Judge: Blaine K. Bowman, Case: 37-2023-00044171-CU-WT-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2023-00044171-CU-WT-CTL MARTINEZ VS DAVIES ELECTRIC CO INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Plaintiff's evidentiary objections to the declarations of Robert Davies, Jr. and Andy Berg are all OVERRULED. Defendant Davies Electric Co., Inc.'s evidentiary objections to the declarations of Roberto Martinez and Francisco Loayza are all OVERRULED.

The court then rules as follows. Defendant Davies Electric Co., Inc.'s motion to compel arbitration is GRANTED. 9 U.S.C. § 2.

Davies seeks to enforce the arbitration provision contained in the 'Memorandum of Understanding to All Agreements Collectively Bargained Between Local Union 569 International Brotherhood of Electrical Workers and the San Diego Chapter National Electrical Contractors Association' ('MOU'). The MOU was signed by representatives of IBEW Local 569 and NECA on May 1, 2014. The MOU preceded the collective bargaining agreement entered into between IBEW Local 569 and NECA titled 'SOUND AGREEMENT 2019 - 2022 Between Local 569, International Brotherhood Of Electrical Workers, AFL-CIO And San Diego County Chapter National Electrical Contractors Association, Inc. Covering San Diego and Imperial Counties, California Effective June 1, 2019 through May 31, 2022' and referred to by the parties as the 2019 Sound Agreement. The MOU provides in full: The Union and the Employer intend that the Grievances-Disputes provisions in these Agreements shall be the exclusive method of resolving all disputes between the Employer and the Union and the employees covered by these Agreements. Such disputes shall include any statutory claims relating to the payment of wages for time worked, training time, rest and meal periods, or overtime pay, including any alleged violations of the federal Fair Labor Standards Act, the California Labor Code, Wage Order 16 of the Industrial Welfare Commission of the State of California, California Business & Professions Code section 17200 et seq., federal and state prevailing wage laws, and all other wage and hour related matters (hereinafter referred to collectively as 'wage and hour claims or disputes'). The parties agree that any employee's or employees' wage and hour claims or disputes shall be resolved through the grievance and arbitration process provided for in these Agreements. All wage and hour claims or disputes shall be filed within one (1) year of the alleged violation on which the alleged hour claim or dispute is based.

Only the Union has the right to assert collective or class action grievances or claims on behalf of more than one employee. All such grievances shall be initiated and processed in accordance with the above grievance and arbitration provisions in these Agreements. The employees (by and through the Union) shall be provided all substantive rights and remedies available under applicable Jaw. Where the Union Calendar No.: Event ID:  TENTATIVE RULINGS

3100478  9 CASE NUMBER: CASE TITLE:  MARTINEZ VS DAVIES ELECTRIC CO INC [IMAGED]  37-2023-00044171-CU-WT-CTL chooses not to prosecute a grievance for wage and hour claims or disputes, an employee may initiate a grievance for wage and hour claims or disputes under these Agreements, and the employee shall be provided all substantive remedies that he/she would otherwise be entitled to under applicable law.

Notwithstanding the preceding sentence, an individual employee cannot pursue class and/or collective wage and hour claims or disputes or grievances on behalf of more than the individual employee. It is the goal of the parties to swiftly and fairly address and resolve all employee concerns. The employer and the Union agree to work swiftly and cooperatively to resolve and remediate, if necessary, any disputes that arise. This section applies only to statutory claims that authorize the use of a class or collective action procedure.

In opposition, Plaintiff first argues that Davies has not met its burden of proving that a valid arbitration agreement exists. Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158 sets forth the relevant analysis.

The burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence: 'Because the existence of the agreement is a statutory prerequisite to granting the [motion or] petition, the [party seeking arbitration] bears the burden of proving its existence by a preponderance of the evidence.' (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal).) However, the burden of production may shift in a three-step process.

