Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 PAZEL JACKSON, Case No.: 25-cv-03159-AJB-MMP 14 Plaintiff, ORDER GRANTING IN PART AND 15 v. DENYING IN PART DEFENDANT UNIFI AVIATION LLC’S MOTION 16 UNIFI AVIATION LLC, et al., TO COMPEL ARBITRATION 17 Defendants. (Doc. No. 17) 18 19 20 Before the Court is Defendant Unifi Aviation LLC’s (“Unifi”) motion to compel the 21 claims of Plaintiff Pazel Jackson (“Plaintiff”) to arbitration and stay the proceedings. (Doc. 22 No. 17.) Both Plaintiff and Defendant Arthur Menelaus Pappas (“Pappas”) oppose. (See 23 Doc. Nos. 23–25 (Plaintiff’s opposition); 26 (Pappas’s opposition).) For the reasons set 24 forth below, the Court GRANTS in part and DENIES in part the motion. 25 I. BACKGROUND 26 Plaintiff was employed by Unifi as a wheelchair assistant at the San Diego 27 International Airport starting approximately June 29, 2016. (Doc. No. 1-2, Complaint 28 (“Compl.”), ¶ 11.) In April 2023, Unifi began requiring California-based employees hired 1 before May 2021 to sign an arbitration agreement (“the Agreement”) as a condition of 2 continued employment. (Doc. No. 17-1 at 8; Doc. No. 17-2, Declaration of Jennifer L. 3 Gomez (“Gomez Decl.”), ¶ 6; Doc. No. 17-5 at 3–8 Arbitration Agreement 4 (“Agreement”).) In April 2023, Unifi’s Human Resources team compiled a list of 5 California employees who had not yet signed the Agreement. (Gomez Decl. ¶ 6.) Plaintiff’s 6 employee ID number, most current home address, and most current personal email address 7 were on the list. (Id. ¶ 7.) According to Gomez, Unifi emailed Plaintiff a copy of the 8 Agreement on April 21, 2023, and mailed him a copy of the Agreement on April 28, 2023, 9 neither of which was returned as undeliverable. (Id. ¶¶ 9–11.) Both transmissions clearly 10 communicated that Plaintiff’s continued employment would constitute acceptance of the 11 Agreement. (Id. ¶ 13.) Unifi received a FedEx delivery confirmation for the mailed copy. 12 (Id. ¶¶ 9, 11; see Doc. No. 17-7 (FedEx Confirmation).) However, Plaintiff disputes ever 13 receiving or being informed of the Agreement. (Doc. No. 25, Declaration of Plaintiff Pazel 14 Jackson (“Jackson Decl.”), ¶ 4.) Plaintiff avers he “never received” the Agreement, does 15 “not recall receiving any email or mail in April or May 2023” containing the Agreement, 16 and “was never told that [he] was required to sign an arbitration agreement as a condition 17 of [his] employment or continued employment.” (Jackson Decl. ¶¶ 4–5.) The parties agree, 18 however, that Plaintiff did not sign the Agreement and continued working for Unifi. 19 (Gomez Decl. ¶ 15; Jackson Decl. ¶ 3.) 20 On April 2, 2024, Plaintiff alleges he was physically assaulted by a passenger, 21 Pappas, while performing his job duties on a jet bridge. (Compl. ¶¶ 12–13.) Plaintiff 22 reported the incident to his supervisor and the San Diego Harbor Police. (Id. ¶ 14.) The 23 following day, Unifi suspended Plaintiff pending an investigation. (Id. ¶ 16.) On April 23, 24 2024, Unifi terminated Plaintiff at the request of Delta Air Lines (“Delta”) for alleged 25 “gross misconduct.” (Id. ¶ 18.) Plaintiff alleges that his termination was a “pretext for 26 unlawful discrimination and retaliation” based on his race. (Id. ¶ 35.) 27 On September 10, 2025, Plaintiff sent Unifi a personnel-file request seeking all 28 signed documents, including any arbitration agreements. (Doc. No. 23 at 7.) Despite these 1 requests, Plaintiff contends that Unifi failed to provide him with any arbitration agreement 2 at the time. (Jackson Decl. ¶ 6.) 3 Plaintiff filed the Complaint in the San Diego County Superior Court on October 15, 4 2025, asserting nine causes of action against Unifi and Pappas: race discrimination; 5 harassment; retaliation; failure to prevent discrimination, harassment, and retaliation; 6 wrongful termination; whistleblower retaliation; unfair business practices; and assault and 7 battery. (See generally Compl.) Unifi was served on October 17, 2025, and defense counsel 8 first raised arbitration as a defense on October 27, 2025. (Doc. No. 23 at 7.) Unifi produced 9 a copy of the Agreement on November 3, 2025. (Id.) Unifi filed its Answer on November 10 13, 2025, asserting arbitration as an affirmative defense and removing the action to this 11 Court the following day. (Id.) Unifi filed the instant Motion to Compel Arbitration and 12 Stay Proceedings on December 29, 2025. (Doc. No. 17.) Plaintiff opposed (Doc. No. 23), 13 and Unifi replied (Doc. No. 27). 