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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.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 INVESTMENT 

COMPANY, LP, et al.,

Defendants and Appellants.

B314081

Los Angeles County

Super. Ct. No.

21STCV05216

APPEAL from an order of the Superior Court of 

Los Angeles County, Maureen Duffy-Lewis, Judge. Reversed

with directions.

Molino & Berardino, The Molino Firm, Michelle Cooper, 

Benjamin John Carter, John C. Holmes and Ed Chung for 

Defendants and Appellants.

Winer, Burritt & Scott, Kelli D. Burritt; Gusdorff Law 

and Janet Gusdorff for Plaintiff and Respondent.

_________________________
2

Hankey Investment Company, LP, Hankey Finance 

Company, Inc., Westlake Financial Services1 (Westlake), 

Christian Torrez, Brian Renfro, and Kelechi Ogbunamiri 

(collectively, defendants) appeal from the trial court’s order 

denying their petition to compel arbitration of Mayron Zaklit’s

sexual harassment complaint. We reverse.

FACTS AND PROCEDURAL BACKGROUND

1. The parties

Zaklit alleges Hankey Investment Company, LP, 

Hankey Finance Company, Inc., Hankey Group, and Westlake 

(collectively, the corporate defendants) collectively employed her,

2

beginning in May 2017, as the manager of recruitment and 

retention and then as the manager of people and culture. The 

individual defendants, Torrez, Renfro, and Ogbunamiri allegedly

were “employed by” the corporate defendants as “officers, 

directors, managing agents, managers, and/or supervisors.”

Hankey Investment Company contractually provides 

human resources to the Hankey Group companies, including, 

Hankey Investment Company, LP, Hankey Finance Company, 

Inc., and Westlake. Westlake is a finance company that 

“specializes in the acquisition and servicing of prime to subprime 

automotive retail installment contracts from over 15,000 new 

1 Westlake Financial Services is actually “Westlake Services, 

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 corporate defendants. We refer 

to the three defendants with the name “Hankey” as the “Hankey 

defendants” or nonsignatory corporate defendants.
3

and used car dealerships throughout the United States.” Its 

employees deal with consumers and dealers in all 50 states. 

Hankey Investment Company is a commercial real estate 

developer and investor that underwrites, produces, and manages 

commercial real estate. Hankey Finance Company owns “vehicle 

portfolios used on interstate highways.” It has no employees.

2. Zaklit’s complaint

On February 9, 2021, Zaklit filed a sexual harassment 

and retaliation lawsuit against defendants. She alleged she was 

jointly employed by the corporate defendants and was supervised 

by the individual defendants. Zaklit alleged that, shortly after 

her employment began, and continuing through 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 about women’s

opinions, including hers; being impliedly 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-level and up” at a 

hotel from Thursday through Saturday. 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 her to go back to his room; and

Ogbunamiri, 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 

chief investment officer.
4

vice president of human resources Tonia Douglas what had 

happened. She responded that she had seen what happened,

but Zaklit 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 alleged she “had no choice but to resign 

from her employment 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

January 18, 2021.

Zaklit’s complaint asserts four causes 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 gender, sex and 

sexual orientation (against all defendants), retaliation (against 

the corporate defendants), and failure to take reasonable steps 

to prevent discrimination, harassment, and retaliation (against 

the corporate defendants); intentional infliction of emotional 

distress (against all defendants); violation of the Ralph 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); battery 

(against Torrez and the corporate defendants), and constructive

wrongful termination in violation of public policy (against the 

corporate defendants).

3. Litigation over defendants’ petition to compel 

arbitration

On March 21, 2021, defendants’ counsel asked Zaklit’s 

counsel whether she would stipulate to arbitrate the matter 

before the AAA as provided for in a dispute resolution agreement 
5

she had signed.

4 Counsel agreed a provision in the agreement

excluding the right to punitive damages or injunctive relief 

should be severed from it, and said defendants would ask 

the court to do so. Zaklit’s counsel declined to stipulate. On 

March 26, 2021, defendants filed a joint petition to compel 

arbitration.

As part of their petition, defendants provided the trial court 

with three different arbitration agreements Zaklit had signed. 

On March 24, 2017, Zaklit submitted a signed employment 

application to “Westlake Financial Services” that included her

agreement to “submit to binding arbitration all disputes and 

claims arising out of submission of this application,” and 

acknowledged that, if hired, all disputes that “might arise 

out of [her] employment with Westlake Financial Services . . .

will be submitted to binding arbitration.” 

That same day Zaklit also signed a separate “Applicant’s 

Statement and Agreement” that acknowledged, among other 

things, Zaklit’s and “the [c]ompany[’s]” agreement to submit 

any disputes between them to binding arbitration.

On May 20, 2017, Zaklit electronically signed the 

same agreement. On that same day, Zaklit and “Alexa Soto

– Corporate Recruiter,” as the Company representative, 

electronically signed a two-page “Employer-Employee Dispute 

Resolution Agreement” (DRA). The DRA states it is a “[m]utual 

[a]greement to [a]rbitrate” between the “undersigned employee”

—Zaklit—and Westlake Services, Inc. d/b/a Westlake Financial 

4 Defendants’ 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 

application.
6

Services, “including any and all subsidiary companies including 

but not limited to Wilshire Consumer Credit, Westlake Flooring, 

Western Funding, hereinafter (‘Company’).”

