ake Flooring, [a nd] Western Funding”

— the “Company.” Defendants do not contend the H ankey defend ants are sub sidiaries of Westlake but

gener ally refer to them in their briefing as “sister companies of Westlake.” A nd, as the trial cou rt noted, unlike the superseded Applicant’s Statement, the DRA does not expressly include managers or emplo yees in the definition of “Company.” Thus, Westlake is the only named defendant that is a party to the DRA. Both Calif

ornia and fede ral courts , howe ver, recognize nonsignatories to an agreem ent containing an arbitration provi sion may , in limited circ umsta nces, compel arbitration26

of “a dispute arising within the scope of that agreement

. ” ( DMS Services
, 205 Cal.App.4th at p. 1353 ; Garcia v . Pexco, LLC ( 2017) 11 Cal.App .5 th 782, 785

– 786 ( Garcia ) .) The DRA appli es to “any and all disputes that may arise out of or alread y exist related to [Zaklit’s] employment or relationship with Employer,” including

, among others, discrimination claims, tort claims, and c laims for
violat ion of any statute. (Italics added .) As a ll of Zaklit’s claims involve alleged sexual h a rassment , r etaliation, and related
claims that arose from or were related to her employment , if

t he nonsignatory defendants can enforce th e DRA against Za klit, her claims against them unquestionab ly fall within the scope of
the DRA

. Whether a nonsignator y defendant has standing to enforce an arbitration agreement is a question of law subject

to de no vo review. (

Marenco v. DirectTV LLC (201 5) 233 Cal.App.4 th 1409, 1416

– 1417 ( Marenco ) .)
N onsignator y defendants may compel arbitration under theories of agenc y and equita ble estoppel, 13 and as third party

13 The nonsignatory defendants appear to assert they can compel arbitration under the doctrine of equ itable estoppel because all of Zaklit’s causes of action against them and Westlake “are intimately fou nded in and intertwined w ith the emp l oyer’s obligations. ” That doctrine applies when “ ‘the causes of action against the nonsignatory ar e “intimately founded in and intertwined” with the underlying contract obligations.’ ” ( Garcia,

supra , 11 Cal.App. 5th at p. 786 , italics added

. ) Although Zak lit’s claims are based on obligations her alleged joi nt employers owed her as thei r employee, they are not founded on, for example, an employment agreement that contained an arbitration provision. Ra ther, the DRA is a stand

- alone arbitratio n agreement

. A s plaintiff ’ s claims do not arise from a contract, th e doctrine of equitable estop pel does not app ly.27

beneficiaries, among others. ( Marenco
, supra , 233 Cal.App. 4th

at p . 1417; Garcia, supra , 11 Cal.App. 5th at p p. 786, 788 .)

“ These exceptions to the ge neral rule that one must be a party

to an arbitration agree m ent to invo ke it or be bo und by it

‘ generally are based on the existence of a relationship between the nonsignatory and the signatory, suc h as principal a nd agent or employer and employee, where a sufficient “ identity of interest ” exists between them. ’ ” ( DMS Servic es, supra , 205 Cal.App. 4th at p. 1353. ) Courts look to traditional principles of contract and

agency law to determine whether a nonsignatory c an enforce

an arbitration agreement signed by its principal or agent. ( Cohen v. TNP 2008 Participatin g Notes Prog ram, LLC (2019 )
31 Cal.App.5th 840 , 860 ( Cohen ).) Allegations of a n agency relationship with a signatory

— without more

— are gener ally
insufficien t to allow a nonsignatory defendant to enf orce an agreement to arbitrate between a signatory defenda nt and

a pla intiff. (See Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4 th 446, 4 51 ( Barsegian ) [rejecting c ontention that plaintiff ’s alleg ation t hat each of the defendants was the agent
of the other defe ndants entitled all defendants “ to enforce

eac h other’s ar bi tration agreements
, ” because “ then in every
multi defendant case in which the complaint contained such boilerplate allegations of mutual a gency, as long a s one defendant
had entered into an arbitr ation agreement with the plain tiff,

every defen dant would b e able to compel arbitration, regardless
of how tenuous or nonexistent the connections among the defendants might actually be” ]; but see Th omas v. Westlake (2012) 204 Cal.App.4th 605, 614 [nonsigna tory defendants could enforce arbitration agree ment because each was alleged to have28