14 II. LEGAL STANDARD 15 The Federal Arbitration Act (“FAA”) applies to contracts “evidencing a transaction 16 involving commerce.” 9 U.S.C. § 2; Brennan v. Opus Bank, 796 F.3d 1125, 1129 (9th Cir. 17 2015). “Generally, a court must determine two issues before deciding whether to compel 18 arbitration: (1) whether there is an agreement to arbitrate between the parties; and (2) 19 whether the agreement covers the dispute.” Knapke v. PeopleConnect, Inc., 38 F.4th 824, 20 831 (9th Cir. 2022) (quoting Zoller v. GCA Advisors, LLC, 993 F.3d 1198, 1201 (9th Cir. 21 2021)). If the two factors are met, the Court must enforce the arbitration agreement in 22 accordance with its precise terms. Kilgore v. KeyBank, Nat. Ass’n, 673 F.3d 947, 955 (9th 23 Cir. 2012), on reh’g en banc, 718 F.3d 1052 (9th Cir. 2013). 24 The party seeking to compel arbitration “has the burden of proving the existence of 25 an agreement to arbitrate by a preponderance of the evidence.” Knutson v. Sirius XM Radio 26 Inc., 771 F.3d 559, 565 (9th Cir. 2014). “In determining whether a valid arbitration 27 agreement exists, federal courts apply ordinary state-law principles that govern the 28 formation of contracts.” Heckman v. Live Nation Ent., Inc., 120 F.4th 670, 680 (9th Cir. 1 2024), cert. denied sub nom. Live Nation v. Heckman, No. 24-1145, 2025 WL 2823733 2 (U.S. Oct. 6, 2025); see also Olson v. FCA US, LLC, 176 F.4th 612, 617 (9th Cir. 2026) 3 (“Arbitration is a matter of contract.”). “Thus, generally applicable contract defenses, such 4 as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements 5 without contravening” federal law. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 6 (1996). “[T]he party opposing arbitration bears the burden of proving any defense, such as 7 unconscionability.” Pinnacle Museum Tower Ass’n. v. Pinnacle Mkt. Dev. (US), LLC 8 (“Pinnacle”), 55 Cal. 4th 223, 236 (2012). 9 III. DISCUSSION 10 Unifi moves to compel arbitration of Plaintiff’s claims on the basis that a valid, 11 enforceable, and non-waived arbitration agreement exists and covers all of Plaintiff’s 12 claims. (Doc. No. 17-1 at 15.) Plaintiff opposes, asserting that no valid agreement exists, 13 that any agreement is unconscionable, that non-signatory Pappas cannot enforce it, and that 14 Unifi has waived its right to compel arbitration. (Doc. No. 23 at 7–10, 17.) Pappas opposes, 15 arguing he cannot be compelled to arbitrate claims as a non-signatory to the Agreement. 16 (Doc. No. 26 at 5.) 17 A. Evidentiary Challenges 18 As a threshold issue, Plaintiff challenges the authentication of the Agreement. (Doc. 19 No. 23 at 8.) Specifically, Plaintiff argues that Unifi does not authenticate the Agreement 20 through a declarant with personal knowledge and has not established the Agreement as a 21 business record. (Id. (relying first on Cal. Evid. Code § 1301; then Cal. Evid. Code 22 § 1271).) 23 “In ruling on a motion to compel arbitration, courts apply the ‘summary judgment 24 standard outlined’ in Rule 56.” Rubio-Leon v. Fresh Harvest, Inc., 812 F. Supp. 3d 944, 25 949 (N.D. Cal. 2025) (quoting Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th 26 Cir. 2021)). As such, “[a] party may object that the material cited to support or dispute a 27 fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 28 56(c)(2). “Authentication is a ‘condition precedent to admissibility,’ and this condition is 1 satisfied by ‘evidence sufficient to support a finding that the matter in question is what its 2 proponent claims.’” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) 3 (quoting Fed. R. Evid. 901(a)); see also Fed. R. Evid. 901(b) (providing ten approaches to 4 authentication); Fed. R. Evid. 902 (identifying self-authenticating evidence).1 5 Courts applying this standard have found declarations sufficient where the declarant 6 identifies a specific institutional role tied to the records at issue and describes the 7 underlying record-keeping process, rather than merely describing the fact that a document 8 was transmitted. Hartranft v. Encore Cap. Grp., Inc., 543 F. Supp. 3d 893, 915 (S.D. Cal. 9 2021). In Hartranft, the court found a declaration was adequate because the declarant 10 identified himself as a Control Officer, described his years of experience with the 11 company’s record-keeping practices, and stated that the exhibits were correct and 12 maintained. Id. 13 To support the instant motion, Unifi proffers two declarations and twelve exhibits. 14 Contrary to Plaintiff’s assertion that “Defendant offers only attorney Wilfred Gual’s 15 declaration,” (Doc. No. 23 at 8), the first attachment to the instant motion is the Declaration 16 of Jennifer L. Gomez, Unifi’s Human Resources Manager since November 2020, (Gomez 17 Decl.). Gomez avers that her knowledge is based on personal involvement in the 18 Agreement rollout and on Unifi’s business records, and she describes how the employee 19 list was compiled, how the email and mailed copies of the Agreement were sent, and how 20 they were tracked. (Id. ¶¶ 2, 6–11.) Further, Gomez attached the Agreement itself, along 21 with the email and letter transmitting it to Plaintiff. (Id. ¶¶ 8, 10, 13.) The declaration is a 22 process-specific showing that properly authenticates the Agreement under Rule 901(a). 23 See, e.g., Hartranft, 543 F. Supp. 3d at 915. 24 Therefore, Plaintiff’s authentication challenge fails, and the Agreement is properly 25 before the Court. 26 27 1 Plaintiff relies on the California Evidence Code; however, evidentiary challenges on a motion to 28 1 B. Contract Formation 2 Having found the Agreement to be properly authenticated, the next question is 3 whether Plaintiff accepted its terms through continued employment.2 Unifi asserts that 4 Plaintiff impliedly accepted the Agreement by continuing to work for nearly a year after 5 receiving notice by both mail and email that his continued employment after May 28, 2023 6 constitutes acceptance. (Doc. No. 17-1 at 15–16.) In opposition, Plaintiff argues that 7 acceptance cannot be formed through passive conduct alone, particularly where Plaintiff 8 denies ever receiving or being informed of the Agreement. (Doc. No. 23 at 7.) 9 “[G]eneral principles of contract law determine whether the parties have entered a 10 binding agreement to arbitrate.’” Pinnacle, 55 Cal. 4th at 236 (quoting Craig v. Brown & 11 Root, Inc., 84 Cal. App. 4th 416, 420 (2000)). Under California law, a contract is 12 established when (1) the parties are capable of contracting, (2) the parties consent to the 13 contract, (3) the contract describes a lawful object, and (4) there was sufficient cause or 14 consideration supporting the contract. Cal. Civ. Code § 1550; see also Knutson v. Sirius 15 XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (“It is undisputed that under California 16 law, mutual assent is a required element of contract formation.”). “A party’s acceptance of 17 an agreement to arbitrate may be express, as where a party signs the agreement. A signed 18 agreement [to arbitrate] is not necessary, however, and a party’s acceptance may be implied 19 in fact or be effectuated by delegated consent.” Pinnacle, 55 Cal. 4th at 236 (citing first 20 Craig, 84 Cal. App. 4th at 420; then Ruiz v. Podolsky 50 Cal. 4th 838, 852–54 (2010)); see 21 also Asmus v. Pac. Bell, 23 Cal. 4th 1, 11 (2000) (“California law permits employers to 22 implement policies that may become unilateral implied-in-fact contracts when employees 23 accept them by continuing their employment.”). 