1

Filed 6/27/22 Ramirez v. Pacific Bay Masonry CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JUAN RAMIREZ,

Plaintiff and Respondent,

v.

PACIFIC BAY MASONRY, INC.,

Defendant and Appellant.

 A163316

 (Alameda County Super. Ct.

 No. HG21093508)

Plaintiff Juan Ramirez and his son Juan Naranjo filed a class action 

lawsuit alleging various wage-and-hour claims and violations of California’s 

Unfair Competition Law against their former employer Pacific Bay Masonry, 

Inc. (Pacific Bay). Pacific Bay moved to compel arbitration pursuant to the 

arbitration provision contained in the plaintiffs’ employment agreements. 

The trial court granted the motion as to Naranjo only.

1 In denying the 

motion as to Ramirez, the trial court found that the arbitration provision 

contained “minimal” substantive unconscionability, but “significant”

procedural unconscionability. 

1 Naranjo is thus not a party to this appeal. (Reyes v. Macy’s, Inc. 

(2011) 202 Cal.App.4th 1119, 1122 [order granting motion to compel 

arbitration is not an appealable order].)
2

In this appeal, Pacific Bay challenges the denial of its motion to compel 

arbitration as to Ramirez. Ramirez responds by abandoning the substantive 

unconscionability argument accepted by the trial court, and instead 

contending that the agreement was unconscionable because it (1) compels 

arbitration of administrative wage claims; (2) bars claims under the Labor 

Code Private Attorneys General Act of 2004 (§ 2698 et seq.) (PAGA); and 

(3) bars class claims. We reject these arguments and conclude that Ramirez

failed to satisfy his burden to show the arbitration agreement was 

substantively unconscionable. We reverse on this basis and remand for 

further proceedings consistent with this opinion.

BACKGROUND

Ramirez worked as a mason for Pacific Bay from 2017 to 2019. Naranjo 

also worked for Pacific Bay during the same time period as a hod carrier. 

A. Arbitration Agreement

At the start of their employment, Ramirez and Naranjo each signed an 

“Employment, Confidential Information, and Arbitration Agreement”

(Agreement). Section 9 of the Agreement is entitled “Arbitration and 

Equitable Relief” and provides, in relevant part: “COMPANY AND I 

BOTH AGREE THAT ANY AND ALL DISPUTES, CLAIMS, OR CAUSES 

OF ACTION, IN LAW OR EQUITY, ARISING FROM OR RELATING TO 

THE ENFORCEMENT, BREACH, PERFORMANCE . . . OF THIS 

AGREEMENT, OUR EMPLOYMENT RELATIONSHIP, OR THE 

TERMINATION OF OUR EMPLOYMENT RELATIONSHIP SHALL BE 

RESOLVED, TO THE FULLEST EXTENT PERMITTED BY LAW, BY 

FINAL, BINDING AND CONFIDENTIAL ARBITRATION IN SANTA 

CLARA COUNTY, CALIFORNIA CONDUCTED BEFORE A SINGLE 

ARBITRATOR BY JAMS, INC. (‘JAMS’) OR ITS SUCCESSOR, UNDER THE 
3

THEN APPLICABLE JAMS RULES.” It continues: “BY AGREEING TO 

THIS ARBITRATION PROCEDURE, BOTH PARTIES WAIVE THE RIGHT 

TO RESOLVE ANY SUCH DISPUTE THROUGH A TRIAL BY JURY OR 

JUDGE OR BY ADMINISTRATIVE PROCEEDING.” 

The Agreement states that the arbitration provision applies to “THE 

RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE 

EMPLOYER/EMPLOYEE RELATIONSHIP TO THE GREATEST EXTENT 

PERMITTED BY LAW, INCLUDING, BUT NOT LIMITED TO, THE 

FOLLOWING CLAIMS[.]” It then lists three categories of claims, including 

(1) claims for wrongful discharge of employment, breach of contract, breach of 

the covenant of good faith and fair dealing, infliction of emotional distress, 

misrepresentation, interference with contract or prospective economic 

advantage, and defamation; (2) claims for violation of any federal, state, or 

municipal statute; and (3) any and all claims arising out of any other laws 

and regulations relating to employment or employment discrimination. 

