Filed 10/19/23 Reynante v. Home Depot U.S.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or 

ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CORWIN REYNANTE,

Plaintiff and Respondent,

v.

HOME DEPOT U.S.A., INC. et al.,

Defendants and Appellants.

 D082218

 (Super. Ct. No. CVRI2101570)

APPEAL from an order of the Superior Court of Riverside, Craig G. 

Riemer, Judge. Reversed and remanded.

Ogletree, Deakins, Nash, Smoak & Stewart, Evan R. Moses, 

Christopher W. Decker, and Kathleen J. Choi for Defendants and Appellants 

Home Depot U.S.A., Inc. and The Home Depot, Inc.

Fisher & Phillips, Kristen Nesbit, and Shaun J. Voigt for Defendant 

and Appellant Sunrun, Inc.

The Graves Firm, Allen Graves, and Jacqueline Treu for Plaintiff and 

Respondent Corwin Reynante.
2

I

INTRODUCTION

Sunrun, Inc. (Sunrun), Home Depot U.S.A., Inc., and The Home Depot, 

Inc. (together with Home Depot U.S.A., Home Depot) appeal an order 

denying their motion to compel arbitration of Private Attorneys General Act 

of 2004 (Lab. Code, § 2698 et seq.; PAGA) claims filed against them by 

putative employee Corwin Reynante. The trial court denied the motion 

because the parties’ arbitration agreement has a class and representative 

action waiver requiring Reynante to arbitrate his employment-related claims

with the defendants strictly on an individual basis. 

At the time the trial court denied the motion to compel arbitration, 

California state law prohibited predispute contractual waivers of an 

employee’s right to bring a PAGA claim on behalf of the State in any forum. 

(Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 

382–383 (Iskanian).) It also prohibited predispute agreements to split PAGA 

claims into bifurcated proceedings—for example, agreements to arbitrate 

Labor Code violations personally suffered by the plaintiff (so-called individual 

claims) and to litigate Labor Code violations arising out of events involving 

other employees (so-called representative claims) in court. (Id. at p. 383.)

After the trial court denied the motion to compel arbitration, the 

United States Supreme Court issued Viking River Cruises, Inc. v. Moriana 

(2022) 596 U.S. __, 142 S.Ct. 1906 (Viking River). Viking River upheld the 

state law rule prohibiting categorical PAGA waivers, but held the Federal 

Arbitration Act (9 U.S.C. § 1, et seq.; FAA) preempts the state law rule 

banning the splitting of PAGA claims into separate fora. In this appeal, we 

must decide whether the trial court’s stated basis for denying the motion to 

compel arbitration survives in light of Viking River. We conclude it does not. 
3

Further, Reynante has not supplied us with a sufficient justification to affirm

the denial order on other grounds. 

However, there are factual disagreements concerning the 

circumstances under which the parties executed the arbitration agreement 

and the trial court did not render findings on these disputed issues of 

contract formation. Thus, we reverse the order denying the motion to compel 

arbitration and remand the matter so the trial court may determine, in the 

first instance, whether the parties entered into a valid arbitration agreement. 

If the court finds the parties entered into an enforceable agreement to 

arbitrate, it must compel arbitration of Reynante’s individual PAGA claims 

consistent with the opinions expressed herein. 

II

BACKGROUND

Sunrun is a company that provides solar panel installation and 

maintenance services to residential homeowners. In December 2019, Sunrun

hired Reynante as a retail sales associate. In this capacity, Reynante sold 

Sunrun products and services at Home Depot home improvement retail 

stores in Hemet and Beaumont. 

When Reynante began working for Sunrun, he was presented with an 

electronic employment and arbitration contract (hereafter, the arbitration 

agreement). According to Sunrun, Reynante scrolled through the arbitration 

agreement and clicked a checkbox next to a signature block at the bottom of 

the contract. The signature block was located beneath language stating the 

employee read and understood the contract and had an opportunity to discuss 

it with legal counsel. 

The arbitration agreement requires Reynante and Sunrun to arbitrate 

“any and all” disputes or claims arising out of, relating to, or resulting from 
4

Reynante’s employment with Sunrun. It has a class and representative 

action waiver that states, “We expressly intend and agree that, to the 

maximum extent permitted by law, (1) class, collective, and representative 

action procedures shall not be invoked, nor will they apply, in any arbitration 

pursuant to this agreement; (2) I will not assert class, collective, or 

representative action claims against [Sunrun] in arbitration or any other 

forum; and (3) I shall only submit my own individual claims in arbitration 

and will not seek to represent the interests of any other person.” Thereafter, 

it states, “Notwithstanding the foregoing, I understand that I may bring a 

proceeding as a Private Attorney General as permitted by law ....”1

The arbitration agreement is subject to a severability clause that reads, 

“If any provision of this Agreement is held to be invalid or unenforceable for 

any reason, the other provisions of this Agreement will remain enforceable 

and the invalid or unenforceable provision will be deemed modified so that it 

is valid and enforceable to the maximum extent permitted by law.” 