The agreement includes nine numbered and separatelyheaded paragraphs. We need not describe them all here. The 

first paragraph states Zaklit

“agrees to submit to binding arbitration before 

a neutral arbitrator all disputes and claims 

arising out of submission of my employment 

application or any and all disputes that may 

arise out of or already exist related to my 

employment or relationship with Employer,[

5]

whether during or after that employment, 

including, but not limited to . . . claims for 

discrimination . . . and claims for violation 

of any federal, state or other governmental 

constitution, statute, ordinance or regulation. 

I understand that this Agreement to Arbitrate 

applies to claims that pre-exist or may pre-exist 

the date of the Agreement.”

The middle of the paragraph states, in bold face type, 

“I understand 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 

contradictory to or preempted by federal law.”

The third paragraph governing “Arbitration Procedure” 

states the arbitration will be conducted by “an impartial

5 The agreement does not appear to define “Employer.”
7

arbitrator experienced in employment law selected from either” 

JAMS, ARS, or AAA, “at the election of the Company in 

accordance with the applicable entity’s then-current employment

arbitration rules (except as otherwise provided in this 

agreement).” The Company is to pay the Arbitrator’s fees 

and arbitration expenses. The sixth paragraph provides for 

the arbitrator to decide any “issue or dispute concerning the 

formation, applicability, interpretation or enforceability” of 

the agreement.

Defendants’ reply brief included evidence showing that, 

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

sent Zaklit a “Welcome” email signed by “Human Resources 

Department[,] 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 time, electronically sent Zaklit “New Hire” 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 

electronically signed them and the other new-hire documents 

on May 20, 2017.

In their petition, defendants argued the DRA delegated to

the arbitrator any question relating to the DRA’s enforceability. 

They nonetheless asked the court to sever the clause limiting 

punitive damages and injunctive relief from the DRA, but 

asserted that if the court determined the DRA was unenforceable, 

defendants “aver that the arbitration agreements contained in 
8

the Application, and Applicant’s Statement are enforceable.”

6 

Defendants also argued the nonsignatory defendants 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 agreement between plaintiff 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 unconscionable.

In her declaration submitted in support 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, despite her 

complaints, “no one ever really helped [her].” 

She declared that when she was hired, she was required 

to sign several documents. She was told she had to complete and 

sign the documents before starting work, and, “[i]f the arbitration 

agreement was even in those documents, it was not discussed or

explained to 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 “felt pressure to click on whatever links, and electronically

sign whatever legal documents appeared on [her] screen that 

Westlake . . . presented to [her] prior to [her] employment.”

6 In their reply, defendants clarified the petition sought to 

enforce the DRA and would seek to enforce the other agreements 

only if the court found the DRA unenforceable.
9

Zaklit also stated she “was electronically presented with 

numerous complex legal documents and was never informed 

nor aware that [she] was possibly signing an ‘arbitration 

agreement.’ ” She did not have an opportunity to consult with 

an attorney 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 

until she filed her complaint.

4. The court’s order denying defendants’ petition

The trial court heard defendants’ petition on June 3, 2021, 

and took the matter under submission. There is no reporter’s 

transcript 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 procedurally and 

substantively unconscionable. The court found the arbitration 

agreements were not the same, and there were “some 

contradictions.” Describing defendants as able to “pick and 

choose which of the three documents they seek to enforce,”

the court found the agreements lacked mutuality.

The court also ruled the nonsignatory defendants could 

not enforce the DRA, finding there was “not sufficient identity 

of parties, the non-signatory [defendants were] not the agent for 

any party to the arbitration agreement and the non-signatories 

[were] not third-party beneficiaries of the agreement.”

Defendants timely appealed.7

7 An order denying a petition to compel arbitration is 

immediately appealable. (Code Civ. Proc., § 1294, subd. (a).)
10

DISCUSSION

1. Applicable law and standards of review

Under both the Federal Arbitration Act (FAA) and 

California law, arbitration agreements are enforceable unless 

revocable under state law on grounds that exist for any contract, 

such as fraud, duress, and unconscionability. (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 

Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97–98

(Armendariz).) The FAA applies to arbitration agreements 

involving interstate commerce. (9 U.S.C. § 2; Tiri v. Lucky 

Chances, Inc. (2014) 226 Cal.App.4th 231, 240 (Tiri).) However, 

“ ‘[i]n most important respects, the California statutory scheme

on enforcement of private arbitration agreements is similar to 

the [FAA]’ . . . . Thus, enforcing valid arbitration agreements is 

favored under both state and federal law.” (Tiri, at pp. 239–240, 

quoting Rosenthal v. Great Western Financial Securities Corp.

(1996) 14 Cal.4th 394, 406 (Rosenthal); but see Rosenthal,

at p. 405 [FAA sets forth “a liberal federal policy favoring 

arbitration agreements, notwithstanding any state or procedural 

policies to the contrary,” and thus “preempts any contrary state

law and is binding on state courts as well as federal”].)