B. Class Action Complaint

Ramirez and Naranjo filed a class action lawsuit against Pacific Bay in 

March 2020. They asserted causes of action for (1) failure to pay all wages 

owed semi-monthly (Lab. Code, § 204); (2) failure to pay overtime 

compensation (id. §§ 510, 1194, 1198); (3) failure to reimburse all business 

expenses (id. § 2802); (4) failure to pay minimum wage (id. § 1194 et seq.); 

(5) failure to provide accurate itemized statements (id. § 226); (6) waiting 

time penalties (id. §§ 201–203); (7) failure to provide meal breaks (id.

§§ 226.7 & 512); (8) failure to provide rest periods (id. §§ 226.7 & 512; Cal.

Code Regs., tit. 8, § 11010); and (9) violations of California’s Unfair 

Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.).
4

C. Motion to Compel Arbitration

Pacific Bay moved to compel the plaintiffs to arbitration and strike the 

class claims pursuant to the California Arbitration Act (Code Civ. Proc.

§ 1280 et seq.). It submitted a declaration from Kristine Auerbach, the 

secretary, treasurer, and human resources manager for Pacific Bay. The 

declaration attached copies of the Agreement signed by Ramirez and 

Naranjo. Auerbach had also signed both copies. As for the class claims, 

Pacific Bay argued that the “plain language” of the Agreement “does not 

provide for class arbitration” and “cannot be read as permitting their class 

claims to survive arbitration.” 

Plaintiffs opposed the motion to compel arbitration on the grounds that 

the Agreement was procedurally and substantively unconscionable. On

procedural unconscionability, plaintiffs argued that the Agreement was 

oppressive because (1) it was a contract of adhesion, (2) they were not given 

adequate time to review the Agreement, (3) Ramirez did not read or speak 

English, and (4) it referenced JAMS rules without explanation or attachment. 

On substantive unconscionability, plaintiffs argued that the Agreement was 

one-sided and lacked mutuality because the three categories of claims listed 

in Section 9 of the Agreement “appear[] to emphasize its application to claims 

that employees bring to employers but not . . . claims employers bring to 

employees.” Plaintiffs also argued that the purported class action waiver, as 

claimed by Pacific Bay, “only infringes on the employee’s rights, and is yet 

another one-sided provision meant to tip the scales in defendant’s favor.” 

Ramirez and Naranjo each submitted a declaration in opposition to the 

motion. Ramirez declared that his “main language” was Spanish. He had 

“an extremely limited understanding of English” and did not have “even the 

minimum ability to read or speak English.” He requires an interpreter 
5

“when communicating with English speakers regarding anything but the 

most basic communications” and “cannot read or write English with 

competence for myself.” Ramirez declared that he was given several 

documents to sign at the beginning of his employment, but was not aware of 

their contents. He was not given any copies in Spanish, and no one discussed 

the content of the documents in English or Spanish. He was told to “sign 

them and return them immediately.” He signed the documents because he 

“thought it was a condition of [his] employment.” To his knowledge, he never 

received a copy of the JAMS rules. 

Naranjo declared that he completed tenth grade of high school and 

began working at Pacific Bay when he was 19 years old. He declared that he 

was given documents to sign at the beginning of his employment in an office 

while Auerbach was present along with 10-15 other workers. The entire 

process took an hour to an hour and a half, where Auerbach spent a few 

minutes talking about each document. She explained details “about the 

401(k) plan, health benefits, and jobsite details.” To his knowledge, Auerbach 

never mentioned or explained the arbitration policy. 

On reply, Pacific Bay submitted a supplemental declaration from 

Auerbach. Auerbach declared that she had an onboarding meeting on May 

30, 2017 with 10 to 12 employees, including both Ramirez and Naranjo. She 

declared that she spent an hour going through each page of the employment 

documents, explaining them in both English and Spanish. 