In 2021, Reynante filed a class and representative action complaint 

against Sunrun and Home Depot in the Superior Court of California, County 

of Riverside. He alleged the defendants failed to notify him and other 

employees that workers at their jobsites tested positive for COVID-19. In the 

operative third amended complaint, he omitted the class claims and asserted

two PAGA claims against the defendants. The claims sought civil penalties

for violations of Labor Code section 6409.6 and a Cal-OSHA regulation

(former Cal. Code Regs., tit. 8, § 3205, subd. (c)(3)(B)(3)) requiring employers 

to give written notice to employees of potential COVID-19 exposure and to 

1 The contract language quoted in this paragraph is capitalized and 

bolded in the arbitration agreement. The capitalization and bolding in the 

arbitration agreement have been omitted here and throughout the remainder 

of this opinion.
5

implement written procedures mandating that notice be given to potentially

exposed employees.

Sunrun moved to compel individual arbitration of the PAGA claims and 

to strike the claims to the extent they were representative in nature. It

acknowledged that, under Iskanian, supra, 59 Cal.4th 348, state law 

prohibited the enforcement of a predispute waiver of an employee’s right to 

bring a PAGA claim as a proxy of the State. However, Sunrun predicted the 

Iskanian rule banning categorial PAGA waivers would be overruled or 

limited in Viking River, a case that was pending before the United States

Supreme Court. Sunrun asked the court to dismiss or stay the case pending 

the completion of individual arbitration or, at minimum, to stay the action 

until a decision in Viking River. Home Depot joined Sunrun’s motion.2

Together with its motion, Sunrun filed a declaration from its Senior 

Director of Talent Acquisition, Megan Lessard. She averred that when 

Sunrun hired Reynante, new hires were required to create an account with a 

third-party recruiting company, “scroll through” an electronic version of the

arbitration contract (which was “opened separately in a window with a scroll 

bar”), and click on a checkbox next to a signature block, which generated the 

employee’s electronic signature and filled in the contract execution date. She 

said that Sunrun’s records showed Reynante electronically signed the 

2 Home Depot argued it was entitled to enforce the arbitration 

agreement, despite being a nonsignatory to the agreement, because: 

(1) Reynante alleged in the operative complaint that Home Depot was an 

agent of signatory Sunrun; (2) Reynante’s allegations against Home Depot 

were intimately founded in, and intertwined with, the underlying 

employment and arbitration agreement, which estopped Reynante from 

avoiding his obligation to arbitrate with Home Depot; and (3) Home Depot 

was a third-party beneficiary of the arbitration agreement. Reynante has not 

challenged these arguments on appeal or, as far as we can discern from the 

record, in the trial court.
6

arbitration agreement on December 16, 2019. The Lessard declaration had 

two exhibits attached to it: (1) an unsigned copy of the arbitration 

agreement; and (2) a printout of Reynante’s personnel file, which allegedly

reflected the date and time his signed arbitration agreement was transmitted 

to Sunrun. 

Reynante opposed the motion to compel individual arbitration of his 

PAGA claims on several grounds. Of relevance here, he asserted Sunrun 

failed to establish the existence of a valid arbitration agreement. In 

particular, he argued Lessard was “simply wrong” in claiming he was 

required to electronically scroll through the arbitration agreement before he 

clicked a checkbox next to its signature block. He asserted he did not

manifest his assent to the arbitration agreement merely by clicking the

checkbox because the agreement contained no “language indicating that 

Plaintiff agreed to anything.” (Italics added.) Further, he requested an

opportunity to propound discovery on the defendants concerning whether the 

parties formed a valid agreement to arbitrate. In addition to raising these 

contract formation arguments, Reynante contended the Iskanian anti-waiver 

rule prohibited enforcement of any predispute PAGA waiver. 

Sunrun filed a reply in support of its motion. It argued Reynante 

accepted the arbitration agreement by affixing his electronic signature at the 

bottom of the contract, which in its opening paragraph said, “I agree to the 

terms of this Employee Confidentiality, Inventions Assignment and 

Arbitration Agreement (the ‘Agreement’).” Sunrun also reiterated its 

assertion that Viking River would soon dictate whether courts may enforce 

predispute waivers of an employee’s right to bring a PAGA claim. 