“ ‘General principles of contract law determine whether 

the parties have entered a binding agreement to arbitrate.’ ” 

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

(US), LLC (2012) 55 Cal.4th 223, 236.) A party seeking to 

compel arbitration bears the burden of proving the existence of 

an arbitration agreement, and the party opposing the petition 

bears the burden of establishing a defense to the agreement’s 

enforcement. (Engalla v. Permanente Medical Group, Inc. (1997) 
11

15 Cal.4th 951, 972.) On a petition to compel arbitration, the 

trial court sits as the trier of fact, weighing all the affidavits, 

declarations, and other documentary evidence to determine 

whether the parties agreed to arbitrate. (Ibid.; Rosenthal, supra, 

14 Cal.4th at pp. 413–414.)

“ ‘ “There is no uniform standard of review for evaluating 

an order denying a motion to compel arbitration. [Citation.] 

If the court’s order is based on a decision of fact, then we adopt 

a substantial evidence standard. [Citations.] Alternatively, if 

the court’s denial rests solely on a decision of law, then a de novo 

standard of review is employed.” ’ ” (Chambers v. Crown Asset 

Management, LLC (2021) 71 Cal.App.5th 583, 591.)

2. The operative arbitration agreement

The trial court found Zaklit electronically signed the 

DRA and Applicant’s Statement in May 2017, and signed the 

Application and Applicant’s Statement in March 2017, based 

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

declarations. Substantial evidence thus supports the existence

of an arbitration agreement. Zaklit does not contest the court’s 

finding that she signed the three arbitration agreements in 

this appeal.

a. The DRA supersedes the other arbitration agreements

Defendants presented three different arbitration

agreements to the trial court: the Application, signed in March 

2017; the Applicant’s Statement, signed in March 2017 and 

electronically signed in May 2017; and the DRA, electronically 

signed in May 2017. The DRA, however, includes the following 

integration clause:

“This is the complete agreement of the parties 

on the subject of arbitration of Claims. This 
12

Agreement supersedes any prior or 

contemporaneous oral or written agreement 

or understanding on the subject. In executing

this Agreement, neither party is relying on any 

representation, oral or written, on the subject 

of the effect, enforceability or meaning of this 

Agreement, except as specifically set forth in 

this Agreement.”

In both the moving and reply papers in support of their petition 

to compel arbitration, defendants asked the court to compel 

arbitration under the DRA, and, if the court determined the DRA

was unenforceable, to compel arbitration under the Application 

and/or Applicant’s Statement.

The trial court characterized 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 enforce the other 

documents[’] ”—demonstrated defendants could “pick and choose 

8 We do not read defendants’ reply as taking a different 

stance from their petition. In the petition, after asking the court 

to sever the DRA’s provision that excluded recovery of punitive 

damages or injunctive relief, defendants asserted that, if the 

court determined the DRA was unenforceable, they “aver[red]”

the arbitration agreements in the Application and Applicant’s 

Statement were enforceable. The petition thus argued plaintiff 

was bound to arbitrate her claims under the DRA “and/or” the 

Application “and/or” the Applicant’s Statement. In their reply, 

as the trial court noted, defendants clarified their petition 

sought to enforce the DRA and included the other two arbitration 

agreements “only . . . in the event that the Court 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 

and thus were substantively unconscionable. Neither the 

court nor Zaklit addressed whether the DRA in fact superseded 

the arbitration provisions in the Application and Applicant’s 

Statement, however. 

We agree with defendants that the DRA supersedes the 

arbitration agreements found in the Application and Applicant’s 

Statement, which were signed before and/or contemporaneously 

with the DRA. The DRA clearly states the parties intend it 

to be the “complete agreement of the parties” on the subject of 

arbitration 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 ordinary and 

popular sense”].) Zaklit does not contend the parties intended 

otherwise or that the clause is somehow ambiguous.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 factor 

in divining” whether the parties “ ‘intended their writing to serve 

as the exclusive embodiment 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 arbitration agreements 

and to seek to enforce the clauses in the Application and 

9 In essence, Zaklit argues the parties’ arbitration agreement 

is ambiguous because the three agreements contain different 

terms. She does not, however, contend the terms of the DRA—

standing alone—are ambiguous.
14

Applicant’s Statement if this court finds the DRA is 

unenforceable.

As we have concluded the arbitration agreements in the 

Application and Applicant’s Statement have been superseded, we 

consider only whether the trial court erred in denying defendants’ 

petition to compel arbitration under the DRA. 

b. The FAA applies

Here, defendants presented evidence that Westlake and 

its employees engage in interstate commerce through servicing 

and acquiring automotive retail installment contracts with 

dealerships throughout the United States. The parties also 

expressly designated the FAA would govern any arbitration 

under the DRA, as well as the California Arbitration 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 arbitration agreements according to their 

terms.” (Prima Donna Development Corp v. Wells Fargo Bank, 

N.A. (2019) 42 Cal.App.5th 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 delegation clause is enforceable

a. Applicable law

Ordinarily, courts determine the enforceability of an 

arbitration agreement. (AT&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’ motion to compel, she does not 

challenge its application on appeal. In any event, our analysis 

here would be the same under both the FAA and California law.

