Judge Christopher K. Lui, Case 21STCV43502 2022-09-29 Tentative Ruling

Plaintiff alleges that he was harassed and discriminated against on the basis of his disability and age, and was ultimately terminated and kicked out of his employer-provided apartment unit..

Defendants Winn Management Group, LLC and Pasadena Villages, L.P. moves to compel arbitration and stay this action.

Defendants Winn Management Group, LLC and Pasadena Villages, L.P.’s motion to compel arbitration is GRANTED.

The litigation is ordered stayed pending arbitration. (Code Civ. Proc., § 1281.4.)

For motions that are not for summary judgment or summary adjudication, CRC Rule 3.1113 sets forth a 15-page limit on points and authorities in support of or in opposition to motions, and a 10-page limit on reply memoranda, unless the party applies for an application to file a longer memorandum, which did not occur here. (Cal. Rules of Court, Rule 3.1113(d) & (e)). A memorandum filed in excess of the page limits “must be filed and considered in the same manner as a late-filed paper.” (Cal. Rules of Court, Rule 3.1113(g).) The Court has discretion to disregard a late-filed brief. (Cal. Rules of Court, Rule 3.1300(d).) Accordingly, while the Court could completely disregard the entirety of the opposition, instead, the Court will only read the first 15 pages of the Opposition. Nonetheless, the Court will consider all admissible evidence in support of the opposition (i.e., that evidence as to which evidentiary objections have been overruled).

As such, the Court will only consider Plaintiff’s arguments set forth at Pages 7 – 21 of the Amended Opposition. The Court will not consider any arguments presented at Pages 22 – 25 of the Amended Opposition.

¿ Paragraph 2, Page 2, Line 7 – Paragraph 16, Page 6, Line 8: OVERRULED. Plaintiff does not specify which portions of these fifteen paragraphs is objectionable.

¿ Paragraph 3, Page 2, Lines 13-20: OVERRULED. Sufficient foundation; not hearsay; permissible lay opinion based on personal knowledge; objection does not even correspond to the substance of the paragraph cites.

¿ Paragraph 4, Page 2, Lines 21-26: OVERRULED. Sufficient foundation; not hearsay; permissible lay opinion based on personal knowledge.

¿ Paragraph 5, Page 2, Line 27-Page 3, Line 7: OVERRULED. Sufficient foundation; business records exception to hearsay rule; goes to weight.

¿ Paragraph 7, Page 3, Lines 14-24: OVERRULED. Sufficient foundation; business records exception to hearsay rule; goes to weight.

¿ Paragraph 8, Page 3, Line 25-Page 4, Line 4: OVERRULED. Sufficient foundation; business records exception to hearsay rule; goes to weight.

¿ Paragraph 9, Page 4, Lines 5-9: OVERRULED. Sufficient foundation; business records exception to hearsay rule; goes to weight.

¿ Paragraph 10, Page 4, Lines 10-14: OVERRULED. Sufficient foundation; business records exception to hearsay rule; goes to weight.

¿ Paragraph 12, Page 4, Lines 20-24: OVERRULED. Sufficient foundation; business records exception to hearsay rule; permissible lay opinion; goes to weight.

¿ Paragraph 13, Page 4, Line 25-Page 5, Line 2: OVERRULED. Sufficient foundation; business records exception to hearsay rule; permissible lay opinion; goes to weight.

¿ Paragraph 14, Page 5, Lines 3-12: OVERRULED. Sufficient foundation; business records exception to hearsay rule; permissible lay opinion; goes to weight.

¿ Paragraph 15, Page 5, Lines 13-20: OVERRULED. Sufficient foundation; business records exception to hearsay rule; permissible lay opinion; goes to weight.

The Court first addresses Plaintiff’s argument that Defendants have waived the right to compel arbitration.

