DULCE SOFIA GONZALEZ FLORES vs DIVERSIFIED RESTAURANT GROUP, LLC., et al.

Judicial Notice

The Court, on its own, takes judicial notice of the Answer filed by Defendants on May 13, 2025. (Evid. Code, § 452, subd. (d).) The Court declines to take judicial notice of Exhibits A, B, or C as requested in Defendants’ Request for Judicial Notice on relevance grounds.

2025CUOE038599: DULCE SOFIA GONZALEZ FLORES vs DIVERSIFIED RESTAURANT GROUP, LLC., et al.

Discussion

Rule of Court 3.767, subdivision (a)(3), provides the Court with discretion to require amendment of pleadings in a class action: “In the conduct of a class action, the court may make orders that: . . . (3) Require that the pleadings be amended to eliminate allegations as to representation of absent persons, and that the action proceed accordingly[.]” (Cal. Rules of Court, rule 3.767, subd. (a)(3).) In this case, Defendants move for an order requiring, among other things, that the class definition in the Complaint be amended based on alleged evidence that of the more than 11,000 estimated putative class members, only 143 have not signed an agreement to arbitrate.

The putative class members are not yet parties to the litigation because a class has not been certified. (Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4th 719, 736.) Further, Defendants have not offered in evidence the alleged agreements of the putative class members. “An arbitration clause must be consented to by the person against whom it is enforced[.]” (Id. at p. 788.) The Court declines to determine whether thousands of non-parties consented to arbitration based on agreements not before the Court.

Defendants also argue that Plaintiff cannot establish certain elements necessary to support class certification, such as typicality, adequacy, commonality, and manageability. The Court declines to make such a determination on the record before it. Defendants’ motion is based on Rule of Court 3.767, subdivision (a)(3), and at least one court has held that a motion under Rule 3.767, subdivision (a)(3), may be treated a “request to initiate the class certification process.” (In re BCBG Overtime Cases (2008) 163 Cal.App.4th 1293, 1298.)

Here, by asking the Court to consider the declaration of Abigail Hage, Diversified’s Director of Human Resources Information Systems, and its attached exhibits, comprised of Plaintiff’s executed arbitration agreement and a spreadsheet purporting to who the number of individuals who declined to sign the arbitration agreement, Defendants are arguably asking the Court to initiate the class certification process, despite the assertion in their brief that “[t]his is not a premature merits determination, nor an improper ‘mini-certification.’” (Moving Papers at 5:22-23; see also id. at 10-12 [arguments concerning typicality, commonality, and manageability].)

The Court finds that the matter is more appropriate for determination on a fully developed record. Lee v. Southern California University for Professional Studies (2007) 148 Cal.App.4th 782 is instructive. In Lee, the plaintiff filed a class action against the defendant. The defendant moved to compel the plaintiff to arbitrate her claims on grounds that some of the potential class members had signed a contract that included an arbitration clause, though the plaintiff was not one of them. The trial court denied the motion. (Id. at p. 784.)

The Court of Appeal affirmed. Not only did it note that the putative class members were not before the court, it also addressed the timing of the determination of class certification issues, stating: We affirm and find that no grounds exist for compelling arbitration when the only plaintiff currently before the court never agreed to arbitrate her claims. The question of whether she is an adequate class representative for those who did, and all other matters pertaining to whether the action is appropriate for class treatment, are issues for the trial court to decide when Lee moves to certify the class.

2025CUOE038599: DULCE SOFIA GONZALEZ FLORES vs DIVERSIFIED RESTAURANT GROUP, LLC., et al.

(Id.; see also id. at p. 788 [“Any issues surrounding what might happen if a certain type of class is certified are not properly before us, as the trial court has not yet reached any conclusion as to whether a class action is even appropriate in this case.’].)

Finally, the Court finds Plaintiff’s waiver argument persuasive based on the current allegations of the Answer. “[A]n agreement to arbitrate is an affirmative defense.” (Hendershot v. Ready to Roll Transportation, Inc. (2014) 228 Cal.App.4th 1213, 1224 [quoting Ross v. Blanchard (1967) 251 Cal.App.2d 739, 742].) “[T]he failure to plead arbitration as an affirmative defense is an act inconsistent with the later assertion of a right to arbitrate.” (Guess”, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 558.)

In this case, the Answer filed on May 13, 2025, does not allege arbitration as an affirmative defense. The Court disagrees with Defendants’ argument that the twenty-first, twenty-fifth, and thirty-fourth affirmative defenses allege arbitration as an affirmative defense and acknowledges Defendants’ statement of intent to seek leave of this Court to file an amended answer. The Court thus declines to make a ruling on an issue not currently raised by the pleadings.

In sum, the Court is vested with the discretion to require amendment of the Complaint under Rule 3.767, subdivision (a)(3). For the reasons stated herein, the Court declines to exercise such discretion. The motion is denied without prejudice.

Counsel for Plaintiff is ordered to give notice of the Court’s ruling.

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