First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' (Rosenthal, supra, 14 Cal.4th at p. 413, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 279 Cal.Rptr.3d 112 (Bannister)) . . . . If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.

If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. (See Condee, supra, 88 Cal.App.4th at p. 219, 105 Cal.Rptr.2d 597.) . . . .

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party.

(Rosenthal, supra, 14 Cal.4th at p. 413, 58 Cal.Rptr.2d 875, 926 P.2d 1061.) Gamboa, 72 Cal.App.5th at *2 - *3.

In its moving papers Davies submits the MOU and both the 2019 Sound Agreement and the subsequent (2023-2026) Sound Agreement. Davies also submits evidence that, Davies is and was a member of the NECA at all relevant times; as such, the terms and conditions of employment of all of Davies' electrical worker employees were and are governed by the MOU and the applicable collective bargaining agreements, including the 2019 Sound Agreement; throughout Plaintiff's employment with Davies, Plaintiff was a member of the IBEW Local 569; as such, the terms and conditions of Plaintiff's employment with Davies were governed by the MOU and the applicable successive collective bargaining agreements, including the 2019 Sound Agreement.

The court finds such evidence sufficient to meet Davies' burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' Thus, the burden shifts to Plaintiff to come forward with evidence challenging the authenticity of the MOU and 2019 Sound Agreement.

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3100478  9 CASE NUMBER: CASE TITLE:  MARTINEZ VS DAVIES ELECTRIC CO INC [IMAGED]  37-2023-00044171-CU-WT-CTL Plaintiff raises numerous arguments against the applicability of the MOU, none of which the court finds persuasive. Plaintiff first raises issues as to the sufficiency of the declarations Davies relies on. As set forth above, the court overrules Plaintiff's evidentiary objections. The court finds the Declaration of Robert Davies, Jr. and the Declaration of Andy Berg contain sufficient foundation to support the statements contained therein. The error in Robert Davies' declaration as to the start date of Plaintiff's employment with Davies does not change the analysis. Nor does the absence of a declaration from a IBEW Local 569 official. The Robert Davies and Berg declarations are sufficient to establish the applicability of the MOU and 2019 Sound Agreement to Plaintiff's employment with Davies. Specific evidence from Davies that Plaintiff's employment with Davies was governed by the MOU and 2019 Sound Agreement negates Plaintiff's letter of assent argument. Plaintiff's argument that Berg and Davies do not specifically state that Plaintiff was bound to the MOU and the Sound Agreement fails for the same reason. Plaintiff's speculation of a possibility that a different collective bargaining agreement applies, or that Davies is not bound by the 2019 Sound Agreement, is insufficient to meet Plaintiff's burden of producing evidence to challenge the authenticity of the MOU and 2019 Sound Agreement.

The MOU in its title states that it applies to 'All Agreements Collectively Bargained Between' IBEW Local 569 and NECA. Davies submits evidence that it was the intent of the parties that the MOU would apply both retroactively and prospectively to all collective bargaining agreements bargained between NECA and IBEW Local 569. Plaintiff offers no evidence in opposition. As such, and by the express reference to 'All Agreements Collectively Bargained' Davies establishes that the MOU is applicable to the 2019 Sound Agreement. Davies also relies on authority allowing a collective bargaining agreement and memorandum of understanding to be concurrently applicable. See, Oswald v. Murray Plumbing and Heating Corporation (2022) 82 Cal.App.5th 938. Such authority supports a concurrently applicable MOU and 2019 Sound Agreement in this case. Given the broad ('All Agreements') language of the MOU, the absence of a reference to the MOU in the 2019 Sound Agreement does not require a different interpretation. Plaintiff's argument that sections 2.04 and 2.09 of the 2019 Sound Agreement are unclear is not dispositive in light of the terms of the MOU specifically applicable to disputes between an employer and the employees. Plaintiff's reliance on section 2.03 of the 2019 Sound Agreement and the parole evidence rule are misplaced. The evidence before the court is that the MOU and the 2019 Sound Agreement were separately collectively bargained agreements. Plaintiff fails to establish that any term of the 2019 Sound Agreements precludes the applicability of the concurrent MOU. To the extent Plaintiff also relies on the incorporation criteria discussed in Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, the court finds the incorporation of 'All Agreements Collectively Bargained' in the MOU a 'clear and unequivocal' incorporation of all collective bargaining agreements between NECA and IBEW Local 569, including the 2019 Sound Agreement. Davies also submits evidence that both the IBEW Local 529 and NECA consented to the MOU, and that the terms are easily available to the contracting parties, thereby satisfying each of the Chan criteria.