The court denied the motion to compel arbitration in a brief order that

cited Iskanian, supra, 59 Cal.4th 348, but undertook no further analysis and 
7

made no factual findings. It also denied Sunrun’s request for a stay. Three 

weeks later, the United States Supreme Court issued its Viking River 

decision, which partially abrogated Iskanian, as discussed below.3

III

DISCUSSION

A. The Denial Order Cannot be Affirmed Based on the PAGA Waiver

1. PAGA

“The Legislature enacted PAGA almost two decades ago in response to 

widespread violations of the Labor Code and significant underenforcement of 

those laws. [Citations.] Before PAGA’s enactment, tools for enforcing the 

Labor Code were limited. Some statutes allowed employees to sue their 

employers for damages resulting from Labor Code violations such as unpaid 

wages. [Citations.] Other Labor Code violations were punishable only as 

criminal misdemeanors, which local prosecutors tended not to prioritize.

[Citation.] Additionally, several statutes provided civil penalties for Labor 

Code violations, but only state labor law enforcement agencies could bring an 

action for civil penalties and those agencies lacked sufficient enforcement 

resources.” (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1116 

(Adolph).)

“To address these shortcomings, the Legislature enacted PAGA to 

create new civil penalties for various Labor Code violations and ‘ “to allow 

aggrieved employees, acting as private attorneys general, to recover [those] 

penalties.” ’ [Citation.] An employee who brings a PAGA action to recover 

civil penalties acts ‘ “as the proxy or agent” ’ of the state. [Citations.] ‘PAGA 

3 In a separate noticed motion, the defendants asked the court to stay the 

litigation pending a decision in Viking River. The court denied the stay 

motion in an order that is not challenged in this appeal. 
8

is designed primarily to benefit the general public, not the party bringing the 

action.’ [Citation.] Penalties recovered are dedicated largely ‘to public use ... 

instead of being awarded entirely to a private plaintiff.’ ” (Adolph, supra, 14 

Cal.5th at p. 1116.)

“To have standing to bring a PAGA action, a plaintiff must be an 

‘aggrieved employee,’ which the statute defines as ‘any person who was 

employed by the alleged violator and against whom one or more of the alleged 

violations was committed.’ [Citation.] An aggrieved employee becomes 

deputized to prosecute Labor Code violations once he or she has complied 

with PAGA’s notice requirements. [Citation.] Before filing suit, the 

aggrieved employee ‘must notify the employer and the [Labor and Workforce 

Development Agency (LWDA)] of the specific labor violations alleged, along 

with the facts and theories supporting the claim.’ [Citations.] ‘If the agency 

does not investigate, does not issue a citation, or fails to respond to the notice 

within 65 days, the employee may sue.’ [Citations.] ‘The notice requirement

allows the relevant state agency “to decide whether to allocate scarce 

resources to an investigation” ’ [citation] or instead to deputize the aggrieved 

employee to pursue sanctions on the state’s behalf. Once deputized, the 

aggrieved employee has authority to ‘seek any civil penalties the state can.’ ” 

(Adolph, supra, 14 Cal.5th at pp. 1116–1117.) Because the aggrieved 

employee may seek any civil penalties the State can, the employee “may seek 

penalties not only for the Labor Code violation that affected him or her, but 

also for different violations that affected other employees.” (Huff v. Securitas 

Security Services USA, Inc. (2018) 23 Cal.App.5th 745, 750.)

2. Iskanian

In Iskanian, the California Supreme Court considered the viability of a 

predispute waiver of an employee’s right to bring a PAGA action on behalf of 

the State. The Iskanian court concluded a categorical waiver of the right to 
9

bring a PAGA action in any forum violates state law. (Iskanian, supra, 59 

Cal.4th at pp. 382–383.) According to Iskanian, a blanket PAGA waiver 

“disable[s] one of the primary mechanisms for enforcing the Labor Code” and 

“harm[s] the state’s interests in ... receiving the proceeds of civil penalties 

used to deter violations,” and thus violates public policy.4 (Id. at p. 383.)

In the course of reaching this conclusion, the Iskanian court rejected a 

claim from the defendant-employer that the parties’ agreement should be 

enforced because it “prohibits only representative claims, not individual 

PAGA claims for Labor Code violations that an employee suffered.” 

(Iskanian, supra, 59 Cal.4th at p. 383.) As the Iskanian court explained, 

“whether or not an individual claim is permissible under the PAGA, a 

prohibition of representative claims frustrates the PAGA’s objectives.” (Id. at 

p. 384.) In the wake of Iskanian, California courts, relying in part on the 

Iskanian court’s analysis, determined that state law prohibits an employer 

from “forc[ing] an employee to split a PAGA claim into ‘individual’ and 

‘representative’ components, with each being litigated in a different forum.” 

(Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 421.)

3. Viking River

In Viking River, issued shortly after the trial court denied the 

defendants’ motion to compel arbitration, the United States Supreme Court 

4 In particular, the Iskanian court concluded a waiver of an employee’s

right to assert a PAGA claim violates Civil Code sections 1668 and 3513. 