24 /// 25 /// 26 27 2 The Court need not address Plaintiff’s arguments about Unifi “fail[ing] to authenticate the signature” because both Unifi and Plaintiff agree Plaintiff did not sign the Agreement. (Compare Doc. 28 1 Plaintiff’s argument that his acceptance of the Agreement cannot be implied through 2 his continued employment is unmoored from precedent. See, e.g., Diaz v. Sohnen Enters., 3 34 Cal. App. 5th 126, 130 (2019) (“California law in this area is settled: when an employee 4 continues his or her employment after notification that an agreement to arbitration is a 5 condition of continued employment, that employee has impliedly consented to the 6 arbitration agreement.”); Avery v. Integrated Healthcare Holdings, Inc., 218 Cal. App. 4th 7 50, 63 (2013) (“A unilateral implied-in-fact arbitration agreement may be enforced against 8 an employee to require the employee to arbitrate all claims against his or her employer.”); 9 Craig, 84 Cal. App. 4th, at 419–20; Pinnacle, 55 Cal. 4th at 236. 10 However, to apply this doctrine, the employer must give the employee notice of the 11 arbitration agreement. Gomez describes the specific process by which Unifi compiled the 12 list of employees who had not signed, tracked whether the email and letter sent to Plaintiff 13 were returned as undeliverable, and explained why no receipt was generated for Plaintiff’s 14 Gmail account despite the email being sent. Unifi also submitted a delivery confirmation 15 showing the mailed Agreement reached Plaintiff’s address. This documented, process- 16 specific showing supports an inference of receipt. See Craig, 84 Cal. App. 4th at 421 (“This 17 evidence created a presumption that [Plaintiff] received the items that were sent, and 18 shifted the burden of producing evidence to h[im].”). 19 To oppose this evidence, Plaintiff only proffers his assertions that he “never received 20 this arbitration agreement” and that he “do[es] not recall receiving any email or mail in 21 April or May 2023 containing an arbitration agreement.” (Jackson Decl. ¶¶ 4–5.) However, 22 Plaintiff does not contest the accuracy of either the mailing address or email address to 23 which Unifi sent the Agreement. (See generally id.) Nor does Plaintiff proffer any other 24 specific details to support his denials. (Id.) Weighing the evidence presented, even when 25 viewed reasonably in the light most favorable to the non-moving party, substantial 26 evidence supports that Plaintiff received the Agreement. See Craig, 84 Cal. App. 4th at 27 422; see also Baghdasarian v. Macy’s, Inc., No. CV2104153ABMAAX, 2021 WL 28 12251599, at *5 (C.D. Cal. Oct. 28, 2021) (“While Plaintiff’s denials of receipt suffice to 1 overcome the mailbox rule presumption, they fail to convince the Court that he did not 2 receive the mailings in question. Mail, once sent, is rarely lost, and Plaintiff's denials 3 amount to a claim that lightning has struck twice in the same place. The Court therefore 4 finds that Plaintiff did receive the arbitration agreement and opt-out forms by mail.”). 5 Moreover, the email and letter made clear that continued employment would 6 constitute acceptance. (Doc. Nos. 17-5 at 2 (Email) (“The Mutual Arbitration Agreement 7 is a condition of your continued employment with Unifi after May 28, 2023, and your 8 continued employment with the Company after that date will constitute your acceptance of 9 the Agreement. As such, through your continued employment with Unifi, you agree to the 10 Mutual Arbitration Agreement, including arbitrating claims related to your employment 11 with the Company on an individual basis.”); 17-6 at 2 (Letter) (same).) As such, Unifi 12 clearly conveyed that Plaintiff’s continued employment was explicitly conditioned on 13 acceptance of the Agreement. See, e.g., Harris v. TAP Worldwide, LLC, 248 Cal. App. 4th 14 373, 384 (2016) (holding that beginning and continuing to work after an employer presents 15 an arbitration agreement as a condition of employment constitutes both performance and 16 acceptance of consideration—both of which are acceptance of the terms). 17 Finally, it is undisputed that Plaintiff continued working for approximately one year 18 after receiving notice that his continued employment after May 28, 2023 would constitute 19 acceptance of the Agreement, and did so without expressly or timely rejecting the 20 Agreement. Cf. Mar v. Perkins, 102 Cal. App. 5th 201, 218 (2024). 