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

contract delegates the arbitrability question to an arbitrator,”

however, “the courts 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, “courts ‘should not assume that the parties agreed 

to arbitrate arbitrability 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” ’ delegate issues 

of arbitrability to the arbitrator, 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, 1560 

(Malone) [United States Supreme Court and California courts 

agree delegation clause “must be clear 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 invalidate the delegation clause, and 

therefore, the arbitrator, and not a court, must consider any 

challenge to the arbitration agreement as a whole.” (Tiri, supra,

226 Cal.App.4th at p. 240, quoting Rent-A-Center, at p. 71; 

Malone, supra, 226 Cal.App.4th at pp. 1559–1560 [where party 

challenges arbitration agreement 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 challenge 

to the delegation clause, the court must determine whether 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.” (Malone, supra, 
16

226 Cal.App.4th at p. 1560, citing Rent-A-Center, supra, 561 U.S. 

at p. 70.) “Stated another way, Rent-A-Center acknowledges that 

while courts may consider enforceability challenges specific to 

delegation clauses, the arbitrator is to consider challenges to the 

arbitration agreement 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, the delegation must not 

be revocable under state contract defenses such as fraud, duress, 

or unconscionability.” (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 reflects a ‘heightened standard 

of proof’ that reverses the typical presumption in favor of the 

arbitration of disputes.” (Aanderud v. Superior Court (2017) 

13 Cal.App.5th 880, 892 (Aanderud).)

“An arbitration agreement is governed by contract law. 

It is construed like other contracts to give effect to the intention 

of the parties and the ordinary rules of contract interpretation 

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 includes the following delegation clause in a

separate paragraph with the heading, “Construction and 

Enforceability” (capitalization omitted): 

“Any issue or dispute concerning the formation, 

applicability, interpretation or enforceability 

of this Agreement, including any claim 

or contention that all or any part of this 
17

Agreement is void or voidable, shall be subject

to arbitration as provided herein. The 

arbitrator, and not any federal, state or local 

court or agency, shall have authority to decide 

any such issue or dispute. The decision of an 

arbitrator 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 parties.”

Zaklit argues “the delegation clause itself is part of the 

unconscionable mélange of contradictory terms among various 

agreements which renders the entire arbitration contractual 

scheme unconscionable.” She contends the delegation clause 

lacks mutuality—rendering it unconscionable—because the three

arbitration clauses “contained contradictory terms, one such term 

of which is the presence and simultaneous absence of delegation 

clauses.” Zaklit continues that, given “this lack of mutuality,”

defendants “cannot sustain their burden of showing of ‘ “clear 

and unmistakable 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 

arbitrate arbitrability unless there is “clear and unmistakeabl[e]” 

evidence that they did so’ ”].)

In essence, Zaklit contends the delegation clause is 

unenforceable because the other agreements she signed do 

not contain a delegation clause, making it unclear whether the 

parties 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 agreements contained different terms, therefore, does 
18

not make the DRA’s delegation clause ambiguous nor lacking 

in mutuality. 

Rather, the delegation clause in the DRA expressly 

grants authority to the arbitrator to decide threshold issues of 

arbitrability. It unambiguously provides that any dispute about 

the “formation, applicability, interpretation or enforceability” 

of the DRA—including whether it is void or voidable—is subject 

to arbitration, and the arbitrator, not the court, has the authority 

to decide any such dispute. Courts have found similar language

sufficiently clear and unmistakable 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, state, or local 

court or agency, shall have the exclusive authority to resolve 

any dispute relating to the interpretation, applicability, 

enforceability, or formation of this Agreement . . . .’ ” met 

“clear and unmistakable” prerequisite]; see also Malone, supra, 

226 Cal.App.4th at p. 1560 [clause providing “ ‘[t]he arbitrator 

has exclusive authority to resolve any dispute relating to 

the interpretation, applicability, or enforceability of this 

binding arbitration agreement’ ” was “sufficiently clear and 

unmistakable” to be enforceable unless unconscionable];

Aanderud, 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 interpretation,

validity, or enforceability of this Agreement, including the 

determination of the scope or applicability of . . . [the “Arbitration 
19

of Disputes” section]’ ” was “clear and unmistakable evidence that 

the parties intended to arbitrate arbitrability”].)11

As the DRA’s delegation clause is clear and unmistakable,

it was enforceable unless it specifically was revocable on

state-law grounds—here, unconscionability. (Rent-A-Center, 

supra, 561 U.S. at p. 72; Malone, supra, 226 Cal.App.4th at

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

“ ‘[U]nconscionability 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 procedural and substantive 

unconscionability must be present for a court to be able to refuse 

to enforce a contract or a contract term, including an arbitration 

agreement, under the doctrine of unconscionability. (Ibid.) “But 

they need not be present in the same degree.” (Ibid.) “[T]he more 

substantively oppressive the contract term, the less evidence of 

procedural unconscionability is required to come to the conclusion 

that the term is unenforceable, and vice versa.” (Ibid.) The

party opposing arbitration bears the burden of proving 

unconscionability. (Tiri, supra, 226 Cal.App.4th at p. 244.) 

As we discussed, when challenging the enforceability of a 

delegation clause, “any claim of unconscionability must be 

11 The delegation clause here did not use the term “exclusive 

authority,” but the arbitrator’s exclusive 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 dispute.” (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 concluding substantial evidence 

supports the trial court’s implied finding that the delegation 

clause was procedurally unconscionable. An arbitration 

agreement imposed as a condition 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 [adhesive contract is a 

standardized contract that, “ ‘imposed and drafted by the party

of superior strength, relegates to the subscribing party only the 

opportunity to adhere to the contract or reject it’ ”]; Baltazar v. 

Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244 [adhesive contracts 

“ ‘contain a degree of procedural unconscionability even without 

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 therefrom, we consider the evidence 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 specifically address it in 

her opposition to defendants’ petition. As defendants’ reliance on 

the superseded arbitration agreements as a “backup” if the DRA 

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

we find Zaklit did not forfeit her challenge to the delegation 

clause.
21

those aspects of the determination for substantial evidence.” 

(Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89.)

Zaklit declared she was told to complete and sign several 

“new-hire documents” before she could begin work. The record 

shows the DRA was one of the new-hire documents electronically 

provided to Zaklit for her signature. She declared she did 

not recall signing any arbitration agreement and “was never

informed nor aware” that she “possibly” was signing an 

arbitration agreement. Zaklit also averred: she “felt pressure 

to click on whatever links, and electronically sign whatever legal 

documents appeared on [her] screen”; because she needed the job, 

she “was not in a position to argue about any of the documents or

to negotiate any terms or even to refuse to sign documents”; she 

had no opportunity to consult with an attorney before signing the 

documents; and no one from Westlake explained the documents 

to her. We can infer the trial court found Zaklit’s testimony 

credible and gave it more weight.

Defendants argued Zaklit’s declaration “reveal[ed] no 

evidence . . . that the arbitration agreement was required on 

a ‘take it or leave it’ basis,” as Zaklit never claimed she asked 

whether “the DRA was required or negotiable” or that anyone 

told her she must sign it as a condition of her employment.

Defendants make a similar argument on appeal. The trial 

court rejected defendants’ counterargument as relating “only 

to plaintiff’s credibility.” We also cannot conclude Zaklit did not

meet her burden by failing to present evidence that she asked

if the DRA were negotiable. (See Tiri, supra, 226 Cal.App.4th

at p. 245 [human resources manager’s statements that employee 

“was never told the agreement was nonnegotiable and that 
22

[employee] never proposed changes fell far short of demonstrating 

an arm’s-length bargaining transaction”].)

Zaklit’s testimony and the documentary evidence in the 

record substantially 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 unconscionability. (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 presented on take-itor-leave-it basis].) Moreover, Zaklit was an unsophisticated

party, having testified she did not know “what arbitration was,” 

who was sent the DRA, with the delegation clause, only a few 

days before her start date among several other documents 

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.” (Aanderud, supra, 

13 Cal.App.5th at p. 895.)

Although we conclude the delegation clause has some 

degree of procedural unconscionability, it nonetheless is valid 

because it is 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 arbitration agreement

that was contract of adhesion demonstrated “some evidence of 

procedural unconscionability, which must be accompanied by a 

high showing of substantive unconscionability in order to result 

in the conclusion that the delegation clause is unenforceable”

but had none and thus was valid].)

Contrary to Zaklit’s contention, the DRA’s delegation clause

does not lack mutuality. Both Westlake and Zaklit are bound by 
23

it equally: “Any issue or dispute” concerning arbitrability—

including applicability or enforceability of the DRA—is subject 

to arbitration, and the arbitrator’s decision “on any 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 this court in Malone, as well as the First 

District in Tiri, concluded similar delegation clauses 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.4th at pp. 1557, 

1570–1571; Tiri, at pp. 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 within 

the DRA itself were substantively unconscionable for lack 

of mutuality: the clause that excludes the right to punitive 

damages or injunctive relief—which defendants sought to sever

—and a provision that excludes claims “by the Company for

injunctive and/or other equitable relief for unfair competition 

and/or the unauthorized disclosure of trade secrets or confidential 

information.” Zaklit, however, does not argue how these 

provisions “as applied to the delegation clause render[ ] that

clause unconscionable by impeding her ability to 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 delegation clause itself is not 

substantively unconscionable, whether or not these provisions 

are unconscionable and cannot be severed from the DRA—
24

rendering the DRA unenforceable—was for the arbitrator, not 

the trial court, to decide. (Tiri, supra, 226 Cal.App.4th at p. 250 

[having determined similar delegation clause was valid, “it 

[would] be for the arbitrator to consider the conscionability of 

the agreement as a whole and its other severable provisions”];

Malone, supra, 226 Cal.App.4th at p. 1571 [determining similar 

delegation clause was not unconscionable and holding trial court 

“did not err in granting employer’s motion to compel arbitration 

to permit the arbitrator to resolve [former employee’s] challenges 

to the validity and enforceability of the arbitration agreement 

as a whole”].)

Finally, Zaklit urges us to find the arbitration agreement

—and apparently the delegation clause itself—substantively 

unconscionable based on the passage of the “Ending Forced 

Arbitration of Sexual Assault and Sexual Harassment Act 

of 2021” (Act), signed into law on March 3, 2022. (Pub.L. 

No. 117-90, 136 Stat. 26.) That statute invalidates predispute 

arbitration agreements that require arbitration of sexual assault 

or sexual harassment claims. (9 U.S.C. § 402(a).)