“acted as an agent of [signatory defendant] in connection with the acts and omissions” described in the complaint ] .)
A nonsigna tory defendant , however, may “ compel a sig natory plaintiff to ar bitrate where there is a connection
b e tween the claims alleged against the nonsignatory and its agency relationship with a signatory ” defendant. ( Cohen, supra, 31 Cal.App.5th at p. 863 ; accor d
, Garcia , supra , 11 Cal.App.5th

at p. 788 [nonsignatory defendan t could enforce arbitrat ion

agreemen t when it was alleged to have been joint employer with signatory defendant, and thus agent of signatory “in [its] dealings with [plaintiff]” ].) P ut another way, “[n]onsignatory defendants may enforc e arbitration agreemen ts ‘where there is suff icient ident ity of parties.’ ” ( Marenco
, supra , 233 Cal.App.4th at

p. 1417 .) The trial court here found the complaint’s allegations that
the defenda nts w ere “ ‘all agent s of each other’ ” were insufficient “to c reate an agency for the purposes of invoking the arbitra tion clause.” The complaint included general boilerplate allegations that each defendant acted as the other’s agent, true. But, t he agency relati onship between Westlake and the nonsignato ry defendants is not simply based on a boilerplate mutu al ag ency al legation , as in Barsegian

. As for the nonsignatory corporate defendants, the complaint alleged the corporate defendants

— Westlake an d
the three Hank ey defendants

— jointly employed Zaklit and the individual defen dants “at all times.” The co mplain t makes no
d istinction between the corporate defendants ’ joint employment of Zaklit, or of the individual defendants

. It also allege d the corporate defendants jointly failed to dev elop policies and
inform their employees about the prohibition of discrimi nation,29

hara ssment, and retaliation and to take corrective actio n against
, or to deter, those wh o engaged in discriminatio n, harassment
, and retaliation; alleged th e corporate defendants and their “officers, directors, managing agents, managers, and superv isors knew, or should have known, of the acts” alleged in the complaint , and the corporate defendants ap proved of or ratified
th ose acts

. Moreover, eve ry cause of action in the complaint, except the cause of action for gender violence alleged against only Ogbunamiri, is asserted against t he corporate def endants jointly

. Garcia , supra , 11 Cal.App.5 th 782
, is instruc tive. There,

a temporary staffing company

— Real Tim e

— hired G arcia and assigned him to work for Pexco. ( Id

. at p. 784.) Garcia signed

an arbitr ation agreem ent with Real Ti me , but not with Pexco. ( Ibid. ) Garcia sued both Real Ti me and Pexco (and another defendant) for wage and hour viola tions that occurred during his assignment with Pexco , alleging they jointly employed him and acted as each oth er’s agent

. ( Id. at p

. 785

. ) The appellate court concluded P exco , as a nonsignatory to Real Time’s arbitration agreement with Garcia, could comp el Garcia to arbitrate his claims against it under the agency exception b ased on Garcia’s agency allegations a nd that the complaint’s caus e s of action all eged identical cla ims and conduct regardin g the workplace violations against “[a]ll [d]efendants witho ut any distinction.” ( Id. at p

. 788 .)
Zaklit ’s complaint not only alleged Westlake and the nonsignatory corp orate defend ants were acting as agents of

on e another but
, as in Garcia

, the complain t alleges they also were her “joint employers fulfilling the same role
, ” and assert ed identical claims agains t them based on the identical set of facts30

“without any distin ction” betwe en them. ( Garci a , supra , 11 Cal .App. 5th at p. 788.)
Zaklit nevertheless argues defendants’ “failure to provide evidence as to the e lements required for agency is fatal to
the invocation of agency status.” We disagree. T he corporate defenda nts could no t b e jointly liable to Zakl it for the individual defendants’ torts and their own workplace violations

