Filed 6/29/26 Abelowitz v. Pediatric Associates Holdings CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STEVEN ABELOWITZ,

Plaintiff and Respondent, G065579

v. (Super. Ct. No. 30-2024-
01415810)
PEDIATRIC ASSOCIATES
HOLDINGS, LLC et al., OPINION

Defendants and Appellants.

Appeal from an order of the Superior Court of Orange County,
Sheila Recio, Judge. Affirmed. Requests for judicial notice. Denied.
Kirkland & Ellis, David Horowitz, Michael Shipley, Kristin Rose
and Tucker Ring for Defendants and Appellants Pediatric Associates
Holdings, Pediatric Associates Holding, PA California MSO, Coastal Kids,
Craig Frances, Kendall Garrison, Brian Jackson, Chester Slonaker, Michael
Manocchio and Andrew Thompson.
Miller Barondess, Amnon Z. Siegel and Colin H. Rolfs for
Defendants and Appellants Summit Partners and TPG.
Cohen Williams, Marc S. Williams, Kathleen M. Erskine, Reuven
L. Cohen and Talia Nissimyan for Plaintiff and Respondent.
* * *
In this dispute between a medical doctor and former owner of a
pediatric practice, plaintiff Steven Abelowitz, and the defendant entities
which purchased and invested in the nonclinical aspects of the practice,
defendants appeal after the trial court denied their motion to compel
arbitration of all Abelowitz’s causes of action. The court determined part of
the complaint’s requested relief constitutes public injunctive relief under the
unfair competition law (Bus. & Prof. Code, § 17200 et seq.; UCL), but certain
provisions of the relied-upon arbitration clauses preclude Abelowitz from
obtaining such relief in any forum. It concluded those provisions are,
therefore, unenforceable under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945
(McGill), and, in turn, a “poison pill” provision in the arbitration clauses
renders the clauses void in their entirety.
Defendants challenge the trial court’s determination, focusing
solely on whether the arbitration clauses preclude Abelowitz from obtaining
public injunctive relief in an arbitral forum. They argue public injunctive
relief may be obtained through an individual UCL cause of action, and
because nothing in the clauses’ language prevents an arbitrator from issuing
an injunction as to the parties in this case, their provisions do not violate
McGill. We conclude otherwise. Certain of the arbitration clauses’ provisions
considerably and significantly limit available UCL public injunctive relief in

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ways that “seriously compromise the public purposes the [UCL was] intended
to serve.” (McGill, supra, 2 Cal.5th at p. 961.) Consequently, they are just as
unenforceable as those considered in McGill. Because the undisputed
resulting impact of the clauses’ poison pill is the voiding of the clauses in
their entirety, the trial court properly denied defendants’ motions to compel
arbitration and we affirm the challenged order.
FACTS
Abelowitz is a pediatrician based in Orange County who founded
a pediatric practice, Coastal Kids, in 2001. In 2020, Abelowitz entered into a
transaction involving the sale of nonclinical aspects of Coastal Kids to
defendant Pediatric Associates Holdings and its affiliates, who are also
defendants in this case. Defendants Summit Partners and TPG are private
investment firms that invested in those entities. The 2020 transaction was
effectuated through numerous written agreements.
After a disputed series of events which led to the transfer of
Abelowitz’s ownership interest in Coastal Kids to another doctor and
Abelowitz’s termination, Abelowitz sued Pediatric Associates Holdings and
its affiliates, Summit Partners, TPG, and other entities and individuals
connected to them. The complaint alleges a variety of contract-based and
other causes of action: wrongful termination, defamation, breach of contract,
breach of the covenant of good faith and fair dealing, intentional interference
with contractual relations, failure to pay wages, retaliation in violation of
Business and Professions Code section 2056, and violation of the UCL. In
addition to various types of damages and compensation, the complaint seeks
declaratory and injunctive relief. Regarding the latter, it expressly prays for
“[a]n order and/or judgment enjoining [d]efendants from engaging in the
corporate practice of medicine.”