Merely participating in discovery, without a showing of prejudice, does not constitute a waiver “if there has been no judicial litigation of the merits of arbitrable issues. (Quach v. Cal. Commerce Club, Inc. (2022) 78 Cal.App.5th 470, 478.) Delay in asserting the right to arbitrate is not unreasonable merely because the right could have been asserted it at an earlier time. (Id. at 484.) A delay is unreasonable if it causes a party to expend resources it otherwise would have avoided in arbitration, or by allowing the party asserting arbitration to take advantage of judicial processes not available in arbitration. (Id.)

Here, Defendants filed their Answers on March 11, 2022. There was no intervening law and motion before Defendants filed the instant motion to compel arbitration on September 6, 2022. Plaintiff has not demonstrated prejudice or unreasonable delay. (Quash, supra, 78 Cal.App.5^th at 484, 478.) Plaintiff’s waiver argument is without merit. ]

No. 2: OVERRULED. Sufficient foundation; relevant; goes to weight; hearsay exception—authorized admission. (Evid. Code § 1222.)

No. 3: OVERRULED. Sufficient foundation; relevant; goes to weight; hearsay exception—authorized admission. (Evid. Code § 1222.)

Defendants Winn Management Group, LLC and Pasadena Villages, L.P. moves to compel arbitration and stay this action.

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4^th 1094.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Plaintiff asserts the following causes of action: (1) Discrimination Disparate Treatment – Discrimination on the Basis of Medical Condition and/or Physical Disability or Perceived Medical Condition and Physical Disability In Violation of Gov. Code § 12940(a); (2) Disability Discrimination – Failure To Provide Reasonable Accommodation In Violation of Gov. Code § 12940(m); (3) Disability Discrimination – Failure To Engage In The Interactive Process In Violation of Gov. Code § 12940(n); (4) Wrongful Discharge In Violation of Public Policy Against Discrimination On The Basis of Medical Condition or Physical Disability; (5) Disparate Treatment – Discrimination On The Basis of Age In Violation of Gov. Code § 12940(a); (6) Wrongful Discharge In Violation of Public Policy Against Age Discrimination; (7) Failure to Prevent Harassment, Retaliation and Discrimination; (8) Retaliation In Violation of Gov. Code § 12940(h); (9) Hostile Work Environment Harassment—Conduct Directed at Plaintiff By Entity Defendant In Violation of Gov. Code § 12940(j); (10) Negligent Infliction of Emotional Distress; (11) Intentional Infliction of Emotional Distress.

In his Declaration in support of the Opposition, Plaintiff indicates as follows:

1. PLAINTIFF DISPUTES SIGNING ANY AGREEMENT TO ARBITRATE HIS CLAIMS: I am certain that I never saw, reviewed, received, submitted, agreed, consented, or signed electronically, manually or otherwise the defendant’s arbitration agreement, nor any arbitration rules or procedures, nor any employee handbook containing any arbitration provision. I am certain that I never signed off on any arbitration agreement, electronically or otherwise. At the time I initially accepted employment with the defendants, had I been told that I would be required to enter into a contract waiving all my legal rights and waiving my access to the courts as a condition of my employment with defendants, I would not have accepted the job[1].

reviewed the document titled “Employee Acknowledgement and Agreement” which is Exhibit B” to the declaration of Jennifer Diaz. I have no recall of having ever seen or signed this document electronically, manually or otherwise. I see that the first sentence in this three page document references the defendant’s California Employee Handbook, but I never received any such handbook electronically or otherwise. I do not recall getting a link to an employee handbook from the defendants when I was hired, as part of the “on boarding process” or at any other time. On these bases, I dispute that this exhibit bears my electronic signature.

5. NO MANUALS OR HANDBOOKS THAT MENTION ARBITRATION: I was never provided with a document called “California English Arbitration Agreement” nor did I electronically sign any document with this title. I note that Exhibit “B” to Ms. Diaz’ declaration is a document titled “Employee Acknowledgement and Agreement,” which I do not recall ever having seen, review, accepted, approved, or signed.