— as the complaint al leges

— unless the corporate defendants were acting as each other’s agents in their dealings with their employees

— Zaklit and the individu al defendants

— as al leged joint employers. (See Barsegian, su

pra , 215 Cal.App.4 th at p. 453, fn. 3 [explaining boilerplat e allegations that defendants acted as each other’s agents “can be sufficient to support a motion to compel
arbitration eve n if the all egation is not treated as a judicial ad mission” when the defendants’ liability wa s dependent upon the boilerplate agency allegation, which wa s not the case there].) Moreover, although the court did not mention it in its ruling, defendants prese nted with th eir petition the declar ation of the V ic e President of Human Resources for Hankey Investment Company

— Tonia Douglas

— who averred Hankey Investme nt Company provides “human resource services” to the Hankey Group companies, which include all of the c orporate def endants. Thus, at the time of Zaklit ’s alleged joint employment by the corporate defendants, defendant Hankey Investment Company was providi ng human resource services to Westlake , e.g., acting as its agent. 14 The complaint refers to this relat ionship. Z a klit

14 Douglas also declared Hankey Finance Company has no employees, and, as we noted, defendants ass ert the Hankey Group is simply a name

— rat her than an ac tual entity

— used
to refer to the group of associated companies.31

alleged Douglas w as the Vice P res ident of Human Resources, that she witness ed sexually harassing conduct directed at Zaklit
, and that Z aklit reported the individual defendants’ conduct from the October 2019 event to Douglas, who essentiall y did nothi n g. And, Zaklit receiv ed her new

- hire documents from both H ankey
In vestment Company and Westlake. In any event , Zaklit’s allega tions were sufficient to support the agency exception, entitling the nonsignatory corporate defendants to compel arbi tration of Z aklit’s c laims under t he DRA. Zaklit’s allegations against the indi vidual defendants similarly establish they were acting as ag ents of Westlake.
B eyond the “boilerplate” a gency allegation
, Zaklit specifically allege d the corporate defendants, including W e stlake, employ ed the individual defendants as “officers, directors, managing agents, managers, and/or supervisors ,” and each individual defendant held a title reflecting th eir employment in that capacity: the Senior Vice President of Servicin g (Renfro)
, t he Director of Flooring (Torrez), and the Chi ef Investment Officer (Ogbunam iri). The complaint also alleged th at, when they engaged in the alleged sexually harassing conduct

— which forms the basis
of all Zaklit’s caus es of action

— the individual defendants w ere supervisors un der the FEHA, specifically, Government Code section 12926, s ubdivision (t). That section defines “[s]upervisor” as “an y individual having the authority, in the interest of the employer , to hi re, transfer, suspend, lay off, re call, pr omo t e, discharge, assign, reward, or discipline other employ ees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommen d that action, if, in connection with the32

foregoing, t he exercise of that authority is n ot of a mer e ly routine or clerical nature, but requires the use of i ndependent judgment.” (Gov. Code
, § 12926, subd. (t), italics added.) In other words, the individu al defendants had authority to act on behalf of Westla ke and the other corporate defenda nts. An d, a s we discussed, the complaint alleged the corporate defe ndants “approved ” of the acts alleged in the complaint or “ratified them after learning of them.” Moreover, although the compl aint does not us e the words “acted within the scope of the ir employment, ” Zaklit’s causes of action all are based on s exually harassing conduct the individual defendants allegedly engaged in within the course and scope
of their employment by Westlake (and the other corpor ate defendants) : in the workplace general ly, and at a t h ree

- day

event the corporate defendants held f or employees at a hotel in October 2019

. For example, Zaklit’s cause of action for quid pro quo

se xual harassment allege d her job, other terms of her

em ployment, and the like
, were “expressly or im pliedly

con t ingent upon” her acceptance of the individual defendants’ unwanted sexual advances and verbal conduct

— including
the conduct that allegedly occurred at the hotel event in October 2019

— while the defen dants were acting as supervisors

. Similarly, Zaklit’s se c ond cause of action for hostile work environment alleged the individual defendants were supervisors “at all times,” and their conduct alleged in the complaint was unwelcome an d “created an oppressive, hostile, intimid ating, and/or offensive wor k environme n t ” for her, and affec ted her “emotional well