D. Trial Court’s Ruling

The trial court granted the motion as to Naranjo and denied the motion 

as to Ramirez. It first noted the general rule that all material evidence must 

be submitted on the motion with the opening brief and new evidence is not 

permitted on reply. While courts retain discretion to consider reply evidence
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where it fills gaps in the original evidence, it determined that the 

supplemental Auerbach declaration did more than just fill in gaps; it was 

Pacific Bay’s sole evidence regarding procedural unconscionability. The trial 

court thus concluded that it would consider the supplemental Auerbach 

declaration, but give “little weight to the new evidence that defendant

presented in reply.” It specified that this was “not a reflection on 

Ms. Auerbach personally.” The trial court then determined it would decide 

whether the arbitration agreement was enforceable because there was “no 

‘clear and unmistakable’ evidence that the parties intended to delegate the 

issue to the arbitrator.”

2

On procedural unconscionability, the trial court found “some procedural 

unconscionability regarding Naranjo and significant procedural 

unconscionability regarding Ramirez.” The Agreement was a “take it or leave 

it agreement,” indicating some procedural unconscionability. The trial court 

credited the plaintiffs’ declarations in finding that (1) the Agreement was

presented in a meeting where Pacific Bay did not go over or explain the 

arbitration provision; and (2) Pacific Bay knew that many employees were 

Spanish speakers, but presented the Agreement in English only and did not 

explain it in Spanish. It also found that the failure to provide the JAMS 

rules was a factor supporting procedural unconscionability. 

On substantive unconscionability, the trial court stated: “The primary 

argument for substantive unconscionability is that employees are more likely 

to have claims against employers than the other way around. This is a weak 

basis for substantive unconscionability.” It concluded, however, that there 

was “minimal” substantive unconscionability in the arbitration provision of 

the Agreement.

2 Pacific Bay does not challenge this determination on appeal.
7

Given there was only “some” procedural unconscionability regarding 

Naranjo and “minimal” substantive unconscionability, it granted Pacific 

Bay’s motion to compel Naranjo to arbitration. Considering the “significant” 

procedural unconscionability regarding Ramirez and “minimal” substantive 

unconscionability, the trial court concluded that “it was unconscionable to 

present the arbitration agreement to Ramirez with the strong suspicion or 

knowledge that he did not understand English and did not understand that 

the contract would waive his access to the courts regarding employment 

related claims.” It thus denied the motion as to Ramirez.3

This appeal followed. 

DISCUSSION

Pacific Bay argues on appeal that the trial court erred in finding the 

Agreement both procedurally and substantively unconscionable as to 

Ramirez. Before turning to the merits of these arguments, we set forth the

general framework governing motions to compel arbitration and our review.

I. General Framework

A. Burdens on Motion to Compel Arbitration

The party moving to compel arbitration bears the burden to prove the 

existence of an arbitration agreement by a preponderance of the evidence. 

(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413

(Rosenthal).) The moving party must first produce “prima facie evidence of a 

written agreement to arbitrate the controversy.” (Id. at p. 413.) That initial 

prima facie burden may be met “by attaching to the [motion or] petition a 

copy of the arbitration agreement purporting to bear the [opposing party’s] 

3 The trial court’s order did not specifically address Pacific Bay’s 

request to strike the class claims, presumably because it denied the motion to 

compel Ramirez to arbitration and directed his class claims to proceed in the 

court action.
8

signature.” (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 

543–544.) If “the opposing party does not dispute the existence of the 

arbitration agreement, then nothing more is required for the moving party to 

meet its burden of persuasion.” (Gamboa v. Northeast Community Clinic

(2021) 72 Cal.App.5th 158, 165.)

The burden then shifts to the opposing party to prove a defense to 

enforcement of the arbitration agreement. (Rosenthal, supra, 14 Cal.4th at 

p. 413.) “The unconscionability defense has been recognized by the United 

States Supreme Court as a general contract defense in California, and 

therefore a defense to an agreement to arbitrate.” (Fisher v. MoneyGram 

International, Inc. (2021) 66 Cal.App.5th 1084, 1093, citing AT&T Mobility 

LLC v. Concepcion (2011) 563 U.S. 333, 341–343; De La Torre v. CashCall, 

Inc. (2018) 5 Cal.5th 966, 978–979.) In other words, the party challenging 

the arbitration agreement bears the burden to prove its unconscionability. 