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 Not long after the filing of the complaint, defendants filed
motions to compel arbitration. They argued that two agreements referenced
in the complaint, which were part of the 2020 transaction, contain nearly
identical arbitration clauses which “require arbitration of all of Abelowitz’s
causes of action, including against non-signatory defendants.”1
The one paragraph arbitration clause they relied upon provides,
in relevant part: “The [p]arties agree that all disputes, claims, or
controversies that may arise between them relating to this [a]greement or the
breach thereof . . . shall be submitted to arbitration by a single arbitrator in
Orange County, in accord with the procedures of JAMS/Endispute in effect at
the time any party demands arbitration, or such other procedures as the
parties may agree upon . . . . Arbitration shall proceed solely on an individual
basis without the right for any claims to be arbitrated on a class action basis
or on bases involving claims brought in a purported representative capacity
on behalf of others. The arbitrator’s authority to resolve and make written
awards is limited to claims between [Abelowitz] and [the other signatory of
this agreement] alone. Claims may not be joined or consolidated unless
agreed to in writing by all parties. No arbitration award or decision will have
any preclusive effect as to issues or claims in any dispute with anyone who is
not a named party to the arbitration. Notwithstanding any other provision in
this [a]greement, and without waiving either party’s right of appeal, if any
portion of this class action waiver provision is deemed invalid or
unenforceable, then the entire arbitration clause in this [a]greement (other
than this sentence) shall be void.”

1 Because the two arbitration clauses are identical in all relevant

aspects, we hereafter refer to them in the singular.

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 Abelowitz opposed the motions on multiple grounds. First, he
contended the entire arbitration clause was unenforceable. So his argument
went, certain terms of the clause precluded him from obtaining public
injunctive relief in any forum, rendering those terms unenforceable under
McGill. And, the unenforceability of those terms triggered the clause’s
“poison pill,” resulting in the entire arbitration clause being void and
unenforceable. Alternatively, he argued a couple of the causes of action are
not subject to arbitration because they “have nothing to do with the
obligations contained in the [agreements] containing the arbitration clauses,”
and the arbitration clauses do not apply to 11 of the 13 defendants because
they were not signatories to the agreements.
At the conclusion of a hearing on the motions, the trial court
denied them. Its written order, which was the same as a tentative ruling
provided before the hearing, the court agreed with Abelowitz’s argument
about the arbitration clause being void in its entirety. The court found the
complaint sought public injunctive relief, but the arbitration clause precluded
him from obtaining that relief because it “limit[ed] the arbitrator’s authority
‘to claims between [Abelowitz] and [the signatory defendants] alone.’” This
violated McGill, and the arbitration clause’s poison pill dictated the entire
clause was, therefore, void.
Defendants timely appealed.
DISCUSSION
Defendants argue the trial court erred in denying their motions
to compel because the arbitration clause is not unenforceable under McGill.
Specifically, they argue it does not bar Abelowitz from obtaining public
injunctive relief from an arbitrator as part of his individual cause of action
brought under the UCL, meaning it does not make public injunctive relief

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unavailable in all forums. Consistent with the concerns which led McGill to
declare the arbitration provision before it unenforceable, we conclude
provisions of the arbitration clause before us are unenforceable because they
limit available UCL public injunctive relief in such a manner and to such an
extent that they “seriously compromise the public purposes the statute[]
[was] intended to serve.” (McGill, supra, 2 Cal.5th at p. 961.) That
unenforceability triggers the clause’s poison pill, meaning the entire clause is
void and Abelowitz may proceed on the entirety of the complaint in a judicial
forum.
I.
THE MCGILL RULE
In McGill, a credit card account holder filed a class action against
the issuing bank alleging it used deceptive practices in offering a “‘credit
protector’” insurance type plan to credit card customers. (McGill, supra, 2
Cal.5th at p. 952.) Among the claims were alleged violations of the
Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), the UCL,
and the false advertising law (Bus. & Prof. Code, § 17500 et seq.), and among
the relief sought was an injunction prohibiting the bank “from continuing to
engage in its allegedly illegal and deceptive practices.” (McGill, at p. 953.)
More specifically, the plaintiff sought to enjoin allegedly “‘unfair, deceptive,
untrue, and misleading advertising.’” (Id. at p. 957.)
Responding to a motion to compel arbitration filed by the bank,
the plaintiff argued the relied upon arbitration agreement was unenforceable
because it prohibited the pursuit of claims for “public injunctive relief” in any
forum. (McGill, supra, 2 Cal.5th at p. 953.) The Supreme Court agreed.
In explaining its reasoning, the court first discussed the
distinction between public injunctive relief and private injunctive relief.