(Iskanian, supra, 59 Cal.4th at pp. 382–383.) Section 1668 provides, “All 

contracts which have for their object, directly or indirectly, to exempt anyone 

from responsibility for his own fraud, or willful injury to the person or 

property of another, or violation of law, whether willful or negligent, are 

against the policy of the law.” Section 3513 states, “Any one may waive the 

advantage of a law intended solely for his benefit. But a law established for a 

public reason cannot be contravened by a private agreement.”
10

addressed the issue of whether the FAA preempts the rules of state law that 

were articulated and applied in the Iskanian decision and its progeny.5

As the Viking River court explained, PAGA claims are “ ‘representative’ 

in two distinct ways .... [¶] In the first sense, PAGA actions are 

‘representative’ in that they are brought by employees acting as

representatives—that is, as agents or proxies—of the State.” (Viking River, 

supra, 596 U.S. at p. __ [142 S.Ct. at p. 1916].) Viewed through this 

lens,“ ‘ “every PAGA action is ... representative” ’ and ‘[t]here is no individual 

component to a PAGA action,’ [citations], because every PAGA claim is 

asserted in a representative capacity.” (Ibid.) However, PAGA claims can

also be considered “ ‘representative’ when they are predicated on code 

violations sustained by other employees.” (Ibid.) Such claims are 

distinguishable from “individual” PAGA claims, which “refer to claims based 

on code violations suffered by the plaintiff.” (Ibid.) In Viking River, the court 

used the terms “representative” and “individual” in the second sense and, as 

noted at the outset of our opinion, we have endeavored to do the same here.

According to Viking River, the Iskanian court articulated two rules of 

law relating to PAGA. “Iskanian’s principal rule prohibits waivers of 

‘representative’ PAGA claims in the first sense. That is, it prevents parties 

from waiving representative standing to bring PAGA claims in a judicial or 

arbitral forum.” (Viking River, supra, 596 U.S. at p. __ [142 S.Ct. at 

p. 1916].) The Viking River court concluded the FAA does not preempt this

rule, which remains good law today. (Id. at pp. __–__ [142 S.Ct. at pp. 1916–

1917]; Adolph, supra, 14 Cal.5th at p. 1117 [“In Iskanian, we held that a 

5 The FAA provides that a “written provision in ... a contract ... to settle 

by arbitration a controversy thereafter arising ... shall be valid, irrevocable, 

and enforceable save upon such grounds as exist at law or in equity for the 

revocation of any contract ....” (9 U.S.C., § 2.)
11

predispute categorical waiver of the right to bring a PAGA action is 

unenforceable [citation]—a rule that Viking River left undisturbed”].)

Iskanian “also adopted a secondary rule that invalidates agreements to 

separately arbitrate or litigate ‘individual PAGA claims for Labor Code 

violations that an employee suffered,’ on the theory that resolving victimspecific claims in separate arbitrations does not serve the deterrent purpose 

of PAGA.” (Viking River, supra, 596 U.S. at p. __ [142 S.Ct. at pp. 1916–

1917].) Viking River held that Iskanian’s anti-splitting rule, unlike its 

prohibition on predispute PAGA waivers, violates the FAA. It “unduly 

circumscribes the freedom of parties to determine ‘the issues subject to 

arbitration’ and ‘the rules by which they will arbitrate,’ [citation], and does so 

in a way that violates the fundamental principle that ‘arbitration is a matter 

of consent,’ [citation].” (Id. at p. __ [142 S.Ct. at p. 1923].) “If the parties 

agree to arbitrate ‘individual’ PAGA claims based on personally sustained 

violations, [the anti-splitting rule] allows the aggrieved employee to abrogate 

that agreement after the fact and demand either judicial proceedings or an 

arbitral proceeding that exceeds the scope jointly intended by the parties. 

The only way for parties to agree to arbitrate one of an employee’s PAGA 

claims is to also ‘agree’ to arbitrate all other PAGA claims in the same 

arbitral proceeding.” (Id. at p. __ [142 S.Ct. at p. 1924].) 

According to the Viking River court, Iskanian’s anti-splitting rule

effectively “coerce[s] parties into withholding PAGA claims from arbitration.” 

(Viking River, supra, 596 U.S. at p. __ [142 S.Ct. at p. 1924].) It does so 

because representative PAGA claims permit “plaintiffs to unite a massive 

number of claims in a single-package suit.” (Ibid.) However, “ ‘[a]rbitration 

is poorly suited to the higher stakes’ of massive-scale disputes of this kind,” 

since it lacks the type of “ ‘multilayered review’ ” that is critical for error 
12

correction, while “entail[ing] the same ‘risk of “in terrorem” settlements that 

class actions entail.’ ” (Ibid.) “As a result, Iskanian’s indivisibility rule 

effectively coerces parties to opt for a judicial forum rather than ‘forgo[ing] 

the procedural rigor and appellate review of the courts in order to realize the 

benefits of private dispute resolution.’ ” (Ibid.)