21 Considering the evidence presented, the Court finds that Plaintiff received the 22 Agreement, which explicitly conditioned continued employment on acceptance, was 23 provided a month to consider the terms, and then proceeded to work for Unifi for another 24 year. As such, under California’s contract formation laws, Plaintiff assented to arbitrate 25 claims pursuant to the Agreement. See, e.g., Deneau v. Coastal Home Care Servs., Inc., 26 744 F. Supp. 3d 950, 955 (N.D. Cal. 2024) (“[U]nder the relevant California law, Deneau’s 27 continued employment after receiving notice of the 2021 arbitration agreement—which 28 explicitly conditioned Deneau’s employment on the acceptance of its detailed terms— 1 constitutes an implied-in-fact agreement to arbitrate her claims.”). 2 C. Delegation Clause 3 Next, Unifi argues that the Agreement’s delegation clause clearly and unmistakably 4 delegates the question of enforceability to an arbitrator. (Doc. Nos. 17-1 at 12–13; 27 at 8.) 5 Plaintiff does not contest that there is a delegation clause. (See generally Doc. No. 23.) 6 Rather, Plaintiff argues more generally that the Agreement is unconscionable, an argument 7 wherein Plaintiff references the delegation clause in four instances. (Id.) 8 “Who gets to decide the arbitration agreement’s validity—an arbitrator or a court— 9 depends on whether there is ‘clear and unmistakable’ evidence that the parties agreed to 10 delegate the validity question to the arbitrator.” Sandler v. Modernizing Med., Inc., 170 11 F.4th 1209, 1212 (9th Cir. 2026) (quoting Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 12 69 n.1 (2010)). “If there is such evidence, then the arbitrator has the power to resolve that 13 question of ‘arbitrability.’” Id. 14 Here, the Agreement includes a delegation clause that provides: 15 The arbitrator, and not any federal, state, local court, or government agency, 16 shall have exclusive authority to resolve any and all disputes regarding the validity, interpretation, applicability, enforceability, or formation of this 17 agreement, including but not limited to the arbitrability of any claims, 18 notwithstanding anything to the contrary in the JAMS Rules, to the full extent permissible by applicable law. 19 20 (Agreement § 12.) The clause carves out from the arbitrator’s authority disputes over the 21 enforceability of the Class and Collective Action Waivers or the PAGA Individual Action 22 Requirement are reserved for a court, not an arbitrator, to decide. (Id.) Because the 23 delegation clause grants “exclusive authority” over the Agreement’s validity, 24 enforceability, and arbitrability, the text provides clear and unmistakable evidence of the 25 parties’ intent to delegate. 26 Additionally, “[i]ncorporation of the JAMS arbitration rules by reference constitutes 27 clear and unmistakable evidence that the parties agree to arbitrate arbitrability.” Patrick v. 28 Running Warehouse, LLC, 93 F.4th 468, 481 (9th Cir. 2024). Here, the Agreement provides 1 that “[a]rbitration will be conducted pursuant to the JAMS Employment Arbitration Rules 2 and Mediation Procedures and the JAMS Policy on Employment Arbitration Minimum 3 Standards of Procedural Fairness.” (Agreement § 1.) Because “[t]he agreement 4 incorporates the JAMS rules, which delegate the question of the agreement’s validity to 5 the arbitrator,” the incorporation itself “evinces a ‘clear and unmistakable’ intent to 6 delegate.” See Sandler, 170 F.4th at 1212. 7 In opposition, Plaintiff challenges the enforceability of the Agreement as a whole by 8 asserting that the Agreement is procedurally and substantively unconscionable. (Doc. No. 9 23 at 8–19.) 10 “[T]o sufficiently challenge a delegation provision, the party resisting arbitration 11 must specifically reference the delegation provision and make arguments challenging it.” 12 Bielski v. Coinbase, Inc., 87 F.4th 1003, 1011 (9th Cir. 2023). “[I]f a party cites provisions 13 outside of the delegation clause in making an unconscionability challenge, it must explain 14 how those provisions make the fact of an arbitrator deciding arbitrability unconscionable.” 15 Holley-Gallegly v. TA Operating, LLC, 74 F.4th 997, 1002 (9th Cir. 2023) (emphasis in 16 original). 