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Public injunctive relief is “relief that ‘by and large’ benefits the general public
[citation] and that benefits the plaintiff, ‘if at all,’ only ‘incidental[ly]’ and/or
as ‘a member of the general public.’” (McGill, supra, 2 Cal.5th at p. 955.) In
contrast, “[r]elief that has the primary purpose or effect of redressing or
preventing injury to an individual plaintiff—or to a group of individuals
similarly situated to the plaintiff—does not constitute public injunctive
relief,” and is instead considered private injunctive relief. (Ibid.) In providing
examples of public injunctive relief, the court explained that an injunction
under the CLRA “against a defendant’s deceptive methods, acts, and
practices ‘generally benefit[s]’ the public ‘directly by the elimination of
deceptive practices.” (McGill, at p. 955) Likewise, an injunction under the
UCL or the false advertising law against deceptive advertising practices “‘is
designed to prevent further harm to the public at large rather than to redress
or prevent injury to a plaintiff.’” (McGill. at p. 955.)
The court then turned to the particular relief sought by the
plaintiff and the arbitration agreement at issue. Regarding the former, the
court concluded the enjoining of false, deceptive, and misleading advertising
practices in the sale of the credit protector plan to credit card customers was
public injunctive relief. (McGill, supra, 2 Cal.5th at pp. 956–957.) In contrast,
the plaintiff’s request for “‘injunctive relief in the form of restitution and/or
disgorgement’” was not public injunctive relief. (Id. at p. 957, fn. 1.) And
regarding the agreement, the court noted it did not have to construe its
provisions because the parties agreed it precluded the plaintiff from pursuing
public injunctive relief in any forum—i.e. both court and arbitration. (Id. at p.
956.)
In concluding the complete prohibition on public injunctive relief
was not permissible, rendering the arbitration provision invalid and

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unenforceable, the court relied on the principle that “‘a law established for a
public reason cannot be contravened by a private agreement.’” (McGill, supra,
2 Cal.5th at p. 961, quoting Civ. Code, § 3513.) It explained that, among other
things, this means a contractual waiver of a statutory provision is not valid if
it seriously compromises the public purpose that the statute was intended to
serve. (McGill, at p. 961.) “By definition, the public injunctive relief available
under the UCL, the CLRA, and the false advertising law . . . is primarily ‘for
the benefit of the general public.’” (Ibid.) With that purpose in mind, the
court concluded “the waiver in a predispute arbitration agreement of the
right to seek public injunctive relief under th[o]se statutes would seriously
compromise the public purposes the statutes were intended to serve.” (Ibid.)
Thus, insofar as an arbitration provision “purports to waive [the] right to
request in any forum such public injunctive relief, it is invalid and
unenforceable under California law.” (Ibid.) Some courts have subsequently
referred to this as the McGill rule. (See, e.g., Maldonado v. Fast Auto Loans,
Inc. (2021) 60 Cal.App.5th 710 (Maldonado); Mejia v. DACM Inc. (2020) 54
Cal.App.5th 691, 706 (Mejia).)
II.
ANALYSIS
As compared to the trial court, the relevant disputed matters on
appeal are limited. The parties generally understand McGill to preclude
enforcement of an agreement which prevents a party from seeking public
injunctive relief in any forum. For purposes of this appeal, it is undisputed
Abelowitz seeks public injunctive relief and the arbitration agreement
precludes him from seeking such relief in court.2 The crux of the parties’

2 Because there is no dispute about whether the UCL injunctive

relief sought by Abelowitz constitutes public injunctive relief, we do not

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dispute revolves around interpreting the agreement as it relates to relief in
arbitration. Defendants contend the agreement does not preclude Abelowitz
from obtaining public injunctive relief in arbitration. Abelowitz argues it
does.
Critical to our resolution of this issue are well-established
principles of contract interpretation. Our mission is to give effect to the
mutual intention of the parties at the time they formed the contract. (Civ.
Code, § 1636; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524.) We discern
such intent from the written contract alone, if possible, giving the words their
ordinary and popular meaning unless a specialized or technical meaning is
expressed or evident. (Civ. Code, §§ 1639, 1644; Hess, at p. 524.) Provisions
must be read in their context and the whole of the contract must be
considered (Civ. Code, § 1641; Zalkind v. Ceradyne, Inc. (2011) 194
Cal.App.4th 1010, 1027), with due attention paid “to the circumstances under
which it was made and the matter to which it relates.” (Mountain Air
Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 752;
see Civ. Code, § 1647). In the end, we must give effect to all provisions,
avoiding any interpretation which would render words or clauses inoperative