After reaching these conclusions, the Viking River court turned to the 

facts of the case before it. The case involved an arbitration agreement 

requiring an employee (Moriana) to arbitrate virtually all disputes arising 

out of her employment with her employer (Viking). (Viking River, supra, 596

U.S. at p. __ [142 S.Ct. at p. 1911].) The arbitration agreement included a 

class and representative action waiver prohibiting the parties from bringing 

any dispute as a class, collective, or representative PAGA claim, and it stated

that any class, collective, representative, or PAGA action would 

presumptively be litigated in court if the waiver was found invalid. (Ibid.) It 

also included a severability clause providing that, “if any ‘portion’ of the 

waiver remained valid, it would be ‘enforced in arbitration.’ ” (Id. at p. __

[142 S.Ct. at p. 1916].) 

The Viking River court concluded the representative action waiver “was 

invalid if construed as a wholesale waiver of PAGA claims,” under Iskanian’s 

principal rule. (Viking River, supra, 596 U.S. at p. __ [142 S.Ct. at p. 1924].) 

But, in light of the severability clause, “Viking was entitled to enforce the 

agreement insofar as it mandated arbitration of Moriana’s individual PAGA 

claim.” (Id. at p. __ [142 S.Ct. at p. 1925].) Viking was permitted to enforce 

the arbitration agreement in this manner—even though it meant Moriana’s 

PAGA claim would be divided into individual and non-individual components 

in separate fora—because the FAA preempted Iskanian’s anti-splitting rule. 

(Id. at p. __ [142 S.Ct. at p. 1917].) 
13

4. Application

Applying these principles to the arbitration agreement at hand, we 

conclude the trial court erred insofar as it invalidated the arbitration 

agreement in its entirety, rather than severing the invalid portion of the class 

and representative action waiver that prohibited Reynante from asserting a 

representative PAGA claim as a proxy of the State in any forum.

The arbitration agreement requires the parties to resolve “any and all” 

claims or disputes arising out of or relating to Reynante’s employment with 

Sunrun, subject to a class and representative action waiver that contains 

three clauses. The first clause bans “representative action procedures” in 

arbitration, while the second clause prohibits “representative action claims”

in any forum. Read in the context of the comprehensive provision channeling

“any and all” employment-related disputes into arbitration, these clauses 

violate Iskanian’s principal rule by forbidding employees from pursuing

“representative” claims for violations suffered by other employees in 

arbitration or any other forum. The third clause in the waiver compels the 

employee to arbitrate his or her “individual claims” and prohibits the 

employee from representing the interests of “any other person” in arbitration. 

The question we must decide is whether the invalid clauses in the 

waiver may be severed from the remainder of the arbitration agreement. We 

conclude they may be severed. Like the arbitration agreement in Viking 

River, the arbitration agreement at the heart of this appeal is subject to a 

severability clause requiring the enforcement of any valid portion of the 

agreement notwithstanding the presence of an invalid or unenforceable 

provision. In particular, it is subject to a severability clause that states, “If 

any provision of this Agreement is held to be invalid or unenforceable for any 

reason, the other provisions of this Agreement will remain enforceable and 
14

the invalid or unenforceable provision will be deemed modified so that it is 

valid and enforceable to the maximum extent permitted by law.” 

Under Viking River, the portion of the waiver that violates Iskanian’s 

principal rule must be severed and the remainder of the arbitration 

agreement enforced, including the portion of the waiver requiring Reynante 

to arbitrate his individual PAGA claims. (Viking River, supra, 596 U.S. at 

p. __ [142 S.Ct. at p. 1925] [“Based on [the severability] clause, Viking was 

entitled to enforce the agreement insofar as it mandated arbitration of 

Moriana’s individual PAGA claim.”]; see Nickson v. Shemran, Inc. (2023) 90 

Cal.App.5th 121, 130 [severing waiver of employee’s right to assert 

representative PAGA action from remainder of arbitration agreement]; Gregg 

v. Uber Technologies, Inc. (2023) 89 Cal.App.5th 786, 796–801 [severing

arbitration provision prohibiting driver from asserting PAGA claims for 

violations suffered by other drivers, but enforcing agreement to arbitrate 

driver’s individual PAGA claim] (Gregg); Galarsa v. Dolgen California, LLC 

(2023) 88 Cal.App.5th 639, 650 [“Viking River demonstrates that an invalid

waiver of representative claims may be severed from the remainder of an 

arbitration agreement.”].)