(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (OTO).)

B. Standards of Review

“There is no uniform standard of review for evaluating an order 

denying a motion to compel arbitration.” (Robertson v. Health Net of 

California, Inc. (2005) 132 Cal.App.4th 1419, 1425.) “If the court’s order is 

based on a decision of fact, then we adopt a substantial evidence standard.” 

(Id. at p. 1425.) “Alternatively, if the court’s denial rests solely on a decision 

of law, then a de novo standard of review is employed.” (Ibid.) To the extent 

there are material facts in dispute, “ ‘we accept the trial court’s resolution of 

disputed facts when supported by substantial evidence; we presume the court 

found every fact and drew every permissible inference necessary to support 

its judgment.’ ” (Carlson v. Home Team Pest Defense, Inc. (2015) 239 

Cal.App.4th 619, 630 (Carlson).) An “order denying a petition to compel 
9

arbitration, like any other judgment or order of a lower court, is presumed to 

be correct, and all intendments and presumptions are indulged to support the 

order on matters as to which the record is silent.” (Gutierrez v. Autowest, Inc.

(2003) 114 Cal.App.4th 77, 88 (Gutierrez).) With this general framework in 

mind, we turn to the doctrine of unconscionability.

II. Unconscionability

Unconscionability is commonly defined as “ ‘ “an absence of meaningful 

choice on the part of one of the parties together with contract terms which are 

unreasonably favorable to the other party.” ’ ” (Sanchez v. Valencia Holding 

Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).) The doctrine of 

unconscionability contains “ ‘ “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.” ’ ” (Id. at p. 910.) 

“ ‘ “The prevailing view is that [procedural and substantive unconscionability] 

must both be present in order for a court to exercise its discretion to refuse to 

enforce a contract or clause under the doctrine of unconscionability.” ’ ” 

(Ibid.) “But they need not be present in the same degree.” (Armendariz v. 

Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114

(Armendariz).) California courts employ a “ ‘sliding scale’ ” to determine 

unconscionability: “the 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.) We 

address each element in turn.

A. Procedural Unconscionability

Procedural unconscionability “begins with an inquiry into whether the 

contract is one of adhesion.” (Armendariz, supra, 24 Cal.4th at p. 113.) “An 

adhesive contract is standardized, generally on a preprinted form, and offered 
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by the party with superior bargaining power ‘on a take-it-or-leave-it basis.’ ” 

(OTO, supra, 8 Cal.5th at p. 126.) Pacific Bay concedes that the Agreement 

here is a contract of adhesion, “and thus contains some procedural 

unconscionability.” 

“The pertinent question, then, is whether circumstances of the 

contract’s formation created such oppression or surprise that closer scrutiny 

of its overall fairness is required.” (OTO, supra, 8 Cal.5th at p. 126.) 

Oppression occurs “ ‘ “ ‘where a contract involves lack of negotiation and 

meaningful choice.’ ” ’ ” (Ibid.) Surprise involves the extent to which “ ‘the 

allegedly unconscionable provision is hidden within a prolix printed form.’ ” 

(Ibid.)

Here, Pacific Bay challenges the trial court’s findings that the 

particular circumstances of Ramirez’s resulted in procedural 

unconscionability based on (1) the presentation of the Agreement in English 

without any explanation in Spanish; and (2) the failure to provide the JAMS 

rules. 

First, Pacific Bay argues that procedural unconscionability cannot arise 

from its failure to explain the arbitration provision to Ramirez. Pacific Bay

cites the general principle that “ ‘parties dealing at arm’s length’ ” have no 

duty to explain to each other the terms of a written contract. (Brookwood v. 