address what appear to be conflicting views between state and federal courts
about what falls within such a category. (See Ramsey v. Comcast Cable
Communications, LLC (2023) 99 Cal.App.5th 197, 207–212 [describing
conflict between state and federal courts, and adopting state court analysis];
Hodges v. Comcast Cable Communications, LLC (9th Cir. 2021) 21 F.4th 535,
544–546 [criticizing conclusions in Mejia, supra, 54 Cal.App.5th at pp. 702–
703, and Maldonado, supra, 60 Cal.App.5th at pp. 720–721, that plaintiffs
were pursuing public injunctive relief].) We also deny the requests for judicial
notice filed by both sides as we find the matters to which they relate
irrelevant. (See OneTaste Inc. v. Netflix, Inc. (2025) 116 Cal.App.5th 174, 194
[judicially noticed evidence must be relevant to disposition of matter].)

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or meaningless. (Civ. Code, § 1641; Rebolledo v. Tilly’s, Inc. (2014) 228
Cal.App.4th 900, 923.)
Here, the arbitration clause precludes arbitration of class based
or representative claims. In other words, all claims to be arbitrated must be
brought on an individual basis. This limitation, alone, does not prevent
Abelowitz from obtaining his desired public injunctive relief under the UCL
because, as McGill recognized, such relief is available in conjunction with an
individual claim. (See McGill, supra, 2 Cal.5th at pp. 959–961.)
The same is true of other terms that limit the claims to which the
arbitrator’s authority extends. Specifically, the agreement limits claims to
those between Abelowitz and the other signatories of the agreement, and it
disallows joinder or consolidation of claims absent a written agreement
otherwise. Neither of these provisions impact Abelowitz’s ability to obtain
public injunctive relief from an arbitrator because he may obtain such relief
as part of his individual UCL claim irrespective of joinder or consolidation.
(See McGill, supra, 2 Cal.5th at pp. 959–961.)
Everything, therefore, turns on the following term in the
arbitration clause: “No arbitration award or decision will have any preclusive
effect as to issues or claims in any dispute with anyone who is not a named
party to the arbitration.” Defendants argue this preclusion limitation is
unlike any provision considered in cases cited by Abelowitz which invalidated
arbitration provisions pursuant to McGill. (See, e.g., Jack v. Ring LLC (2023)
91 Cal.App.5th 1186, 1194 [arbitrator may award injunctive relief “‘only in
favor of the individual party seeking relief and only to the extent necessary to
provide relief warranted by that party’s individual claim’”]; Maldonado,
supra, 60 Cal.App.5th at p. 716 [“arbitrator may only award relief on behalf
of the named parties”]; Mejia, supra, 54 Cal.App.5th at p. 694 [arbitrator may

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only determine rights and obligations of named parties and may not make
“award for the benefit of, or against anyone other than a named party”].) So
their argument goes, the preclusion limitation “does not limit the binding
force of an arbitral judgment as to the parties in this case, including a
judgment that includes a public injunction,” and thus “does not limit, much
less fully curtail . . . the arbitrator’s ability to issue a public injunction.” Such
an argument overlooks key facets of a UCL public injunction.
The purpose of the UCL “‘is to protect both consumers and
competitors by promoting fair competition in commercial markets for goods
and services,’” and the “‘primary form of relief’” to ensure that protection “‘is
an injunction.’” (McGill, supra, 2 Cal.5th at p. 954.) In turn, a public
injunction is “a substantive statutory remedy that the Legislature . . . has
made available to those . . . who meet standing requirements for filing a
private action” (id. at p. 965, italics omitted), and its purpose is to provide
relief benefiting the general public (id. at p. 955). Relief cannot be for the
benefit of members of the general public if the injunction issued by the