Our opinion thus far presupposes that the arbitration agreement and 

the class and representative action waiver therein apply to PAGA claims like 

those Reynante asserted in the operative third amended complaint. 

However, in his appellate brief, Reynante argues the arbitration agreement 

“exempts” PAGA claims. In support of this assertion, he relies on the 

sentence that appears after the class and representative action waiver. That 

sentence states, “Notwithstanding the foregoing, I understand that I may 

bring a proceeding as a Private Attorney General as permitted by law.”
15

According to Reynante, this sentence unambiguously allows an

employee like himself to litigate a representative PAGA claim for Labor Code 

violations suffered by other employees in court. The defendants assert the 

sentence after the class and representative action waiver can, at the very 

least, reasonably be construed to mean that an employee may arbitrate an 

individual PAGA claim for violations he or she personally suffered, despite 

the class and representative action waiver.

“ ‘ “Under California law, ordinary rules of contract interpretation 

apply to arbitration agreements.... ‘ “The fundamental goal of contractual 

interpretation is to give effect to the mutual intention of the parties....” ’ ” ’ ” 

(Western Bagel Co., Inc. v. Superior Court (2021) 66 Cal.App.5th 649, 662

(Western Bagel).) “Under California law, the first step in analyzing the 

meaning of a contract is to determine whether the language is ambiguous—

that is, reasonably susceptible to more than one meaning.” (Eminence 

Healthcare, Inc. v. Centuri Health Ventures, LLC (2022) 74 Cal.App.5th 869, 

879.)

Applying principles of contract interpretation, we conclude the 

contractual language on which Reynante relies does not clearly “exempt” 

PAGA claims from the scope of the arbitration agreement. “The word 

‘proceeding’ can take on ‘different meanings in different contexts,’ ”

(Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 

744, 754), but it is not necessarily synonymous with a “lawsuit in court,” and 

it is capacious enough to encompass arbitration. (See Evid. Code, § 901 

[“ ‘Proceeding’ means any action, hearing, investigation, inquest, or inquiry ...

conducted by a[n] ... arbitrator”].) Further, the language says nothing about

the type of claims an employee may assert in such a “proceeding” while 

serving as a private attorney general—e.g., representative PAGA claims,
16

individual PAGA claims, or both. (See Piplack v. In-N-Out Burgers (2023) 88 

Cal.App.5th 1281, 1288 (Piplack) [“every PAGA action is properly understood 

as a combination of two claims: an ‘individual’ claim, arising from the Labor 

Code violations suffered by the plaintiff or plaintiffs themselves, and a 

‘representative’ claim, arising from violations suffered by other employees”].)

Given this lack of specificity, it is, at the very least, reasonable to 

conclude the parties intended the contractual language at issue to mean that

an employee may pursue an individual PAGA claim in arbitration, despite 

the preceding waiver of the employee’s right to bring a representative action, 

and consistent with the third clause of the waiver permitting the employee to 

submit his “individual claims in arbitration.” That reading is harmonious 

with the arbitration agreement’s expansive requirement that the parties 

must arbitrate “any and all” claims or disputes arising out of Reynante’s

employment with Sunrun. By contrast, Reynante’s interpretation of the 

contractual language at issue stands in tension with this broad mandate. 

“The whole of a contract is to be taken together, so as to give effect to every 

part, if reasonably practicable, each clause helping to interpret the other.” 

(Civ. Code, § 1641; see Gregg, supra, 89 Cal.App.5th at pp. 798–800 [rejecting 

driver’s claim he could litigate individual PAGA claim under provision 

stating, “ ‘any representative action brought under PAGA on behalf of others 

must be litigated in a civil court,’ ” because that claim “overlook[ed]” the 

arbitration agreement’s mandate that the driver must arbitrate all “ ‘disputes 

arising out of or related to [his] relationship with [Uber]’ ”].)

In short, Reynante wishes us to interpret the arbitration agreement as 

if it stated, “Notwithstanding the foregoing, I understand that I may bring a 

proceeding in court as a Private Attorney General in order to assert

representative PAGA claims for Labor Code violations experienced by other 
17

employees.” However, it does not contain this language or anything similar to 

it. “The court does not have the power to create for the parties a contract 

which they did not make, and it cannot insert in the contract language which 

one of the parties now wishes were there.” (Levi Strauss & Co. v. Aetna 

Casualty & Surety Co. (1986) 184 Cal.App.3d 1479, 1486.)

Further, to the extent the contractual language is ambiguous, the 

ambiguity concerns the scope of the arbitration agreement. It is wellestablished that, “in applying general state-law principles of contract 

interpretation to the interpretation of an arbitration agreement within the 

scope of the Act, [citation], due regard must be given to the federal policy 

favoring arbitration, and ambiguities as to the scope of the arbitration clause 

itself resolved in favor of arbitration.” (Volt Information Sciences, Inc. v. 

Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 

475–476; Moses H. Cone Memorial Hosp. v. Mercury Construction Corp. 

(1983) 460 U.S. 1, 24–25 [“The [FAA] establishes that, as a matter of federal 

law, any doubts concerning the scope of arbitrable issues should be resolved 

in favor of arbitration, whether the problem at hand is the construction of the 

contract language itself or an allegation of waiver, delay, or a like defense to 

arbitrability.”]; see also Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 

233, 247 [“under state law as under federal law, when the allocation of a 

matter to arbitration or the courts is uncertain, we resolve all doubts in favor 

of arbitration”]; Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 397 [“ ‘ “In 

California, the general rule is that arbitration should be upheld unless it can 

be said with assurance that an arbitration clause is not susceptible to an 
18

interpretation covering the asserted dispute.” ’ ”].) These principles require 

us to construe the arbitration agreement to encompass PAGA claims.6

In sum, we interpret the parties’ arbitration agreement—which broadly 

requires arbitration of “any and all” claims and disputes arising out of or 

relating to Reynante’s employment with Sunrun—as encompassing the 

PAGA claims Reynante asserts in the operative third amended complaint. 

The agreement has a waiver that precludes Reynante from asserting 

representative PAGA claims in arbitration or in any other forum—a waiver 

that runs afoul of Iskanian’s principal holding, which remains good law. 

However, in light of the severability clause applicable to the arbitration 

agreement, the invalid waiver may be severed from the agreement and 

Reynante’s individual PAGA claim ought to be compelled into arbitration.

6 Reynante urges us to apply the interpretive rule of contra proferentem

(“against the drafter”) to construe any ambiguity against the defendants 

because one of the defendants, Sunrun, drafted the arbitration agreement. 

We decline this invitation. “The rule applies ‘only as a last resort’ when the 

meaning of a provision remains ambiguous after exhausting the ordinary 

methods of interpretation.” (Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 

1407, 1417 (Lamps Plus).) It provides a tie-breaking “default rule based on 

public policy considerations; ‘it can scarcely be said to be designed to 

ascertain the meanings attached by the parties.’ ” (Ibid.)

We need not apply the tiebreaker here, as “the FAA provides the 

default rule for resolving ... [any] ambiguities in [the] arbitration 

agreement[]”—“ambiguities about the scope of an arbitration agreement must 

be resolved in favor of arbitration.” (Lamps Plus, supra, 139 S.Ct. at p. 1418

[FAA preempted use of the contra proferentem to construe ambiguous 

language in arbitration agreement to permit class arbitration]; see also 

Western Bagel, supra, 66 Cal.App.5th at pp. 654–655, 663–666 [declining to 

apply contra proferentem to construe ambiguity in arbitration agreement and 

instead “employ[ing] the FAA’s default rule that any ambiguities about the 

scope of an arbitration agreement must be resolved in favor of arbitration”].)
19

B. The Denial Order Cannot be Affirmed for Alternative Reasons

1. The Arbitration Agreement Compels Arbitration of Any and All 

Disputes Arising out of the Parties’ Employment Relationship

In addition to the arguments just discussed, which mainly concern the 

class and representative action waiver, Reynante claims the court properly 

denied the motion to compel arbitration because the arbitration agreement 

requires the parties to arbitrate disputes between themselves arising out of 

the parties’ employment relationship, but a PAGA action is not a dispute 

between an employer and an employee. Rather, it is a dispute between an 

employer and an absent principal—the State. (Arias v. Superior Court (2009) 

46 Cal.4th 969, 986 [a plaintiff brings a PAGA claim “as the proxy or agent of 

the state’s labor law enforcement agencies”].) We are not convinced.

As Reynante notes, the arbitration agreement defines the scope of 

arbitrable matters to include employment-related disputes between the 

employer and the employee (“The Company and I agree to arbitrate before a 

neutral arbitrator any and all controversies, claims, or disputes between us ... 