Bank of America (1996) 45 Cal.App.4th 1667, 1674, italics added; see also 

Sanchez, supra, 61 Cal.4th at p. 914 [seller was under no obligation to 

highlight arbitration provision in contract to consumer].) California courts, 

however, have made clear that an arbitration provision in an employment 

agreement is procedurally unconscionable when presented in English without 

explanation to an employee who cannot read English. (See, e.g., Carmona v. 

Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85 (Carmona) 
11

[concluding “there is no question the arbitration clause was procedurally 

unconscionable” where it was not translated into Spanish for employees who 

did not read English]; Nunez v. Cycad Management LLC (2022) 77 

Cal.App.5th 276, 284 [failure to provide Spanish version of employment 

agreement to employee who did not read English “shows oppression and 

surprise amounting to procedural unconscionability”].)

Pacific Bay also claims there is insufficient evidence that it knew

Ramirez could not read or speak English. We are not persuaded. In 

Carmona, the appellate court explained that the employer “evidently knew” 

the plaintiffs required Spanish translations because they provided the

translation of a portion of the multi-page employment agreement. (Carmona, 

supra, 226 Cal.App.4th at p. 85.) Here, Auerbach declared that she went 

through the employment documents in both English and Spanish during the 

onboarding meeting attended by Ramirez. As we must presume the trial 

court drew every necessary inference and we indulge such inferences in its 

favor, we conclude there was sufficient evidence to support its finding that 

Pacific Bay had “strong suspicion or knowledge” that Ramirez did not 

understand English. (See Carlson, supra, 239 Cal.App.4th at p. 630; 

Gutierrez, supra, 114 Cal.App.4th at p. 88.)

Pacific Bay further argues there was insufficient evidence that Ramirez 

could not understand written or spoken English. Again, we are not 

persuaded. In Subcontracting Concepts (CT), LLC v. De Melo (2019)

34 Cal.App.5th 201 (Subcontracting Concepts), the plaintiff signed an 

employment agreement in English when his native language was Portuguese 

and he was “not fluent enough in English to fully understand documents 

written in English.” (Id. at p. 206.) We concluded that the arbitration clause 

in the agreement contained “at least a moderate level of procedural 
12

unconscionability.” (Id. at p. 211.) Our reasoning in Subcontracting Concepts

applies with even greater force here, as Ramirez declared that he did not 

have “even the minimum ability to read or speak English.” 

Second, Pacific Bay argues that the failure to provide the JAMS rules 

was not an appropriate factor to consider on procedural unconscionability 

here. We agree. In Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, the 

Supreme Court explained that such a factor “might have force if [the 

employee’s] unconscionability challenge concerned some element of the 

[arbitration] rules of which she had been unaware when she signed the 

arbitration agreement.” (Id. at p. 1246.) Like the employee in Baltazar, 

Ramirez’s challenge to the enforcement of the Agreement here has nothing to 

do with the particular JAMS rules themselves. (Ibid.) Even discounting this 

factor, however, we nonetheless conclude there was sufficient evidence to 

support the trial court’s finding of procedural unconscionability based on 

Pacific Bay’s presentation of the Agreement—a contract of adhesion—in 

English without any explanation in Spanish.

Finally, Pacific Bay challenges the finding on procedural 

unconscionability by arguing that the trial court abused its discretion by

(1) affording little weight to the supplemental Auerbach declaration; and 

(2) declining to hold an evidentiary hearing to resolve the conflicting evidence 

in the Ramirez and supplemental Auerbach declarations.

We see some merit in these contentions. As described above, the party 

opposing a motion to compel arbitration bears the burden of proving a 

defense to enforcement of the arbitration agreement. (Rosenthal, supra,

14 Cal.4th 394 at p. 413.) Ramirez attempted to satisfy that burden by 

arguing in his opposition that the Agreement was unconscionable. As Pacific 

Bay suggests, it seems untenable to require the movant to forecast every 
13

possible defense in its opening motion; the better approach may be to afford

plaintiffs an opportunity to respond to any new reply evidence. (See Carbajal 

v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 [if inclusion of additional 

evidentiary evidence with reply is permitted, the other party should be given 

the opportunity to respond].) And where, as here, “the enforceability of an 

arbitration clause may depend upon which of two sharply conflicting factual 

accounts is to be believed, the better course would normally be for the trial 

court to hear oral testimony and allow the parties the opportunity for crossexamination.” (Ashburn v. AIG Financial Advisors, Inc. (2015) 234 