Zaklit concedes the Act does not apply retroactively but 

contends that, because “the presumptive favorable treatment 

of arbitration clauses supposedly flowing from the Federal 

Arbitration Act clearly no longer applies to arbitration clauses 

related to sexual harassment claims,” we should invalidate the

arbitration agreement here as against public policy. (Citing

Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145 

[unconscionability also concerns terms that “contravene the 

public interest or public policy”].)

We decline. The Act expressly notes it applies to “ ‘any 

dispute or claim that arises or accrues on or after the date of
25

enactment of this Act.’ ” (Hist. notes, 9 U.S.C. § 401; Pub.L. 

No. 117-90, § 3 (Mar. 3, 2022) 136 Stat. 28.) “Such plain 

language indicates no Congressional intent to apply the . . . Act 

retroactively. While the Act represents a significant sea change

in the enforcement of arbitration provisions, Congress has 

chosen to temper that change through prospective rather than 

retrospective applicability.” (Zinsky v. Russin (W.D.Pa. July 22, 

2022, No. 2:22-cv-547) 2022 WL 2906371 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 nonsignatory defendants

not entitled to compel Zaklit to arbitrate her claims against them 

under the DRA.

4. The nonsignatory defendants can enforce the DRA

Generally, only a party to an arbitration agreement 

may enforce it. (DMS Services, LLC v. Superior Court (2012) 

205 Cal.App.4th 1346, 1352 (DMS Services).) There is no dispute 

that the DRA is between Zaklit—the “Employee”—and Westlake, 

“including any and all subsidiary companies including but not 

limited to Wilshire Consumer Credit, Westlake Flooring, [and] 

Western Funding”—the “Company.” Defendants do not contend

the Hankey defendants are subsidiaries of Westlake but 

generally refer to them in their briefing as “sister companies of 

Westlake.” And, as the trial court noted, unlike the superseded 

Applicant’s Statement, the DRA does not expressly include 

managers or employees in the definition of “Company.” Thus, 

Westlake is the only named defendant that is a party to the DRA.

Both California and federal courts, however, recognize 

nonsignatories to an agreement containing an arbitration 

provision may, in limited circumstances, compel arbitration 
26

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.5th 782, 785–786 (Garcia).) The DRA applies to “any 

and all disputes that may arise out of or already exist related to 

[Zaklit’s] employment or relationship with Employer,” including, 

among others, discrimination claims, tort claims, and claims for 

violation of any statute. (Italics added.) As all of Zaklit’s claims

involve alleged sexual harassment, retaliation, and related 

claims that arose from or were related to her employment, if 

the nonsignatory defendants can enforce the DRA against Zaklit, 

her claims against them unquestionably fall within the scope of

the DRA. Whether a nonsignatory defendant has standing to

enforce an arbitration agreement is a question of law subject 

to de novo review. (Marenco v. DirectTV LLC (2015) 233 

Cal.App.4th 1409, 1416–1417 (Marenco).)

Nonsignatory defendants may compel arbitration under 

theories of agency and equitable estoppel,13 and as third party 

13 The nonsignatory defendants appear to assert they can

compel arbitration under the doctrine of equitable estoppel 

because all of Zaklit’s causes of action against them and Westlake 

“are intimately founded in and intertwined with the employer’s 

obligations.” That doctrine applies when “ ‘the causes of action

against the nonsignatory are “intimately founded in and 

intertwined” with the underlying contract obligations.’ ” (Garcia, 

supra, 11 Cal.App.5th at p. 786, italics added.) Although Zaklit’s 

claims are based on obligations her alleged joint employers owed 

her as their employee, they are not founded on, for example, an 

employment agreement that contained an arbitration provision. 

Rather, the DRA is a stand-alone arbitration agreement. As 

plaintiff’s claims do not arise from a contract, the doctrine of

equitable estoppel does not apply.
27

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

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

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

to an arbitration agreement to invoke it or be bound by it 

‘generally are based on the existence of a relationship between 

the nonsignatory and the signatory, such as principal and 

agent or employer and employee, where a sufficient “identity 

of interest” exists between them.’ ” (DMS Services, supra, 

205 Cal.App.4th at p. 1353.)

Courts look to traditional principles of contract and 

agency law to determine whether a nonsignatory can enforce 

an arbitration agreement signed by its principal or agent.

(Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 

31 Cal.App.5th 840, 860 (Cohen).) Allegations of an agency 

relationship with a signatory—without more—are generally 

insufficient to allow a nonsignatory defendant to enforce an 

agreement to arbitrate between a signatory defendant and

a plaintiff. (See Barsegian v. Kessler & Kessler (2013) 215 

Cal.App.4th 446, 451 (Barsegian) [rejecting contention that 

plaintiff’s allegation that each of the defendants was the agent 

of the other defendants entitled all defendants “to enforce 

each other’s arbitration agreements,” because “then in every 

multidefendant case in which the complaint contained such 

boilerplate allegations of mutual agency, as long as one defendant 

had entered into an arbitration agreement with the plaintiff, 

every defendant would be able to compel arbitration, regardless 

of how tenuous or nonexistent the connections among the 

defendants might actually be”]; but see Thomas v. Westlake

(2012) 204 Cal.App.4th 605, 614 [nonsignatory defendants could 

enforce arbitration agreement because each was alleged to have 
28

“acted as an agent of [signatory defendant] in connection with 

the acts and omissions” described in the complaint].) 

