Judge: Cynthia A Freeland, Case: 37-2022-00051198-CU-OE-NC, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 04, 2024

04/05/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2022-00051198-CU-OE-NC VENEGAS VS. INNOVATIVE FACILITY SERVICES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 11/29/2023

Defendant Innovative Facility Services, LLC ('Defendant')'s motion to compel arbitration is granted.

The action involves various alleged violations of the California Labor Code. On May 1, 2022, Defendant became a signatory to a collective bargaining agreement ('CBA') between the Building Owners and Managers Association and the Service Employees International Union, Service Workers West (the 'Union'), effective May 1, 2020. See Patten Decl., ¶¶ 4-5, Ex. A. Nonexempt employees of Defendant are members of the Union and thus the CBA governs the terms and conditions of their employment.

Ibid., ¶ 6. At all relevant times, Plaintiff Maria Gutierrez Venegas ('Plaintiff') was a member of the Union.

See Ruiz Decl., ¶ 6. Appendix G-2 to the CBA, entitled 'Wage and Hour Protocol', contains an arbitration provision (the 'Arbitration Provision') at § 1 that provides: The Parties to this Agreement believe that it is in the best interests of all involved – employees/members, employer, the Union, and the public interest – to promptly, fairly and efficiently resolve through mediation and arbitration all claims alleging violations of wage and hour and/or meal and rest period laws, including but not limited to claims based on the federal Fair Labor Standards Act, the California Labor Code, or any similar local law, ordinance or policy (collectively 'Covered Claims'). As to any Covered Claim, each party waives to the maximum extent permitted by law the right to jury trial and to bench trial, and the right to bring, maintain, or participate in any class, collective, or representative proceeding, including but not limited to under the PAGA or any other applicable similar laws, whether in arbitration or otherwise, to the full extent permitted by applicable law.

The Union will pursue a policy of evaluating such Covered Claims and bringing such claims to arbitration where appropriate. To this end, the parties establish the following system of mediation and arbitration to be the sole and exclusive method of resolving all such Covered Claims, whenever they arise. The Union and the Employer want those covered by this Agreement – and any attorneys representing employees – to be aware of this protocol, which makes mediation and arbitration the sole and exclusive method of resolving all individual or group Covered Claim applicable to bargaining unit employees, even where the Union has declined to bring such Covered Claims to arbitration.

For purposes of this Protocol, the term 'Parties' refers to the person asserting the claim and the person responding to or defending the claim. A 'Party' may be the Employer, the Union, or the individual employee or group/class of employees in cases where the Union has declined to pursue mediation or arbitration.

See CBA, p. 132; Arbitration Provision, § 1.

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3057719 CASE NUMBER: CASE TITLE:  VENEGAS VS. INNOVATIVE FACILITY SERVICES [IMAGED]  37-2022-00051198-CU-OE-NC The Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) (the 'FAA') governs the enforcement of the Protocol as it pertains to a party's election to arbitrate his/her/its claims. See Arbitration Provision, § 3(f). In relevant part, the FAA provides that: A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

The court may resolve a motion to compel arbitration in summary proceedings. See Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal. App. 5th 1090, 1098. The court applies state contract law in determining Defendant's right to enforce the Arbitration Provision. See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal. 4th 223, 236 ('In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.'); Giuliano v. Inland Empire Personnel, Inc.

(2007) 149 Cal. App. 4th 1276, 1285 (generally applicable contract defenses may invalidate arbitration agreements provided they do not contravene § 2 of the FAA). A threshold determination in that regard is the existence of a valid arbitration agreement. See Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal. App. 4th 165, 172. Defendant bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. Plaintiff then bears the burden of proving by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Provision. See Lane v. Francis Capital Management LLC (2014) 224 Cal. App. 4th 676, 683.

The court finds that Defendant has satisfied its initial burden of proving the existence of a valid arbitration agreement. The uncontroverted evidence demonstrates that Plaintiff was a member of the Union and thus the terms and conditions of her employment were governed by the CBA. The CBA contains a copy of the Arbitration Provision agreed upon between Defendant and the Union. Nothing further is required to prove the Arbitration Provision's existence. See Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219 ('For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication . . . the court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity.'); Cal. R. Ct.