Cal.App.4th 79, 98.) On the other hand, we are mindful that the trial court is 

vested with the discretion to consider new reply evidence and we may reverse 

“only for a clear abuse of that discretion.” (Carbajal, supra, 245 Cal.App.4th 

at p. 241.) “There is simply no authority for the proposition that a trial court 

necessarily abuses its discretion, in a motion proceeding, by resolving 

evidentiary conflicts without hearing live testimony.” (Ashburn, supra, 

234 Cal.App.4th at p. 96.)

We need not resolve these issues on procedural unconscionability, 

however, because our conclusion on substantive unconscionability is 

dispositive here. As explained below, Ramirez failed to satisfy his burden to 

show any substantive unconscionability in the Agreement. 

B. Substantive Unconscionability

Substantive unconscionability arises when a contract imposes unduly 

harsh or one-sided results. (Armendariz, supra, 24 Cal.4th at p. 114.) As the 

California Supreme Court explained in Sanchez: “Not all one-sided contract 

provisions are unconscionable; hence the various intensifiers in our 

formulations: ‘overly harsh,’ ‘unduly oppressive,’ ‘unreasonably favorable.’ ” 

(Sanchez, supra, 61 Cal.4th at p. 910.) “In assessing substantive 
14

unconscionability, the paramount consideration is mutuality.” (Abramson v. 

Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 664.) Beyond mutuality, 

“courts often look to whether the agreement meets a minimum level of 

fairness based on the factors set forth in Armendariz.” (Davis v. Kozak (2020) 

53 Cal.App.5th 897, 910.) These factors include whether the arbitration 

agreement: “ ‘(1) provides for neutral arbitrators, (2) provides for more than 

minimal discovery, (3) requires a written award, (4) provides for all of the 

types of relief that would otherwise be available in court, and (5) does not 

require employees to pay either unreasonable costs or any arbitrators’ fees or 

expenses as a condition of access to the arbitration forum.’ ” (Armendariz, at 

p. 102.)

In this appeal, Ramirez completely abandons the substantive 

unconscionability argument accepted by the trial court: that the arbitration 

provision covers claims which are “most realistically brought by employees 

against their employers.” Ramirez proffered no evidence to support this 

argument, and the case he cited in support, Ingle v. Circuit City Stores, Inc. 

(2003) 328 F.3d 1165, is easily distinguishable. Ingle held that an arbitration 

agreement limited to “ ‘any and all employment-related legal disputes, 

controversies or claims of an Associate’ ” was substantively unconscionable. 

(Id. at p. 1173.) Unlike Ingle, the arbitration provision here was clear that 

Ramirez and Pacific Bay “BOTH AGREE” that disputes “ARISING FROM 

OR RELATING TO THE ENFORCEMENT, BREACH, PERFORMANCE

. . . OF THIS AGREEMENT, OUR EMPLOYMENT RELATIONSHIP, OR 

THE TERMINATION OF OUR EMPLOYMENT RELATIONSHIP” were 

subject to arbitration, whether such disputes were made by or against the 

employee or employer. The Agreement was signed by Ramirez as well as

Auerbach, on behalf of the company. The three categories of claims described 
15

in the arbitration provision were merely examples of arbitrable claims, and 

the inclusion of these examples does not show a lack of mutuality. (See Tiri 

v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 247 [concluding 

delegation clause is not substantively unconscionable because employee and 

employer “bound by it equally”].) To the extent that the trial court’s finding 

was based on the general assertion that “employees are more likely to have 

claims against employers than the other way around,” there was no evidence 

proffered by Ramirez to support this, and courts have rejected similar

assertions as tantamount to concluding that all employment arbitration 

agreements are “categorically unenforceable.” (Id. at p. 249.)