If an employee denies signing, or even indicates a failure to recall electronically signing the agreement, the moving party has the burden of proving by a preponderance of the evidence that the electronic signature is authentic. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846.)

An employer may do this by explaining how the employee’s name could only have been placed on the arbitration agreement by a person using the employee’s unique login ID and password, that the date and time of the signature is accurately reflected next to the electronic signature, that all employees were required to use their unique login ID and password when they logged into the HR system and signed electronic forms and agreements, and thus, the electronic signature on the arbitration agreement was apparently made by the employee. (Ruiz, supra, 232 Cal.App.4th at 844.)

Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is. The statute states: “(a) An electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” (Civ. Code, § 1633.9, subd. (a), italics added.)

Here, the Court finds that the Declaration of Jennifer Diaz sufficient explains how the arbitration agreement was electronically signed by Plaintiff, in accordance with the evidentiary standard set forth in Ruiz, supra. (See Declaration of Jennifer Diaz, ¶¶ 1 – 15.) In the interest of brevity, the Court does not repeat Diaz’s statements, but calls attention in particular to ¶¶ 12 – 15 which addresses how Plaintiff’s electronic signature would come to appear on the arbitration agreement, which is attached as Exhibit B to the Diaz Declaration.

The Court finds sufficient evidence that Plaintiff electronically signed the arbitration agreement as part of the onboarding process, and gives more weight to Defendants’ evidence than Plaintiff’s. “[I]n ruling on the petition when factual matters are in dispute, the court must weigh credibility and the strength of competing evidence. [Citation.]” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 971.)

The Arbitration Agreement states above the electronic signature line: “MY SIGNATURE BELOW ATTESTS TO THE FACT THAT I HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND TO ALL OF THE ABOVE TERMS. [¶] DO NOT SIGN UNTIL THE EMPLOYEE HAS READ THE ABOVE ACKNOWLEDGMENT AND AGREEMENT.”

2. I and the Company agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my employment, except to the extent I opt-out of certain portions of this arbitration agreement as set forth below. I and the Company each specifically waive and relinquish our respective rights to bring a claim against the other in a court of law and to have a trial by jury. Both I and the Company agree that any claim, dispute, and/or controversy that I may have against the Company (or its owners, directors, officers, managers, employees, or agents), or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (“FAA”), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery). The FAA applies to this Agreement because the Company’s business involves interstate commerce. Included within the scope of this Agreement are all disputes, whether based on tort, negligence, contract, statute (including, but not limited to, any claims of discrimination, harassment and/or retaliation, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation), equitable law, or otherwise. The only exceptions to binding arbitration shall be for claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under the California Workers’ Compensation Act, Employment Development Department claims, or other claims that are not subject to arbitration under current law. I and the Company acknowledge that by signing or refusing to sign this Agreement, I make no representation or demonstration of support or rejection of concerted activity. However, nothing herein shall prevent me from filing and pursuing proceedings before the California Department of Fair Employment and Housing, or the United States Equal Employment Opportunity Commission (although if I choose to pursue a claim following the exhaustion of such administrative remedies, that claim would be subject to the provisions of this Agreement).

The claims Plaintiff asserts in the Complaint against Defendants come within the scope of the Arbitration Agreement.

Winn Management Group LLC is a signatory to the arbitration agreement, but moving party Pasadena Villages, L.P. is not. Pasadena Villages, L.P. indicates that it was erroneously sued as Kings Village Apartments. As Kings Village Apartments, Defendant Pasadena Villages, L.P. was sued as Plaintiff’s employer and was allegedly “a corporate affiliate, parent or subsidiary of the other corporate, entity or business defendants at all times herein.” (Complaint, 5)

A non-signatory defendant alleged to be a joint employer may enforce an arbitration clause where the claims are intimately founded in and intertwined with the employment relationship with the signatory employer defendant. (Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 785-88.) Here, the Complaint treats the acts of all employer Defendants as the same. Thus, the claims against Pasadena Villages are “intimately founded in and intertwined with the employment relationship with” signatory Defendant Winn Management Group LLC. Thus, Defendant Pasadena Villages, L.P. may enforce the arbitration agreement against Plaintiff.

