Judge Blaine K. Bowman, Case Number: 37-2021-00050085-CU-OE-CTL, Date: 2024-04-19 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2021-00050085-CU-OE-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Other employment Motion Hearing (Civil) 37-2021-00050085-CU-OE-CTL GINARD VS CUBIC CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff's amended request for judicial notice is GRANTED as to items 1 and 2 and DENIED as to item 3. Defendants Cubic Corporation and Freddy Paquian's objections to item 3 in Plaintiff's amended request for judicial notice is SUSTAINED.

Defendants' objections to the Declaration of Diane Ginard are OVERRULED.

The court then rules as follows. Defendants Cubic Corporation and Freddy Paquian's motion to compel arbitration is GRANTED. 9 U.S.C. § 2.

Defendants move to compel arbitration pursuant to the Arbitration Agreement signed by Plaintiff as part of Plaintiff's onboarding process with Cubic Corporation. The Arbitration Agreement includes the following provisions: . . . .

2. The Company and Employee mutually consent to the resolution by final and binding arbitration of all claims or controversies arising out of or in any way related to Employee's recruitment, employment, or termination of employment, that the Company may have against Employee or that Employee may have against the Company and/or against its officers, directors, supervisors, employees or agents (hereafter 'Claims'), with the exception of the claims listed below in paragraph four. Final and binding arbitration shall provide the sole and exclusive remedy and forum for all such Claims. The statutory, common law and contract claims covered by this Agreement include, but are not limited to, claims for: wages or other compensation due; breach of any contract or covenant (express or implied); tort claims (including, but not limited to, defamation, invasion of privacy, infliction of emotional distress, tortious interference, or whistle blowing); wrongful termination; retaliation; discrimination or harassment (including, but not limited to, claims based on race, gender, religion, national origin, age, medical condition, disability or other legally protected traits); benefits (except where the benefit or pension plan dictates a different dispute resolution procedure); and violation of any applicable federal, state, local or other governmental law, statute, regulation, or ordinance.

. . . .

4. . . . . this Agreement shall not apply to the following: . . . .

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3099636 10 CASE NUMBER: CASE TITLE: GINARD VS CUBIC CORPORATION [IMAGED] 37-2021-00050085-CU-OE-CTL 4.4 claims under Title VII of the Civil Rights Act of 1964 and any torts related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention IF either: (a) Employee's employer holds a prime contract with the U.S. Department of Defense ('DoD') awarded after February 17, 2010 for an amount exceeding $1,000,000; OR (b) Employee's employer holds a subcontract for an amount exceeding $1,000,000 under a prime contract awarded by the DoD, AND Employee performs work related to such subcontract; and 4.5 any other claim that cannot, by statute, be subject to this Agreement.

Plaintiff's operative First Amended Complaint alleges causes of action for 1) Gender Discrimination [Government Code §12940(a)], 2) Hostile Work Environment [Government Code §12940(j)], 3) Retaliation [Government Code §12940(m)], 4) Whistleblower Retaliation [Labor Code §1102.5], 5) Wrongful Termination in Violation of Public Policy [Government Code §12940 and 1102.5], 6) Failure to Prevent Harassment, Discrimination and Retaliation [Government Code §12940(k)] and 7) Negligent Supervision.

Based on the broad language of paragraph 2 ('all claims or controversies arising out of or in any way related to Employee's recruitment, employment, or termination of employment') as well as the specific inclusion of claims for 'wrongful termination; retaliation; discrimination or harassment (including, but not limited to, claims based on race, gender, religion, national origin, age, medical condition, disability or other legally protected traits)' the court finds Defendants establish that all of Plaintiff's claims are subject to arbitration.

In opposition Plaintiff first argues that Plaintiff's claims fall within the exception of paragraph 4.4. As set forth above, paragraph 4.4 excepts from arbitration claims 'arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention' but only if certain conditions are met. The first condition to be satisfied is that either 1) employee's employer (Cubic Corporation) holds a prime contract with the DOD awarded after February 17, 2010 for an amount exceeding $1,000,000, or 2) the employee's employer (again Cubic Corporation) holds a subcontract for an amount exceeding $1,000,000 under a prime contract awarded by the DoD.

As evidence Plaintiff submits Plaintiff's own declaration wherein Plaintiff states: 5. Based upon my previous employment (with Cubic Corporation), I have personal knowledge that Cubic Corporation holds multiple prime contracts with the Department of Defense awarded after February 17, 2010, for amounts exceeding $1,000,000.00.

6. I am aware that in 2013, Cubic Defense Systems, a subsidiary of Cubic Corporation was awarded a $112,000,000 contract from the Naval Air Systems Command. A true and correct copy of the Cubic Corporation webpage announcing such awarded contract is attached to this declaration as Exhibit 1).

