When The Agreement Is Silent On The Issue, Just As It Is With Classwide Claims, Representative Claims Are Inconsistent With Arbitration. 

In a classwide wage and hour action, the court granted the defendant employer’s petition to compel arbitration, leaving it up to the arbitrator to decide whether the agreement contemplated classwide and/or representative claims arbitration, or whether only the named plaintiff’s individual claim would be resolved in the arbitration. The employer filed a petition for writ of mandate in the Court of Appeal, arguing that where an arbitration agreement is silent on the issue, the court, not the arbitrator, should determine whether the class claims may be pursued in arbitration. The appellate court granted the employer’s petition, stating:  “We conclude that a court, not an arbitrator, should also decide whether the parties agreed to arbitrate representative claims, such as the PAGA claim in this case, in the face of an arbitration provision that is silent on the matter. The Concepcion [AT&T Mobility LLC v. Concepcion (2011) ___U.S.___ [131 S.Ct. 1740, 179 L.Ed.2d 742] court’s reasons for concluding that class arbitration is inconsistent with arbitration under the FAA similarly apply to the arbitration of representative actions.” (Garden Fresh Restaurant Corp. v. Sup. Ct. (Alicia Moreno) (Cal. App. Fourth Dist., Div. 1; November 17, 2014) 231 Cal.App.4th 678, [180 Cal.Rptr.3d 89].)