3.1330.

The burden thus shifts to Plaintiff to prove by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Provision. The court finds that Plaintiff has not satisfied her burden. The parties do not dispute that all of Plaintiff's claims are statutory in nature (Plaintiff dismissed her PAGA claim on June 22, 2023 (see ROA No. 10)). Plaintiff, however, contends that she cannot be compelled to arbitrate her individual statutory claims under the CBA because Defendant has not demonstrated a clear and unmistakable waiver of Plaintiff's right to adjudicate her claims in court. The court respectfully disagrees.

'Although ordinarily a presumption of arbitrability applies to contractual disputes arising out of a collective bargaining agreement, the presumption is not applicable to statutory violations.' Vasquez v. Sup. Ct. (2000) 80 Cal. App. 4th 430, 434 (citing Wright v. Universal Maritime Service Corp., 525 U.S.

70, 78-79 (1998)). A requirement to arbitrate statutory claims under a collective bargaining agreement must be clear and unmistakable. See Vasquez, 80 Cal. App. 4th at 434 (citing Wright, 525 U.S. at 80).

The test for determining whether a party to a collective bargaining agreement has waived his or her right to arbitrate statutory claims is whether the collective bargaining agreement makes compliance with the statute a contractual obligation subject to arbitration. See Vasquez, 80 Cal. App. 4th at 434 (citing Wright, 525 U.S. at 80-81; Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 879-880 (4th Cir. 1996)). Toward that end, the Second District Court of Appeal has explained: Calendar No.: Event ID:  TENTATIVE RULINGS

3057719 CASE NUMBER: CASE TITLE:  VENEGAS VS. INNOVATIVE FACILITY SERVICES [IMAGED]  37-2022-00051198-CU-OE-NC 'Broad, general language is not sufficient to meet the level of clarity required to effect a waiver in a [collective bargaining agreement]. In the collective bargaining context, the parties 'must be particularly clear' about their intent to arbitrate statutory discrimination claims.' (Carson v. Giant Food, Inc. (4th Cir.1999) 175 F.3d 325, 331.) A waiver in a collective bargaining agreement is sufficiently clear if it is found in an explicit arbitration clause. 'Under this approach, the [collective bargaining agreement] must contain a clear and unmistakable provision under which the employees agree to submit to arbitration all [state and federal statutory] causes of action arising out of their employment.' (Carson, at p. 331.) A waiver in a collective bargaining agreement may also be sufficiently clear if broad, nonspecific language in the arbitration clause is coupled with 'an 'explicit incorporation of statutory antidiscrimination requirements' elsewhere in the contract. [Citation.] If another provision, like a nondiscrimination clause, makes it unmistakably clear that the discrimination statutes at issue are part of the agreement, employees will be bound to arbitrate their [state and federal statutory] claims.' (Id. at p. 332.) A simple agreement not to engage in acts violative of a particular statute will not suffice; the agreement must establish the intent of the parties to incorporate 'in their entirety' the discrimination statutes. (Brown v. ABF Freight Systems, Inc. (4th Cir.1999) 183 F.3d at p. 322.) Compliance with a particular statute must be an express contractual commitment in the collective bargaining agreement. (Bratten v. SSI Services, Inc. (6th Cir.1999) 185 F.3d 625, 631; Quint v. A.E. Staley Manufacturing Co. (1st Cir.1999) 172 F.3d 1, 9.) See Vasquez, 80 Cal. App. 4th at 435-436. See also Mendez v. Mid-Wilshire Health Care Center (2013) Cal. App. 4th 543 (to waive employees' statutory rights to a judicial forum for FEHA claims, at a minimum, a collective bargaining agreement must specify the statutes for which claims of violation will be subject to arbitration); Safrit v. Cone Mills Corp., 248 F.3d 306, 307-308 (4th Cir. 2001) (section in collective bargaining agreement statement that the parties agree ' 'that they will abide by all the requirements of Title VII of the Civil Rights Act of 1964' and that ' '[u]nresolved grievances arising under this Section are the proper subjects for arbitration' ' was a general arbitration clause coupled with an ' 'unmistakably clear' ' provision that discrimination statutes are part of the agreement.).