Plaintiff also submits an amended request for judicial notice seeking judicial notice of 'Federal Contracts Listing; Federal Procurement Data System.' As set forth above, Plaintiff's request for judicial notice of this document is DENIED. However, even if the court were to take judicial notice of this document the result would not change. Neither the contract purportedly awarded to Cubic Defense Systems, nor the contract(s) purportedly awarded to Cubic Simulation Systems, Inc. satisfy the 'employee's employer' requirement. It is undisputed that Plaintiff's employment was with Cubic Corporation.

Paragraph 5 of Plaintiff's declaration references DOD contracts specifically with Cubic Corporation.

However, Plaintiff fails to address the second condition for application of paragraph 4.4 ('AND Employee performs work related to such subcontract'). Specifically, Plaintiff fails to submit any evidence that Plaintiff performed work related to these purported contracts. Absent such evidence Plaintiff fails to establish that any of Plaintiff's claims fall under the paragraph 4.4 exception. This same analysis would Calendar No.: Event ID: TENTATIVE RULINGS

3099636 10 CASE NUMBER: CASE TITLE: GINARD VS CUBIC CORPORATION [IMAGED] 37-2021-00050085-CU-OE-CTL apply to the contracts purportedly awarded to Cubic Defense Systems and Cubic Simulation Systems.

Plaintiff's second argument is that the Arbitration Agreement is unconscionable and unenforceable as a result. Preliminarily, the party opposing arbitration bears the burden of proving unconscionability.

Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1158.

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, sets forth the applicable unconscionability analysis.

'[U]nconscionability has both a 'procedural' and a 'substantive' element,' the former focusing on ' 'oppression' ' or ' 'surprise' ' due to unequal bargaining power, the latter on ' 'overly harsh' ' or ' 'one-sided' ' results. (Id. at pp. 486-487.) 'The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.' (Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1533 (Stirlen).) But they need not be present in the same degree. 'Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' (15 Williston on Contracts (3d ed. 1972) § 1763A, pp. 226-227; see also A & M Produce Co., supra, 135 Cal.App.3d at p. 487.) In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.

Armendariz, 24 Cal.4th at 114.

The only evidence Plaintiff submits to establish procedural unconscionability is evidence that Plaintiff was required to sign the Arbitration Agreement as a condition of Plaintiff's employment. Plaintiff argues this 'take-it or leave-it oppression' demonstrates procedural unconscionability. However, [a]rbitration clauses in employment contracts have been upheld despite claims that the clauses were unconscionable because they were presented as part of an adhesion contract on a take-it-or-leave-it basis. (Lagatree, supra, 74 Cal.App.4th at pp. 1125–1126, 88 Cal.Rptr.2d 664, citing 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1212–1213, 78 Cal.Rptr.2d 533; Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 53 Cal.Rptr.2d 515; Spellman v. Securities, Annuities & Ins.

Services, Inc. (1992) 8 Cal.App.4th 452, 10 Cal.Rptr.2d 427.) In finding the arbitration clause in Lagatree was not unconscionable, the court noted that, 'as Gilmer and its progeny make clear, the compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on grounds of coercion or for lack of voluntariness.' (74 Cal.App.4th at p. 1129, 88 Cal.Rptr.2d 664.) Giuliano, 149 Cal.App.4th at 1292. See also, Chamber of Commerce of the United States of America v. Bonta (9th Cir. 2023) 62 F.4th 473, 489.

The court finds the evidence Plaintiff relies on insufficient to meet Plaintiff's burden of establishing procedural unconscionability.

As explained in Armendariz, Plaintiff must show both procedural and substantive unconscionability to defeat enforcement of the Arbitration Provision. Because Plaintiff fails to establish any procedural unconscionability, the court finds Plaintiff fails to meet Plaintiff's burden of proving unconscionability.

See also, Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 736. Even if the court were to reach the issue of substantive unconscionability the result would not change. Plaintiff's only argument on this issue is that the Arbitration Agreement precludes the award of attorney's fees and costs to Plaintiff should Plaintiff prevail on Plaintiff's Fair Employment and Housing Act claims. However, paragraph 7.5 of the Arbitration Agreement specifically allows the arbitrator to award attorney's fees and costs to the prevailing party 'as authorized by law.' Such provision does not support a finding of substantive Calendar No.: Event ID: TENTATIVE RULINGS

3099636 10 CASE NUMBER: CASE TITLE: GINARD VS CUBIC CORPORATION [IMAGED] 37-2021-00050085-CU-OE-CTL unconscion9ability.

The court stays this matter pending completion of arbitration. 9 U.S.C. § 3.

The court sets a Status Conference for October 25, 2024 at 10:30am.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

motion.

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