A nonsignatory defendant, however, may “compel a 

signatory plaintiff to arbitrate where there is a connection 

between the claims alleged against the nonsignatory and its 

agency relationship with a signatory” defendant. (Cohen, supra,

31 Cal.App.5th at p. 863; accord, Garcia, supra, 11 Cal.App.5th 

at p. 788 [nonsignatory defendant could enforce arbitration 

agreement when it was alleged to have been joint employer with 

signatory defendant, and thus agent of signatory “in [its] dealings 

with [plaintiff]”].) Put another way, “[n]onsignatory defendants 

may enforce arbitration agreements ‘where there is sufficient 

identity of parties.’ ” (Marenco, supra, 233 Cal.App.4th at 

p. 1417.)

The trial court here found the complaint’s allegations that 

the defendants were “ ‘all agents of each other’ ” were insufficient 

“to create an agency for the purposes of invoking the arbitration

clause.” The complaint included general boilerplate allegations 

that each defendant acted as the other’s agent, true. But, the 

agency relationship between Westlake and the nonsignatory 

defendants is not simply based on a boilerplate mutual agency 

allegation, as in Barsegian.

As for the nonsignatory corporate defendants, the 

complaint alleged the corporate defendants—Westlake and 

the three Hankey defendants—jointly employed Zaklit and the 

individual defendants “at all times.” The complaint makes no 

distinction between the corporate defendants’ joint employment 

of Zaklit, or of the individual defendants. It also alleged the

corporate defendants jointly failed to develop policies and 

inform their employees about the prohibition of discrimination, 
29

harassment, and retaliation and to take corrective action against, 

or to deter, those who engaged in discrimination, harassment, 

and retaliation; alleged the corporate defendants and their 

“officers, directors, managing agents, managers, and supervisors 

knew, or should have known, of the acts” alleged in the 

complaint, and the corporate defendants approved of or ratified 

those acts. Moreover, every cause of action in the complaint, 

except the cause of action for gender violence alleged against only

Ogbunamiri, is asserted against the corporate defendants jointly.

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

a temporary staffing company—Real Time—hired Garcia and 

assigned him to work for Pexco. (Id. at p. 784.) Garcia signed 

an arbitration agreement with Real Time, but not with Pexco. 

(Ibid.) Garcia sued both Real Time and Pexco (and another 

defendant) for wage and hour violations that occurred during his 

assignment with Pexco, alleging they jointly employed him and 

acted as each other’s agent. (Id. at p. 785.) The appellate court 

concluded Pexco, as a nonsignatory to Real Time’s arbitration 

agreement with Garcia, could compel Garcia to arbitrate his 

claims against it under the agency exception based on Garcia’s 

agency allegations and that the complaint’s causes of action 

alleged identical claims and conduct regarding the workplace 

violations against “[a]ll [d]efendants without any distinction.” 

(Id. at p. 788.)

Zaklit’s complaint not only alleged Westlake and the 

nonsignatory corporate defendants were acting as agents of 

one another but, as in Garcia, the complaint alleges they also 

were her “joint employers fulfilling the same role,” and asserted

identical claims against them based on the identical set of facts 
30

“without any distinction” between them. (Garcia, supra, 11 

Cal.App.5th at p. 788.) 

Zaklit nevertheless argues defendants’ “failure to provide 

evidence as to the elements required for agency is fatal to 

the invocation of agency status.” We disagree. The corporate 

defendants could not be jointly liable to Zaklit for the individual 

defendants’ torts and their own workplace violations—as the 

complaint alleges—unless the corporate defendants were acting 

as each other’s agents in their dealings with their employees—

Zaklit and the individual defendants—as alleged joint employers. 

(See Barsegian, supra, 215 Cal.App.4th at p. 453, fn. 3 

[explaining boilerplate allegations that defendants acted as each 

other’s agents “can be sufficient to support a motion to compel 

arbitration even if the allegation is not treated as a judicial 

admission” when the defendants’ liability was dependent upon 

the boilerplate agency allegation, which was not the case there].)

Moreover, although the court did not mention it in its 

ruling, defendants presented with their petition the declaration 

of the Vice President of Human Resources for Hankey Investment 

Company—Tonia Douglas—who averred Hankey Investment 

Company provides “human resource services” to the Hankey 

Group companies, which include all of the corporate defendants. 

Thus, at the time of Zaklit’s alleged joint employment by the 

corporate defendants, defendant Hankey Investment Company 

was providing human resource services to Westlake, e.g., acting 

as its agent.14 The complaint refers to this relationship. Zaklit 

14 Douglas also declared Hankey Finance Company has no

employees, and, as we noted, defendants assert the Hankey 

Group is simply a name—rather than an actual entity—used 

to refer to the group of associated companies.
31

alleged Douglas was the Vice President of Human Resources, 

that she witnessed sexually harassing conduct directed at Zaklit, 

and that Zaklit reported the individual defendants’ conduct from 

the October 2019 event to Douglas, who essentially did nothing.

And, Zaklit received her new-hire documents from both Hankey 

Investment Company and Westlake.

In any event, Zaklit’s allegations were sufficient to support 

the agency exception, entitling the nonsignatory corporate 

defendants to compel arbitration of Zaklit’s claims under the

DRA.

Zaklit’s allegations against the individual defendants 

similarly establish they were acting as agents of Westlake. 

