Lost in Translation

Juarez v. Wash Depot Holdings, Inc., No. B282667 (D2d6 Jul. 3, 2018)

As we hopefully all know by now, claims under the Labor Code Private Attorney General Act aren’t arbitrable. Recognizing that fact, a Car Wash’s arb agreement waived the right to bring a PAGA claim, but provided that the PAGA waiver, if unenforceable, would be severable from the rest of the agreement to arbitrate. Or at least that’s what the the English version said. 

In a 2014 case called Carmona, the Court of Appeal held that an arb agreement with Spanish-speaking car wash employees was procedurally unconscionable because it wasn’t translated into Spanish. Car Wash here tried not to repeat that mistake. Unfortunately the translation was not literal. The Spanish-language version did not include the severance language. The trial court held that the conflict between the two versions was irreconcilable. Construing the conflicting agreements against the Car Wash, it denied a motion to compel arb.

There’s a threshold issue on appeal. It’s a pretty silly one. Employee filed his opposition two days late. But that was still ten days before the hearing. Car Wash objected, and now claims on appeal that the trial court abused its discretion by declining to grant the motion for failure to timely respond. But in the absence of prejudice, the trial court had the discretion to excuse the late filing. These are not the kinds of things that merit reversal on appeal.

As to the merits, the trial court was right. A PAGA waiver isn’t enforceable. And the conflicting severance provisions in the two versions of the contract were at least negligent and potentially deceptive. Given that the Car Wash drafted them and expected Employee to sign off on them without modification, Car Wash falls on the sword of its own crappy drafting under Civil Code § 1654.

Affirmed.