Having abandoned this argument, Ramirez raises three alternative

arguments that the Agreement was substantively unconscionable because it: 

(1) compels arbitration of administrative wage claims; (2) bars PAGA claims; 

and (3) bars class claims. As a preliminary matter, we note that Ramirez 

peripherally raised the class claim argument in his opposition to the 

underlying motion, but the other arguments were raised for the first time on 

appeal. While we could disregard these new arguments as waived, they raise 

legal questions determinable from uncontroverted facts and we thus exercise 

our discretion to consider them. (Farrar v. Direct Commerce, Inc. (2017) 

9 Cal.App.5th 1257, 1275 [addressing new argument on enforceability of 

arbitration provision].)

First, Ramirez argues that the Agreement is substantively

unconscionable because it compels arbitration of administrative wage claims 

and other “employee remedies.” We agree with Ramirez’s initial proposition 

that he need not have actually filed an administrative wage claim to assert

this defense. (Subcontracting Concepts, supra, 34 Cal.App.5th at p. 212 
16

[rejecting argument that plaintiffs had not pursued administrative claims].) 

We are, however, unpersuaded by the merits of the argument.

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

California Supreme Court concluded that arbitration agreements cannot be 

deemed categorically unconscionable because they involve waiver of an

administrative proceeding. (Id. at p. 1146.) In OTO, the court then

explained that an agreement compelling the arbitration of wage disputes 

could be enforceable so long as it provides an “accessible and affordable”

process for resolving those disputes. (OTO, supra, 8 Cal.5th at p. 124.) In 

other words, the arbitration agreement will not be considered unconscionable 

where the arbitration procedure is “relatively ‘low-cost’ ” and “provides a 

forum for wage claimants ‘to pursue their claims effectively.’ ” (Ibid.) OTO

determined that the arbitration provision at issue was sufficiently one-sided 

as to render it unenforceable. (Id. at pp. 136–137.) Among other things, the 

provision did not explicitly address the allocation of arbitration costs, but 

instead, referred to Code of Civil Procedure section 1284.2, which generally 

provides that parties to an arbitration must bear their own expenses. (Id. at 

p. 119.)

We addressed this same issue in Subcontracting Concepts. In that 

case, the arbitration provision in the employment agreement required the 

employee to bear his own costs for arbitration, barred him from recovering

any attorney fees or other costs, and limited the arbitrator’s authority to an 

award of monetary damages only. (Subcontracting Concepts, supra, 34 

Cal.App.5th at p. 212.) We concluded that the arbitration provision was 

substantively unconscionable because it replaced the administrative claim 

process protections with “costs and obstacles he would not otherwise face” 
17

and significantly limit[ed] the remedies that would otherwise be available.” 

(Id at p. 214.)

Here, unlike OTO and Subcontracting Concepts, the Agreement 

explicitly provides that the “COMPANY SHALL PAY ALL OF JAMS’ 

ARBITRATION FEES.” Moreover, unlike Subcontracting Concepts, there is 

no language prohibiting Ramirez from recovering attorney fees or other costs.

There is nothing to suggest that Ramirez would be limited from obtaining a 

remedy otherwise available in the administrative claim process. The

Agreement authorizes the arbitrator to “AWARD SUCH RELIEF AS 

WOULD OTHERWISE BE PERMITTED BY LAW” and does not prevent 

either party “FROM OBTAINING INJUNCTIVE RELIEF IN COURT IF 

NECESSARY TO PREVENT IRREPARABLE HARM PENDING THE 

CONCLUSION OF ANY ARBITRATION.” The other Armendariz factors 

weigh in favor of enforceability: the Agreement provides for a neutral JAMS 

arbitrator, authorizes the arbitrator to compel adequate discovery for 

resolution of the dispute, and requires the arbitrator to issue a written 

decision. (Armendariz, supra, 24 Cal.4th at p. 102.) For these reasons, we 

conclude that the waiver of administrative proceeding did not render the 

Agreement substantively unconscionable.