17 “Under California law, ‘the party opposing arbitration bears the burden of proving 18 any defense, such as unconscionability.’” Bielski, 87 F.4th at 1013 (quoting Pinnacle, 55 19 Cal. 4th at 236). “[A] contract is unconscionable if one of the parties lacked a meaningful 20 choice in deciding whether to agree and the contract contains terms that are unreasonably 21 favorable to the other party.” Ronderos v. USF Reddaway, Inc., 114 F.4th 1080, 1089 (9th 22 Cir. 2024). “For a court to refuse to enforce a provision due to unconscionability, a party 23 must show the provision has elements of both procedural and substantive 24 unconscionability.”3 Bielski, 87 F.4th at 1013. Courts analyze unconscionability on a 25 26 3 “The procedural element addresses the circumstances of contract negotiation and formation, 27 focusing on oppression or surprise due to unequal bargaining power.” OTO, L.L.C. v. Kho, 8 Cal. 5th 111, 125 (2019). The substantive element “examines the fairness of a contract’s terms.” Lim v. TForce 28 1 “sliding scale,” such that “the more substantively oppressive the contract term, the less 2 evidence of procedural unconscionability is required to come to the conclusion that the 3 term is unenforceable, and vice versa.” Armendariz v. Found. Health Psychcare Servs., 4 Inc., 24 Cal. 4th 83, 114 (2000). 5 Here, Plaintiff does not fashion an unconscionability defense targeting the 6 delegation clause or assert that the reasons the Agreement is unconscionable apply equally 7 to the delegation clause. (See generally Doc. No. 23.) Rather, Plaintiff only connects the 8 delegation clause to two arguments—surprise and a lack of mutuality. The Court addresses 9 each in turn.4 10 First, Plaintiff argues the Agreement is procedurally unconscionable because it was 11 imposed through surprise. (Doc. No. 23 at 9–10.) Specifically, as relevant to the delegation 12 clause, Plaintiff argues that the provision “involve[s] complex legal concepts requiring 13 legal training to understand,” and “[t]here is no evidence Plaintiff was advised to seek 14 counsel or given meaningful time to review the 12+ page agreement with complex legal 15 terms, delegation clause, and class/PAGA waivers.” (Id.) 16 Unifi responds that Plaintiff presents no evidence of surprise, either by 17 demonstrating the Agreement was “hidden or unclear” or by supporting with evidence “his 18 assertion that he did not receive the Agreement.” (Doc. No. 27 at 10.) In contrast, Unifi 19 argues that the Agreement “is conspicuous and clear and is typed in legible font” and was 20 sent to Plaintiff in two different methods. (Id.) 21 “[S]urprise involves the extent to which the supposedly agreed-upon terms are 22 23 24 4 All other unconscionability arguments were asserted as to making “the entire agreement, rather 25 than the delegation clause specifically, unconscionable,” and thus are waived. Holley-Gallegly, 74 F.4th at 1003 n.3; see, e.g., Xatruch v. Raising Canes U.S.A., LLC, No. 2:25-CV-03341-DJC-SCR, 2026 WL 26 2517545, at *5 (E.D. Cal. Aug. 26, 2026) (“Here, the Court finds that although Plaintiff has pointed to provisions that may demonstrate unconscionability and has mentioned the delegation clause, she has not 27 explained how those provisions impact the question of arbitrability specifically. Absent any such discussion, the Court finds that Plaintiff has forfeited her ability to challenge the delegation provision’s 28 1 hidden in a prolix printed form drafted by the party seeking to enforce them.” Nagrampa 2 v. MailCoups, Inc., 469 F.3d 1257, 1280 (9th Cir. 2006) (quoting Flores v. Transamerica 3 HomeFirst, Inc., 93 Cal. App. 4th 846, 853 (2001)). Here, contrary to Plaintiff’s 4 characterization, the Agreement spans six pages, is legible in both typeface and font, 5 includes sufficient white space for visual clarity, and incorporates numbered sections, 6 labeled headings, and bolded defined terms. Although the delegation clause includes legal 7 terms, the structure and phrasing clearly put even a lay reader on notice that the arbitrator, 8 not a court, would decide all issues regarding the Agreement. Considering both the 9 circumstances of Agreement’s presentment and the delegation clause in context with the 10 rest of the Agreement, this is not a prolix printed form drafted to ensure agreement without 11 understanding or awareness of the delegation clause. Cf. OTO, L.L.C., 8 Cal. 5th at 128. 