In this case, the court finds that the language contained in § 1 of the Arbitration Provision clearly and unmistakably subjects all of Plaintiff's claims to arbitration. The parties do not dispute that Plaintiff's Labor Code claims meet the CBA's definition of 'Covered Claims' for purposes of arbitration, and the court reaches the same conclusion. Indeed, all of Plaintiff's statutory claims arise from alleged violations of the Labor Code. Plaintiff's UCL claim likewise is predicated upon Labor Code violations. To the extent Plaintiff contends that alleged violations of IWC Wage Orders should stand because they do not arise under the Labor Code, such argument is not well taken as there is no private right of action to enforce such violations – a plaintiff instead must enforce Wage Order protections by way of a Labor Code claim.

See Nunez v. Nevell Group, Inc. (2019) 35 Cal. App. 5th 838, 846; Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal. App. 4th 1112, 1132; Kim v. Reins International California, Inc. (2020) 9 Cal. 5th 73, 89.

That being said, § 1 of the Arbitration Provision clearly and unmistakably states that all Covered Claims, inclusive of claims under the Labor Code, are subject to arbitration. The CBA's reference to the Labor Code is sufficient to place Plaintiff on notice that such claims are clearly and unmistakably covered under the Arbitration Provision. Plaintiff relies heavily on Wright and Vasquez for the proposition that broad, general language is insufficient to meet the level of clarity required to effect a waiver in collective bargaining agreement. However, those cases are inapposite because the waivers at issue did not, unlike the present case, contain specific statutory references. The arbitration clause in Wright provided for arbitration of '[m]atters under dispute'. The collective bargaining agreement itself stated in relevant part that the 'Agreement is intended to cover all matters affecting wages, hours, and other terms and conditions of employment . . . Anything not contained in this Agreement shall not be construed as being part of this Agreement.' See Wright, 525 U.S. at 73. The Supreme Court determined that the phrase 'matters under dispute' could be understood to mean matters in dispute under the contract. Moreover, the remainder of the contract contained no explicit incorporation of statutory antidiscrimination requirements. Similarly, the collective bargaining agreement at issue in Vasquez provided in pertinent Calendar No.: Event ID:  TENTATIVE RULINGS

3057719 CASE NUMBER: CASE TITLE:  VENEGAS VS. INNOVATIVE FACILITY SERVICES [IMAGED]  37-2022-00051198-CU-OE-NC part that 'it is the intent and purpose of the parties hereto that all grievances or disputes arising between them over the interpretation or application of the terms of this Agreement, except jurisdictional disputes and subcontracting, shall be settled by the procedure set forth in Article [V] hereof . . . .' The Second District Court of Appeal, like the Supreme Court in Wright, determined that the collective bargaining agreement's general language was insufficient to effect a waiver as neither disability discrimination, FEHA, nor the ADA was mentioned.

Unlike Wright and Vasquez, the Arbitration Provision at issue here refers specifically to claims based on the Labor Code, among other areas of law. The foregoing clearly and unmistakably subjects all of Plaintiff's claims to arbitration. To the extent Plaintiff cites Loaiza and Martinez for the proposition that generally mentioning the Labor Code – as opposed to citing specific Labor Code section – is insufficient, the court finds such argument not persuasive given that Loaiza and Martinez are unpublished opinions and thus do not constitute binding authority. Finally, Plaintiff's argument that the resolution of her claims does not require an interpretation of the CBA misses the mark. For the pending motion's purposes, the court need only decide that: (1) a valid arbitration agreement exists; (2) such arbitration agreement covers Plaintiff's claims; and (3) the arbitration agreement clearly and unmistakably includes Plaintiff's statutory claims. Regardless of whether Plaintiff seeks to vindicate her rights under the CBA or Labor Code, she must do so through arbitration.

In light of the foregoing, the court grants Defendant's motion to compel arbitration. This litigation is stayed pending the outcome of the arbitration hearing. See 9 U.S.C. § 3.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 5, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of April 5, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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