arising out of, relating to, or resulting from my employment or relationship 

with the company or the termination of my employment or relationship with 

the company ....”). But its reach is not so limited. On the contrary, it

elsewhere requires the parties to submit to arbitration any and all disputes 

arising out of or relating to Reynante’s employment with Sunrun, without 

specifying the parties to whom such disputes “belong,” or otherwise limiting 

arbitration to disputes between Reynante and Sunrun. The agreement

states, “Disputes that we agree to arbitrate, and for which we thereby agree 

to waive any right to a trial by jury, include any and all existing or future 

disputes or claims arising out of or relating to [Reynante’s] recruitment, 

employment, or separation from employment ....” (Italics added.)
20

As our earlier analysis suggests, a PAGA action is a dispute arising out 

of an employee’s relationship with his or her employer. (Viking River, supra, 

596 U.S. at p. __, fn. 4 [142 S.Ct. at p. 1919, fn. 4].) “The contractual 

relationship between the parties is a but-for cause of any justiciable legal 

controversy between the parties under PAGA, and ‘arising out of’ language 

normally refers to a causal relationship.” (Ibid.; see Khalatian v. Prime Time 

Shuttle, Inc. (2015) 237 Cal.App.4th 651, 659 [“The language ‘arising out of or 

relating to’ as used in the parties’ arbitration provision is generally 

considered a broad provision.”].) That is certainly true here, as Reynante 

maintains that he is an aggrieved employee with standing to pursue his 

claims because, by virtue of his employment by the defendants, he suffered 

violations of a statute and an executive regulation requiring the defendants

to give him notice of possible COVID-19 exposure.

Because the arbitration agreement broadly requires the parties to 

submit “any and all” disputes arising out of or relating to Reynante’s 

employment, and the PAGA claims asserted in the operative complaint fall 

within this scope of claims, we reject Reynante’s argument that we should

affirm the denial order based solely on the fact Reynante will be acting as a

state proxy while prosecuting his PAGA claims against the defendants.

2. Factual Disputes Exist Concerning Contract Formation

Reynante also urges us to affirm the denial order on grounds that the 

parties never formed an agreement to arbitrate their employment-related 

disputes. The defendants argue the matter should be remanded because the 

issue of contract formation presents disputed factual issues that must be

resolved in the first instance by the trial court, which did not render any 

findings about whether the parties entered into an agreement to arbitrate. 

We agree with the defendants that remand is the proper course.
21

“ ‘The right to arbitration depends upon contract; a petition to compel 

arbitration is simply a suit in equity seeking specific performance of that 

contract.’ ” (City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407.) “[A] 

court, before granting a petition to compel arbitration, must determine the 

factual issue of ‘the existence or validity of the arbitration agreement.’ ” 

(Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219.) “Whether the parties 

formed a valid agreement to arbitrate is determined under general California 

contract law.” (Vista, at p. 407.) “ ‘The petitioner [seeking arbitration] bears 

the burden of proving the existence of a valid arbitration agreement by a 

preponderance of the evidence, while a party opposing the petition bears the 

burden of proving by a preponderance of the evidence any fact necessary to 

its defense. [Citation.] The trial court sits as the trier of fact, weighing all 

the affidavits, declarations, and other documentary evidence, and any oral 

testimony the court may receive at its discretion, to reach a final 

determination.’ ” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 

674, 685–686; see Vista, at p. 407 [“when ruling on a petition to compel 

arbitration, the superior court may consider evidence on factual issues such 

as contract formation”].)

Here, the parties provide conflicting accounts of the circumstances 

under which the arbitration agreement was presented to Reynante. Relying 

on the declaration submitted by Lessard, Sunrun’s Senior Director of Talent 

Acquisition, the defendants claim Reynante was required to click open an 

electronic version of the arbitration agreement, physically scroll to the bottom 

of the contract, and click a checkbox field next to a signature block, which 

generated an electronic signature and date on the contract. 

Reynante disputes the defendants’ description of “the way in which the 

arbitration agreement was presented to [him].” This claim echoes fact-laden 
22

arguments he made in the proceedings below, where he contended Lessard

was “simply wrong” when she stated he was required to physically scroll 

through the arbitration agreement before he accepted it. He claimed his 

personnel file (an exhibit to the Lessard declaration) indicated he 

electronically signed multiple onboarding documents simultaneously, which 

“directly contradicted” the defendants’ assertion he was “required to scroll 

through each document before clicking to accept.” Further, he asked for a 

chance to propound discovery requests pertaining to contract formation. 

Given the parties’ disputes concerning the circumstances of contract 

formation, we remand the matter for the trial court to determine whether the 

parties entered into an enforceable agreement to arbitrate.7 (See Piplack, 

supra, 88 Cal.App.5th at p. 1290 [remanding matter for trial court to resolve

disputes relating to formation and disaffirmance of arbitration agreement]; 

accord Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1146

[remanding matter for trial court to conduct “fact-specific inquiry” of 

circumstances under which arbitration agreement was formed].)

7 On appeal, Reynante argues that the trial court should not dismiss his 

representative PAGA claims if it compels arbitration of his individual PAGA 

claims. We do not address this issue, which is both premature and 

unnecessary to the disposition of this appeal.
23

IV

DISPOSITION

The order denying the motion to compel arbitration is reversed. The 

matter is remanded for further proceedings consistent with the opinions 

expressed herein. The trial court may, in its discretion, consider any requests 

by the parties to submit further evidence on any disputed factual issues.

McCONNELL, P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.