Plaintiff raises arguments as to Plaintiff's lack of consent to arbitration. Such arguments ignore United States Supreme Court authority allowing for enforcement of an arbitration provision in a collective bargaining agreement. 'Nothing in the law suggests a distinction between the status of arbitration agreements signed by an individual employee and those agreed to by a union representative. 14 Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 258. See also, Wright v. Universal Maritime Service Corp.

(1998) 525 U.S. 70, 77. Under this authority, the MOU and the 2019 Sound Agreement, collectively bargained by Plaintiff's union (IBEW Local 569), is enforceable against Plaintiff. As Oswald explains, Oswald is not a signatory to the Agreement or MOU. Instead, a union negotiated and signed them, on Oswald's behalf. As a union member, Oswald enjoys the benefits of the union's bargaining power but he is also subject to the burdens imposed by the CBA, which limit his remedy for Labor Code violations to an arbitral forum. (See Florio v. City of Ontario (2005) 130 Cal.App.4th 1462, 1466, 30 Cal.Rptr.3d 841 [' 'a member of a bargaining unit is bound by the terms of a valid collective bargaining agreement' '].) Oswald, 82 Cal.App.5th at 944.

Addressing the authority Plaintiff relies on, the court finds that the waiver of a judicial forum for all Calendar No.: Event ID:  TENTATIVE RULINGS

3100478  9 CASE NUMBER: CASE TITLE:  MARTINEZ VS DAVIES ELECTRIC CO INC [IMAGED]  37-2023-00044171-CU-WT-CTL disputes between Plaintiff and Davies set forth in the MOU is 'clear and unmistakable.' Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434. Plaintiff's reliance on the factual analysis in Gamboa and the other authorities Plaintiff relies on is unpersuasive as the facts in Gamboa do not involve a collective bargaining agreement. Plaintiff's argument that there is no evidence that IBEW Local 569 could consent to arbitration on behalf of Plaintiff ignores the above authority. As to Plaintiff's other argument on this issue, Plaintiff fails to provide any authority requiring that union members separately sign arbitration provisions in collectively bargained agreements between a union and an employer.

Plaintiff also argues that neither the MOU nor the Sound Agreement cover Plaintiff's retaliation and wrongful termination claims. Such arguments is contrary to the express language of the MOU: 'The Union and the Employer intend that the Grievances-Disputes provisions in these Agreements shall be the exclusive method of resolving all disputes between the Employer and the Union and the employees covered by these Agreements.' The term 'all disputes' necessarily includes Plaintiff's retaliation and wrongful termination claims. While the MOU also includes a subsequent provision: 'Such disputes shall include statutory claims relating to the payment of wages . . . . ' this language does not limit the term 'all disputes.' Also, the MOU specifically includes claims under the California Labor Code. The retaliation cause of action is brought pursuant to Labor Code § 1102.5 and the wrongful termination cause of action relies on Labor Code § 6310 and § 6400. As such, these claims are subject to the MOU.