Beyond the “boilerplate” agency allegation, Zaklit specifically 

alleged the corporate defendants, including Westlake, employed 

the individual defendants as “officers, directors, managing 

agents, managers, and/or supervisors,” and each individual 

defendant held a title reflecting their employment in that 

capacity: the Senior Vice President of Servicing (Renfro), the 

Director of Flooring (Torrez), and the Chief Investment Officer 

(Ogbunamiri).

The complaint also alleged that, when they engaged in 

the alleged sexually harassing conduct—which forms the basis 

of all Zaklit’s causes of action—the individual defendants were 

supervisors under the FEHA, specifically, Government Code 

section 12926, subdivision (t). That section defines “[s]upervisor” 

as “any individual having the authority, in the interest of the

employer, to hire, transfer, suspend, lay off, recall, promote, 

discharge, assign, reward, or discipline other employees, or the 

responsibility to direct them, or to adjust their grievances, or 

effectively to recommend that action, if, in connection with the 
32

foregoing, the exercise of that authority is not of a merely routine 

or clerical nature, but requires the use of independent judgment.” 

(Gov. Code, § 12926, subd. (t), italics added.) In other words, the 

individual defendants had authority to act on behalf of Westlake 

and the other corporate defendants. And, as we discussed, the 

complaint alleged the corporate defendants “approved” of the acts 

alleged in the complaint or “ratified them after learning of them.”

Moreover, although the complaint does not use the words 

“acted within the scope of their employment,” Zaklit’s causes of 

action all are based on sexually harassing conduct the individual 

defendants allegedly engaged in within the course and scope

of their employment by Westlake (and the other corporate 

defendants): in the workplace generally, and at a three-day

event the corporate defendants held for employees at a hotel in 

October 2019. 

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

sexual harassment alleged her job, other terms of her 

employment, and the like, were “expressly or impliedly 

contingent 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 defendants were acting as supervisors. 

Similarly, Zaklit’s second 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 and “created an oppressive, hostile, intimidating, 

and/or offensive work environment” for her, and affected her 

“emotional well-being and her ability to do her job.”

Zaklit’s tort claims for intentional infliction of emotional 

distress, battery, implied threat of violence in violation of Civil 
33

Code section 51.7, and gender violence under Civil Code 

section 52.4 also all are based on the individual defendants’ 

conduct at the October 2019 work event where they allegedly 

had authority to act for Westlake (and the other corporate 

defendants) as supervisors, managers, managing agents, officers, 

or directors.

Accordingly, the complaint’s allegations are sufficient to

establish the individual defendants were acting as Westlake’s 

agents, entitling them to enforce the DRA against Zaklit. (See 

24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th

1199, 1210–1211 [allegations individual defendants allegedly 

sexually harassed plaintiff within the course and scope of 

their employment established they were acting as defendant 

employer’s agents and thus they were entitled to summary 

judgment on ground the claims against them were subject to 

arbitration agreement between the plaintiff and defendant 

employer].)

5. We decline to consider the validity of the superseded 

agreements

Finally, defendants contend that, if the arbitrator 

determines the DRA is unenforceable based on unconscionability, 

“it would be appropriate for the trial court to enforce either of 

the . . . two preceding arbitration agreements.” Defendants argue 

a finding that the DRA is unconscionable and thus void would 

“vitiate the entire agreement, including the superseding clause,” 

essentially reinstating the superseded arbitration agreements. 

Defendants did not make this argument in the trial court, 

although, as we discussed, they did argue the Application and/or 

Applicant’s Statement also compelled Zaklit to arbitrate her 

claims if the DRA were unenforceable. 
34

Defendants’ claim is not ripe. It would be premature 

for us to determine whether the trial court should enforce the 

arbitration provisions under the Application and Applicant’s 

Statement when the arbitrator has yet to determine the validity 

of the DRA. We note, however, as Zaklit argues, the authorities

on which defendants rely to support their assertion that the 

“superseding clause” would be “vitiate[ed]”—and the earlier 

arbitration agreements reinstated—if the arbitrator finds 

the DRA is unconscionable—do not stand for that proposition. 

(See Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 29 [“If a 

contract includes an arbitration agreement, and grounds exist 

to revoke the entire contract, such grounds would also vitiate 

the arbitration agreement. Thus, if an otherwise enforceable 

arbitration agreement is contained in an illegal contract, a party 

may avoid arbitration altogether.”]; California State Council 

of Carpenters v. Superior Court (1970) 11 Cal.App.3d 144, 157 

[“illegality in a contract containing a provision for arbitration, 

in order to vitiate such provision, must be such as renders the 

entire contract illegal and unenforceable; and that a claim of 

illegality of one of the incidental clauses of the contract that falls 

short of affording ground for revocation of the contract is itself 

subject to arbitration”]; Bianco v. Superior Court of Los Angeles 

County (1968) 265 Cal.App.2d 126, 130 [plaintiff not required 

to arbitrate where entire agreement found revocable based on

illegality].)
35

DISPOSITION

The order denying defendants’ petition to compel 

arbitration is reversed. On remand, the trial court shall stay 

the current litigation and allow Westlake to choose an arbitrator 

from 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 occur 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, Acting P. J.

NGUYEN (KIM), J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.