12 Accordingly, the Court finds Plaintiff fails to meet his burden of demonstrating the 13 existence of surprise with regard to the delegation clause. 14 Second, Plaintiff argues the Agreement is substantively unconscionable because it 15 lacks mutuality. Specifically, Plaintiff argues that, by “carv[ing] out class/collective/PAGA 16 waivers,” the “selective delegation” clause “reserve[es] for courts only issues where 17 California law protects employees” and “demonstrates one-sided drafting.” (Doc. No. 23 18 at 11.) Similarly, Plaintiff argues that the delegation clause, like “all onerous provisions, 19 . . . disproportionately impact[s] employee claims,” and that “[a]n employer bringing an 20 action against an employee would face none of these barriers.” (Id. at 13–14.) 21 Unifi asserts that “Plaintiff’s argument is without merit, based on his own assertions, 22 and not supported by any legal authority.” (Doc. No. 27 at 13.) Instead, Unifi argues the 23 Agreement is “mutual and bilateral.” (Id.) 24 The language of the delegation clause binds Plaintiff and Unifi equally. If anything, 25 Plaintiff’s argument that the delegation clause reserves for the Court issues where 26 California law protects employees suggests that the purported “one-sided” drafting is in 27 Plaintiff’s favor. However, other courts have found that similar carve outs from delegation 28 clauses are not evidence of a lack of mutuality. See, e.g., Magdaleno v. CCFI Companies, 1 LLC, No. 2:25-CV-00914-DAD-JDP, 2026 WL 622197, at *5 (E.D. Cal. Mar. 5, 2026); 2 Rivera v. Uniqlo Cal., LLC, No. 17-cv-02848-JAK-JPR, 2017 WL 6539016, at *14 (C.D. 3 Cal. Sept. 8, 2017). Additionally, although Plaintiff asserts that the delegation clause is 4 “onerous” and only benefits Unifi, Plaintiff fails to explain why or how the delegation 5 clause burdens Plaintiff and exempts Unifi from those burdens. Cedillo v. Artech Info. Sys., 6 LLC, No. 2:25-CV-09241-AH-(AYPX), 2026 WL 974280, at *6 (C.D. Cal. Mar. 19, 2026) 7 (“Without an explanation as to why there is a lack of mutuality that unfairly favors 8 Defendants, the Court does not find the delegation clause to be substantively 9 unconscionable.”). Because there is “nothing in the delegation clause upon which to 10 conclude that it lacks mutuality or is otherwise unreasonably favorable to” Plaintiff, the 11 delegation clause is not substantively unconscionable for lack of mutuality. See, e.g., Tiri 12 v. Lucky Chances, Inc., 226 Cal. App. 4th 231, 247 (2014) (“This mutuality is nearly 13 unqualified, and it is far more than the ‘modicum of bilaterality’ required by our state 14 Supreme Court in employment arbitration agreements.”). Accordingly, the Court finds 15 Plaintiff fails to meet his burden of demonstrating the existence of substantive 16 unconscionability with regard to the delegation clause. 17 Because Plaintiff fails to meet his burden to demonstrate either procedural or 18 substantive unconscionability, the Court finds the delegation clause to be enforceable. 19 Accordingly, the Court grants Unifi’s motion to compel Plaintiff’s claims asserted against 20 Unifi to arbitration. Plaintiff is free to challenge the unconscionability of the Agreement in 21 proceedings before the arbitrator, along with raising the issue of waiver or any other 22 arguments Plaintiff may have. See, e.g., Jurosky v. BMW of N. Am., LLC, 441 F. Supp. 3d 23 963, 975–76 (S.D. Cal. 2020) (“Because arbitrability is clearly delegated to the arbitrator, 24 Plaintiff’s other arguments in opposition—such as waiver—must be reserved for the 25 arbitrator.”). 