Plaintiff raises arguments that the Council on Industrial Relations for the Electrical Contracting Industry (CIR) is not the correct forum for wage and hour claims and the CIR process does not offer 'traditional dispute resolution.' To the extent Plaintiff challenges the ability of IBEW Local 529 to negotiate terms, Plaintiff fails to provide authority holding that such circumstances preclude the enforceability of the MOU and 2019 Sound Agreement against Plaintiff. The same analysis applies as to Plaintiff's argument that IBEW Local 529 acted in bad faith and failed to represent Plaintiff. Under 14 Penn Plaza Plaintiff may have a remedy against the IBEW Local 529. However, such circumstances do not preclude enforcement of the collectively bargained arbitration provision.

Based on the forgoing, the court finds Davies meets its burden of establishing that an agreement to arbitrate exists.

Plaintiff also raises the argument that the arbitration provision is unconscionable and unenforceable as a result. Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223 explains, [u]nconscionability consists of both procedural and substantive elements. The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. (See Armendariz, at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669; Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071, 130 Cal.Rptr.2d 892, 63 P.3d 979 [procedural unconscionability 'generally takes the form of a contract of adhesion'].) Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided. (Armendariz, at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1159, 128 Cal.Rptr.3d 330.) A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be 'so one-sided as to 'shock the conscience.' ' (24 Hour Fitness, Inc. v. Superior Court, supra, 66 Cal.App.4th at p. 1213, 78 Cal.Rptr.2d 533.) The party resisting arbitration bears the burden of proving unconscionability. (Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972, 64 Cal.Rptr.2d 843, 938 P.2d 903; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group, supra, 197 Cal.App.4th at p. 1158, 128 Cal.Rptr.3d 330.) Both procedural unconscionability and substantive unconscionability must be shown, but 'they need not be present in the same degree' and are evaluated on ' 'a sliding scale.' ' (Armendariz, supra, 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) '[T]he 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.' (Ibid.) Calendar No.: Event ID:  TENTATIVE RULINGS

3100478  9 CASE NUMBER: CASE TITLE:  MARTINEZ VS DAVIES ELECTRIC CO INC [IMAGED]  37-2023-00044171-CU-WT-CTL As indicated, procedural unconscionability requires oppression or surprise. ' 'Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.' ' Morris v. Redwood Empire Bancorp (2005).

Pinnacle, 55 Cal.4th at 246-247.

Plaintiff claims procedural unconscionability based on evidence that Plaintiff never signed an arbitration agreement, has never seen an arbitration provision in any collective bargaining agreement, has never seen the MOU and has never had anything regarding arbitration explained to him by Davies or IBEW Local 569. The court finds such circumstances analogous to the arbitration provision contained in the CC&Rs at issue in Pinnacle. The CC&Rs were drafted and recorded before the sale of any of the units in the development and without any input from the homeowners' association. The Pinnacle court, relying on the 'legislative policy choices' of the Davis-Stirling Act, found such circumstances did not render the arbitration provision procedurally unconscionable and that the arbitration was binding on the homeowner/purchasers, even though they never signed the arbitration provision. Here, based on the policies underlying collective bargaining agreements, the arbitration provision in the MOU is binding on Plaintiff, even though Plaintiff did not sign the arbitration provision. As in Pinnacle, the court finds such circumstances do not support a finding of procedural unconscionability.

As explained in Pinnacle and the authorities set forth above, 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, Bigler v. Harker School (2013) 213 Cal.App.4th 727, 736.

The final argument Plaintiff raises is that the Federal Arbitration Act (FAA) does not apply. The court finds the evidence Davies submits sufficient to establish that the MOU and the 2019 Sound Agreement affect interstate commerce such that the FAA applies. See, Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52.

In the alternative, Plaintiff seeks a continuance to conduct discovery to determine IBEW Local 569's 'role' in Plaintiff's termination and 'whether the CIR process is even applicable to this case.' The court finds Plaintiff fails to establish how any discovery would change the analysis above. Therefore, Plaintiff's request for a continuance is DENIED.

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

The court sets a Status Conference for October 18, 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.

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