Judge Curtis A. Kin, Case 21STCV42783 2022-08-09 Tentative Ruling

Judge: Curtis A. Kin, Case: 21STCV42783, Date: 2022-08-09 Tentative Ruling

Case Number: 21STCV42783 Hearing Date: August 9, 2022 Dept: 72

MOTION TO COMPEL ARBITRATION

Date: 8/9/12 (8:30 AM)

Case: Cesar B. Morales v. The Brink’s Company et al. (21STCV42783)

TENTATIVE RULING:

Defendants The Brink’s Company, Brink’s Incorporated, and Julian Moreira’s Motion to Compel Arbitration is GRANTED.

All evidentiary objections are OVERRULED.

In this motion, defendants The Brink’s Company, Brink’s Incorporated, and Julian Moreira seek to compel arbitration of plaintiff Cesar B. Morales’ claims against them.

The Court finds that plaintiff agreed to arbitration of the causes of action asserted in this action by signing the Mutual Arbitration Agreement (“Agreement”). (Mersiovsky Decl. ¶ 3(b) & Ex. 2 at 2.)

The Agreement is properly authenticated. Defendants submit the declaration of Sharon Mersiovsky, a Senior Paralegal at Brink’s, Incorporated (“Brink’s”). (Mersiovsky Decl. ¶ 3.) Mersiovsky is charged with maintaining personnel information of Brink’s employees and accordingly has access to personnel information. (Mersiovsky Decl. ¶ 3.) The Agreement at issue is contained in plaintiff’s personnel file. (Mersiovsky Decl. ¶ 3(b).) Further, Julian Moreira, plaintiff’s supervisor (Compl. ¶ 10), states that he presented plaintiff with the Agreement during a meeting and that plaintiff signed the Agreement. (Moreira Decl. ¶ 4.)

Plaintiff argues that defendants did not authenticate the signature of the person that signed the Agreement on behalf of Brink’s. Nevertheless, “[j]ust as with any written agreement signed by one party, an arbitration agreement can be specifically enforced against the signing party regardless of whether the party seeking enforcement has also signed, provided that the party seeking enforcement has performed or offered to do so.” (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 177; see also Civ. Code § 3388 [“A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance”].) Here, as the moving parties, defendants have offered to resolve plaintiff’s claims in arbitration. Plaintiff does not deny signing the Agreement. (Garay Decl. ¶¶ 8-11 & Ex. G [English translation of plaintiff’s declaration] at ¶ 10.)

Plaintiff argues that the agreement to arbitrate is unenforceable because it is unconscionable. (See Civ. Code § 1670.5(a).) An arbitration agreement must be both procedurally and substantively unconscionable to be unenforceable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1159 [unnecessary to decide whether insurance policy was adhesion contract and procedurally unconscionable because it was not substantively unconscionable].)

With respect to procedural unconscionability, even if the Agreement were adhesive, this alone does not render the agreement unenforceable. (Serpa v. California Sur. Investigations, Inc. (2013) 215 Cal.App.4th 695, 704 [“[The] adhesive aspect of an agreement is not dispositive. [Citation.] When … there is no other indication of oppression or surprise, ‘the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.”]; see also Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817-18.)

Further, absent any evidence of any deception by defendants in getting plaintiff to sign the agreement, plaintiff is bound by the terms of the agreement. (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163, quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987), § 120 at 145 [“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”].) Here, plaintiff does not declare that he was prevented from reading the Agreement or asking questions about the contents of the Agreement.

Moreover, the failure to attach applicable rules is not dispositive, because plaintiff’s challenge to arbitration does not stem from some element of the rules of which she had been unaware. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246.)

With respect to substantive unconscionability, plaintiff argues that the Agreement provides defendants the ability to unilaterally amend the Agreement. (Mersiovsky Decl. ¶ 3(b) & Ex. 2 at 5 [“Brink's reserves the right to discontinue, amend or revise this Policy on 30 days’ notice to you by notifying you of the proposed amendment or discontinuation”].) However, the employer’s retention of the right to modify the Agreement does not render the Agreement illusory or lacking in mutuality. This is because the implied covenant of good faith and fair dealing prevents Brink’s from modifying the Agreement in a manner that undermines plaintiff’s rights. (Serafin, 235 Cal.App.4th at 176.)

Plaintiff also argues that the Agreement provides for the confidentiality of the proceedings and any award. (Mersiovsky Decl. ¶ 3(b) & Ex. 2 at 4 [The Arbitrator . . . shall maintain the confidentiality of the proceedings and of any award, except as otherwise required by law or agreed by the parties”].) However, this does not render the Agreement substantively unconscionable. (See Sanchez v. Carmax Auto Superstores California, LLC (2014) 224 Cal.App.4th 398, 408 [finding similarly provision requiring “the arbitration (including the hearing and record of the proceeding) be confidential and not open to the public unless the parties agree otherwise, or as appropriate in any subsequent proceeding between the parties, or as otherwise may be appropriate in response to governmental or legal process” to not be substantively unconscionable].)

Plaintiff also argues that Brink’s is a “repeat player” with AAA. However, this alone does not render the Agreement unconscionable. (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 178 [“While our Supreme Court has taken notice of the ‘repeat player effect,’ the court has never declared this factor renders the arbitration agreement unconscionable per se . . . We too are not prepared to say without more evidence the ‘repeat player effect’ is enough to render an arbitration agreement unconscionable”].] Here, if the parties cannot agree on an arbitrator, the AAA rules provide for plaintiff to strike from and rank a list of potential arbitrators. (Employment Arbitration Rules and Mediation Procedures, Rule 12(c)(ii), found at https://www.adr.org/sites/default/files/Employment-Rules-Web.pdf.) Accordingly, plaintiff can provide his input on potential arbitrators who he deems to be biased based on any perceived overwhelming financial interest.

For the foregoing reasons, the motion to compel arbitration of plaintiff’s claims against defendants is GRANTED. Pursuant to CCP § 1281.4, this action is STAYED pending completion of arbitration between the parties.