- being and her ability to do her job.” Zakl it’s tort claims for intentional infliction of emotion al
distress , bat tery, implied threat of violence in violat ion of Civil33

C ode section 51.7, and gender vi olence unde r Ci vil Code section 52.4 also all are based on the individual defendants’
conduct at th e October 2019 work event where they allegedly had aut hority to act fo r Westlake (and the other corporate
defend ants) as supervi sors, managers, managing agen ts, officer s ,
o r directors. Accordingly, the complaint’s alle gations are suff icient to establish the individual defenda nts were acting as Westlake’s agents, entitling them to enfo rce the DRA against Zaklit. (See
24 Hour Fitness, Inc. v. Superior Court (19 98) 66 Cal. A pp. 4th 1199, 1210

– 1211 [ allegations individual def endants alleged l y sexually harassed plaintiff within the c ourse and scope of their employment established they were ac ting as defendant employer’s agents an d thus they were entitled to summary j udgment on g round the claims against them were subject t o arbi tration agreemen t between the plaintiff and defendant empl oyer].)
5. We decline to consi der the validity of the supers eded agreements Finally, d efendants contend that, if the arbitrator
determin es the DRA i s unenforceable based on unconscionability, “it wo uld be appropria te for the trial court to enforce either o f
the . . . two preceding arbitration agreements.” Defendants argue

a finding that the DRA is unconscionable and thus void would “vitia te the enti r e agreement, including th e superseding cl ause,” essentially reinstating the superse ded arbitration agreements.
Defe ndants did not make this argument in the trial court, although, as we discussed, they did argue the Application and/or Applicant ’s Stateme n t also compelle d Zaklit to arbitrate her
claims if the DR A were unenforceable.34 Defendants’ claim is not ripe

. I t w ould be premature for us to de termin e whether the trial court should enforce the arbitration provisions under the Application an d Applican t ’ s Statement wh en the arbitrator has yet to determine the validity
of the DRA. We note, howeve r, as Zaklit argues, the authorities on which defendants rely to support their assertion that the “superseding clause” would be “vitiate[e d]”

— and the earl ier arb i tration agreements reinstated

— if t he arbitrator finds
the DRA is unconscionable

— do not stand f or that proposition. (See Moncharsh v. Heily & Blasé (1992) 3 Cal. 4th 1, 29 [“If a

contract includes an arbitration agreement, and ground s exist

to r evok e the e n tire contract, such grounds would also vitiate the arbitration agreement. Thus, if an otherwis e enforceable arbitration agreement is contained in an illegal contract, a party may avoid arbitration altogether. ”]; Cal ifornia State Council of Car penters v. S uperior Court (1970) 11 Cal.App.3d 144, 15 7 [“illegality in a contract containing a provision for arbi tration,
in order to vitiate such pr ovision, must be such as renders the entire contract illegal and unenforceable; and that a claim of
il lega lity of one of the incidental clauses of the contract that falls short of affording ground for revocation of the c ontract is itself subject to arbitra tion ”]; Bianco v. Superior Court of Los Angeles County (1968) 265 Cal.App.2d 126, 130 [plaintiff not requi red

to arbi t rate w here entire agre ement found revocable based on illegality] .)35 D ISPOSITION The order denying defendan ts’ petition to compel
arbitration is reversed

. On remand, the trial court shall stay the current litigation and allow Westlake to choose an arbitra t or f rom JAMS, ARS, or AAA, as provided by the DRA. The arbitrator shall determine the validity of the DRA , or what
should occur if the arbitrator finds the DRA is invalid or unenforceable. We express no opinion on the validity of the DRA,

or what should occu r if the arbitrator finds the DRA is invalid or unenforceable. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON , J.

We concur:

LAVIN
, Acti ng P. J.

N GUYEN (KIM)
, J. *

* Judge of the Los Angel es County Superior Court
, assigned by the Chief Justice pursuant to article VI, section 6 of the Calif ornia Constitution.