Second, Ramirez contends that the Agreement is substantively 

unconscionable because it bars PAGA claims. Again, we agree with 

Ramirez’s initial propositions that (1) he need not have actually asserted a

PAGA claim to raise this defense; and (2) a wholesale waiver of PAGA claims 

is not enforceable. (Subcontracting Concepts, supra, 34 Cal.App.5th at p. 212 

[reviewing the arbitration clause for substantive unconscionability at the 

time the agreement was made]; Iskanian v. CLS Transportation Los Angeles, 

LLC (2014) 59 Cal.4th 348, 383 [employee agreement that waives right to 
18

bring PAGA action is “against public policy and may not be enforced”]; Viking 

River Cruises, Inc. v. Moriana (June 15, 2022, No. 20-1573) __ S.Ct. __ [2022 

U.S. LEXIS 2940 at *33] [prohibition on wholesale waivers of PAGA claims

under Iskanian is not preempted by FAA].) Here, however, Ramirez does not 

offer any evidence that the Agreement actually bars PAGA claims. There is 

no provision that explicitly prohibits PAGA claims. (Cf. Subcontracting 

Concepts, at p. 205 [employment agreement prohibited arbitration of any 

claim made “ ‘ “in a private attorney general capacity” ’ ”]; Davis v. TWC 

Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 675 [broad language excluding 

“class, collective or joint action or arbitration” could be read to preclude 

PAGA actions].) On the contrary, the Agreement requires arbitration of 

disputes “TO THE FULLEST EXTENT PERMITTED BY LAW[.]” As 

explained in Torrecillas v. Fitness International, LLC (2020) 52 Cal.App.5th 

485, this language “steers clear” of any potential conflict with Ramirez’s right 

to bring a PAGA action and does not demonstrate unconscionability. 

(Torrecillas, at p. 500.)

Third, Ramirez argues that the Agreement is substantively 

unconscionable because it bars class claims. He contends that “Pacific Bay 

wrote [the Agreement], and is attempting to use it, to evade Ramirez’s 

colorable class claims (and those of other employees).” Ramirez cites no 

evidence, relying instead on Pacific Bay’s argument in its underlying motion

to strike the plaintiffs’ class allegations: that the “plain language” of the 

Agreement does not explicitly provide for class arbitration. We reject the 

parties’ joint assumption that the Agreement prohibits class claims; some 

language evidencing an intent to waive class claims is clearly required, and 

there is no such language in the Agreement. (Cf. Laster v. T-Mobile USA, 

Inc. (S.D.Cal. 2005) 407 F.Supp.2d 1181, 1185 [customer agreement provided 
19

that parties could only bring claims “IN YOUR OR ITS INDIVIDUAL 

CAPACITY, and not as a plaintiff or class member in any purported class or 

representative proceeding”]; Muro v. Cornerstone Staffing Solutions, Inc.

(2018) 20 Cal.App.5th 784, 790 [employment agreement explicitly waived 

“ ‘the right to initiate or proceed on a class action basis or participate in a 

class action in the arbitration’ ”].)4 We cannot conclude that the Agreement is 

substantively unconscionable on this basis.

In sum, we conclude that Ramirez failed to satisfy his burden to show 

the Agreement was substantively unconscionable. As this element must be 

satisfied to some degree to establish unconscionability as a defense to 

enforcement of the arbitration agreement (Armendariz, supra, 24 Cal.4th at 

p. 114), we thus conclude the trial court erred in denying the motion to 

compel Ramirez to arbitration.

DISPOSITION

The July 20, 2021 order denying Pacific Bay’s motion to compel 

arbitration as to Ramirez’s individual claims is reversed. We remand for 

further proceedings consistent with this opinion, including the resolution of 

Pacific Bay’s request to strike the class claims. Costs on appeal are awarded 

to Pacific Bay.

4 Based on our conclusion that the Agreement does not contain a class 

action waiver, we do not reach the argument in Pacific Bay’s Reply Brief that 

such a waiver is not substantively unconscionable.
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_________________________

Mayfield, J.*

We concur:

_________________________

Richman, Acting P.J.

_________________________

Miller, J.

Ramirez v. Pacific Bay Masonry, Inc. (A163316)

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.