Where unwaivable statutory rights are involved, such as the FEHA claims asserted herein, there are five minimum requirements set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4^th 83[2], which much be satisfied:

In order to ensure that mandatory arbitration agreements are not used to curtail an employee's public rights, the California Supreme Court in Armendariz set forth five minimum requirements (the Armendariz requirements). Arbitration agreements in the employer-employee context must provide for: (1) neutral arbitrators, (2) more than minimal discovery, (3) a written award, (4) all types of relief that would otherwise be available in court, and (5) no additional costs for the employee beyond what the employee [*713] would incur if he or she were bringing the claim in court. ( Armendariz, supra, 24 Cal.4th at pp. 102, 110–111, citing Cole v. Burns Intern. Security Services (D.C. Cir. 1997) 323 U.S. App. D.C. 133 [105 F.3d 1465, 1482]; see also Little, supra, 29 Cal.4th at p. 1081.)

The Armendariz requirements are an application of general state law contract principles regarding the unwaivability of public rights in the arbitration context. ( Little, supra, 29 Cal.4th at p. 1079.) Therefore, to be enforceable, an agreement to arbitrate public rights must satisfy the Armendariz requirements. Additionally, such an agreement must be conscionable. “If agreements to arbitrate claims arising from ordinary private rights must meet conscionability standards, then certainly those that affect revered public values warrant the same consideration.” (Abramson, supra, 115 Cal.App.4th at p. 655.)

4. In addition to any other requirements imposed by law, the arbitrator selected to hear claims under this Agreement shall be a retired California Superior Court Judge, or an otherwise qualified individual to whom the parties mutually agree, and shall be subject to disqualification on the same grounds as would apply to a judge of such court.

“Adequate discovery is indispensable for the vindication of statutory claims. (Citation omitted.) “ ‘[A]dequate’ discovery does not mean unfettered discovery … .” (Citation omitted.) And parties may “agree to something less than the full panoply of discovery provided in Code of Civil Procedure section 1283.05.” (Citation omitted.) However, arbitration agreements must “ensure minimum standards of fairness” so employees can vindicate their public rights. (Citation omitted).”

At ¶ 2, the Agreement incorporates CCP § 1283.05 and all of the California Arbitration Act’s mandatory and permissive rights to discovery.

Awards shall include the arbitrator's written reasoned opinion. Resolution of all disputes shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of "just cause") other than such controlling law.

The Arbitration Agreement does not limit the types of relief available, but only provides that “[r]esolution of all disputes shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of ‘just cause’) other than such controlling law.” (Arbitration Agreement, ¶ 4.) Moreover, the availability of all types of relief available in court is implicitly provided for by law. (Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 176.)

Armendariz held that to the extent that the arbitration agreement was silent on these issues, these requirements must be implied as a matter of law. (Armendariz, supra, 24 Cal.4th at pp. 106, 107, 113 [interpreted the agreement to provide for adequate discovery, a written arbitration award, and the employer's payment of arbitration costs].)

(5) Does not require employee to pay unreasonable costs or any arbitrator’s fees or expenses as a condition to access to arbitration:

The Arbitration Agreement does not address who will bear the costs or fees. As such, the law implies that Defendant employer will bear these costs. (Sanchez, supra, 172 Cal.App.4th at 176.)

The Court finds that an agreement to arbitrate exists as to all causes of action asserted by Plaintiff in the Complaint, and that both moving Defendants may enforce the Agreement against Plaintiff. The burden shifts to Plaintiff to demonstrate why the Arbitration Agreement should not be enforced.

In the first 15 pages of the Amended Opposition, Plaintiff presents the following arguments:

Plaintiff argues that Defendants waived the right to compel arbitration. This argument is disposed of above.