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arbitrator has no preclusive effect in any dispute defendants may have with
another person involving the same issue.3
In addition, one of the ways in which a public injunction is
enforceable is through a civil action, “in the name of the people of the State of
California,” by the Attorney General, a district attorney, or certain county
counsels or city attorneys. The available relief in such an action is a civil
penalty in an amount not to exceed $6,000 for each day the conduct
constituting the violation continues, with the money to ultimately be paid to
the State and/or local government depending on the circumstances. (Bus. &
Prof. Code, § 17207, subds. (a), (b).) Allowing the arbitration clause to be
enforced as-is would strip away this significant facet of the UCL scheme
because any injunction issued by an arbitrator could not be relied on in
establishing the basis for a violation. In effect, the arbitration clause’s

3 Defendants implore us to agree with Patrick v. Running

Warehouse, LLC (9th Cir. 2024) 93 F.4th 468, 478, which found that a
preclusion provision identical to the one in this case did not conflict with
McGill. Patrick reasoned the provision simply encompassed the rule
established in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 833, that
an arbitration award generally does not have nonmutual issue preclusive
effect unless the arbitral parties agreed it would. (Patrick, at p. 478.) We
disagree with Patrick’s conclusion. (See Nunez v. Nevell Group, Inc. (2019) 35
Cal.App.5th 838, 847–848 (Nunez) [federal authority not binding on state law
matters].) Vandenberg applied public policy considerations to nonmutual
collateral estoppel in the arbitral arena, generally. In contrast, McGill
specifically concerned public injunctive relief, and in that context determined
public policy precludes contractually removing the ability to obtain such relief
in any forum. The public policy dictates of McGill mean that when a claim
seeking public injunctive relief goes to arbitration (or court), any resulting
injunction must be allowed to have the characteristics and enforceability of a
public injunction lest it be the functional equivalent of a prohibition on
obtaining such relief. Contractually prohibiting nonmutual issue preclusion
removes a key characteristic of the relief.

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preclusion limitation would limit the universe of injunction enforcement to a
matter pursued by Abelowitz himself.
Predispute arbitration provisions, like the one before us, that
limit available UCL public injunctive relief to injunctions devoid of a critical
characteristic of public injunctive relief and that are incapable of being
enforced through mechanisms provided for by the Legislature give rise to the
same concerns expressed in McGill. Like a wholesale waiver of the right to
seek public injunctive relief, they “seriously compromise the public purposes
the statutes were intended to serve.” (McGill, supra, 2 Cal.5th at p. 961.)
Thus, consistent with McGill, they are “invalid and unenforceable under
California law.” (Ibid.)
Defendants urge us to follow DiCarlo v. MoneyLion, Inc. (9th Cir.
2021) 988 F.3d 1148, asserting it “is legally and factually indistinguishable.”
We disagree and decline to do so. First, DiCarlo is not binding on us. (Nunez,
supra, 35 Cal.App.5th 838, 847–848 [federal decisional authority does not
bind California appellate courts on state law matters].) Second, the
arbitration agreement and the issue considered in DiCarlo are meaningfully
different than those before us. There, the agreement contained an “all-
remedies clause” which “‘authorize[d]’ the arbitrator to ‘award all [injunctive]
remedies available in an individual lawsuit under [California] law.’”
(DiCarlo, at pp. 1153, 1156.) And the dispute resolved by the Ninth Circuit
was whether public injunctive relief is available in an individual lawsuit or
whether it may only be secured by a person “acting as a private attorney
general.” (Id. at p. 1153.) Relying on McGill, the court concluded an
individual lawsuit may seek public injunctive relief. (DiCarlo, at p. 1156.)
And because the arbitration agreement expressly placed no limitation on

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awardable injunctive relief, the court determined its provisions were not
invalid under the McGill rule. (DiCarlo, at p. 1156.)
The upshot of our conclusion that certain of the arbitration clause
provisions are not enforceable is undisputed. The clause’s poison pill
expressly renders the entire clause void. Accordingly, the trial court did not
err in denying defendants’ motions to compel arbitration.
DISPOSITION
The order is affirmed. Abelowitz is entitled to costs on appeal.

DELANEY, J.

WE CONCUR:

MOTOIKE, P. J.

SANCHEZ, J.

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