26 D. Claims Against Pappas 27 The instant motion seeks to compel all of Plaintiff’s claims to arbitration without 28 express consideration that claims are asserted against two distinct defendants: Unifi, 1 Plaintiff’s employer, and Pappas, a customer of Delta. (See generally Doc. No. 17; see also 2 Compl. ¶¶ 2–5.) After both Plaintiff and Pappas filed oppositions to the instant motion, 3 Unifi replies that “[t]here is no doubt that all Defendants can compel arbitration of 4 Plaintiff’s claims, despite Plaintiff and Mr. Pappas’ arguments in their respective 5 Oppositions.” (Doc. No. 27 at 14.) The rest of Unifi’s barebones argument—that “Pappas 6 is a third-party beneficiary as a passenger in the airport that Unifi provides services”—is 7 relegated to a footnote. (Id. at 14 n.9.) 8 As an initial matter, “[a]rguments raised only in footnotes, or only on reply, are 9 generally deemed waived.” Malone v. Williams, 112 F.4th 867, 882 (9th Cir. 2024) 10 (quoting Est. of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014)). Unifi raises 11 its third-party beneficiary argument in the first instance in a footnote to its reply brief. For 12 those reasons, the Court could disregard Unifi’s assertions. However, even considering the 13 merits of Unifi’s assertion, it fails under the circumstances. 14 “General contract and agency principles apply in determining the enforcement of an 15 arbitration agreement by or against nonsignatories.” Mundi v. Union Sec. Life Ins. Co., 555 16 F.3d 1042, 1045 (9th Cir. 2009). “To that, there are six theories by which a nonsignatory 17 may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) 18 veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” Philadelphia 19 Indem. Ins. Co. v. SMG Holdings, Inc., 44 Cal. App. 5th 834, 841 (2019) (cleaned up); see 20 also Mundi, 555 F.3d at 1045. “Whether a nonsignatory is an intended third party 21 beneficiary to the contract is determined from the parties’ intent, as gleaned from the 22 contract as a whole and the circumstances under which it arose.” Philadelphia Indem. Ins. 23 Co., 44 Cal. App. 5th at 841. 24 Analyzing the Agreement between Unifi and Plaintiff, there is no evidence that 25 airline passengers are an intended third-party beneficiary. The connection between Unifi 26 providing services for an airport, the employment of Plaintiff by Unifi, and the purchase of 27 a ticket to travel through that airport is too attenuated on its face and left unsupported by 28 any evidence as argued by Unifi. Moreover, the Court need not address Unifi’s argument | Pappas could compel Plaintiff's claims against him to arbitration as Pappas is opposing 2 || the instant motion. (See Doc. No. 26.) 3 Accordingly, to the extent Unifi sought to compel Plaintiff's claims against Pappas 4 || to arbitration, the instant motion is denied. 5 CONCLUSION 6 For the reasons discussed above, the Court hereby ORDERS: 7 1. Defendant Unifi Aviation LLC’s motion to compel arbitration is GRANTED 8 to claims asserted against it and DENIED as to the claims asserted against Defendant 9 ||Arthur Menelaus Pappas. Plaintiff Pazel Jackson must arbitrate his claims against 10 || Defendant Unifi Aviation LLC pursuant to the terms of the Arbitration Agreement. 11 2. The instant action is STAYED as to all claims asserted by Plaintiff Pazel 12 || Jackson against Defendant Unifi Aviation LLC pending arbitration. 13 3. Defendant Unifi Aviation LLC and Plaintiff Pazel Jackson must file a joint 14 || status report addressing the status of arbitration is due no later than November 18, 2026, 15 || with specific details including the date when the parties submitted the matter to arbitration. 16 4. Every sixty days thereafter, Defendant Unifi Aviation LLC and Plaintiff 17 ||Pazel Jackson must file joint status reports informing the Court about the status of 18 || arbitration, including specific details regarding subsequent dates, any changes to dates, and 19 || actions the parties are taking to facilitate the process. 20 5. No later than September 23, 2026, Plaintiff Pazel Jackson and Defendant 21 || Arthur Menelaus Pappas are to contact the chambers of Magistrate Judge Michelle M. 22 || Pettit to reset an Early Neutral Evaluation and Case Management Conference. (See Doc. 23 || No. 35.) 24 IT IS SO ORDERED. 25 Dated: September 18, 2026 © g 26 Hon. Anthony J.Battaglia 27 United States District Judge 28 te