Plaintiff argues that Defendants have not met their burden of proof of proving the existence of an arbitration agreement by a preponderance of the evidence. This argument is disposed of above.

The Court has already resolved Plaintiffs claim that he did not sign the Arbitration Agreement.

The doctrine of unconscionability was summarized in Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 645-48 as follows:

“ ‘To briefly recapitulate the principles of unconscionability, the doctrine 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.” [Citation.] The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “ ‘which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.’ ” … [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’ [Citation.]” (Citation omitted.)

“Under this approach, both the procedural and substantive elements must be met before a contract or term will be deemed unconscionable. Both, however, need not be present to the same degree. A sliding scale is applied so that ‘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.’ (Citations omitted.)

As to procedural and substantive unconscionability, Plaintiff recites the facts and holdings of case law, but never gets to discussing the facts or evidence pertaining to the subject arbitration agreement within the first 15 pages of the Amended Opposition.

The Court has read the Declaration of Plaintiff wherein he indicates that he was emailed about 20 to 30 pages of “onboarding documents” from Diaz, and Plaintiff was told to sign and send them back as soon as possible. (Mejia Decl., ¶ 3.) Plaintiff states that Diaz did not tell Plaintiff that there was an arbitration agreement, which would result in a waiver of his right to access to the courts or to a jury trial of disputes with the company. (Id.) Plaintiff indicates that he was hurried to sign the documents in order to report for work the next day. (Id.) Plaintiff indicates that he did not have much time to carefully review the 20 to 30 pages of “onboarding documents.” (Id.) (See also Mejia Decl., ¶ 4.) Plaintiff indicates that no one explained to him what “arbitration” meant, nor the consequences of arbitration. (Id. at ¶¶ 6-9.)

However, at most, the circumstances described by Plaintiff present a moderate degree of unconscionability. (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 249-50.)

Moreover, “[a]n arbitration clause within a contract may be binding on a party even if the party never actually read the clause. (Citation omitted.)” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [bold emphasis added].)

Further, the failure to read a document before signing it does not excuse enforcement of a contract:

"It is well established, in the absence of fraud, overreaching or excusable neglect, that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it." (Hulsey v. Elsinore Parachute Center, supra, 168 Cal.App.3d 333, 339; see also Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 [131 Cal.Rptr. 882, 552 P.2d 1178]; Izzi v. Mesquite Country Club (1986) 186 Cal.App.3d 1309, 1318-1319 [231 Cal.Rptr. 315].)

"Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have it read or explained to him." (1 Witkin, Summary of Cal. Law (9th ed. 1987) § 120, p. 145.) This is not only the California but the general rule. (3 Corbin, Contracts (1960) § 607, pp. 668-669, fn. omitted ["One who signs an instrument when for some reason, such as illiteracy or blindness, he can not read it, will be bound by its terms in case the other party acts in good faith without trick or misrepresentation. The signer should have had the instrument read to him."].)

Thus, Plaintiff has only demonstrated, at most, moderate procedural unconscionability. However, Plaintiff did not address substantive unconscionability within the first 15 pages of the Amended Opposition. Nor does his Declaration demonstrate substantive unconscionability.

The request for a 402 evidentiary hearing is not made in the first 15 pages and, even if it were, such request would be denied.

As such, Plaintiff has not met his burden of demonstrating that the Arbitration Agreement should not be enforced.

The litigation is ordered stayed pending arbitration. (Civ. Proc. Code., § 1281.4.)

[1] The Court notes that this is an admission that Plaintiff had the choice not to accept the job, which weighs against an argument that he was coerced to sign the arbitration agreement because his economic conditions left him no choice but to accept the arbitration agreement.

[2] Armendariz is still good law. “Since Concepcion was decided, the California Supreme Court has reaffirmed the validity of Armendariz multiple times.” (Ramos v. Superior Court (2018) 28 Cal.App.5th 1042, 1055.)