Judge Daniel M. Crowley, Case Number: 24STCV07349, Date: 2024-11-18 Tentative Ruling

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Defendant Cardinal Financial Company, Limited Partnership’s motion to compel arbitration of Plaintiff Heather Freund’s claims in this action is granted. This case is stayed pending arbitration.

Defendant Cardinal Financial Company, Limited Partnership (“CFC”) (“Defendant”) moves for an order compelling arbitration of all claims asserted by Plaintiff Heather Freund (“Freund”) (“Plaintiff”) and staying the instant action during the pendency of arbitration. (Notice of Motion, pg. 2; 9 U.S.C. §4; C.C.P. §§1281.2, 1281.4.)

Plaintiff’s 8/23/24 evidentiary objections to the Declaration of Danielle Drabic (“Drabic”) are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11.

Defendant’s 8/29/24 evidentiary objections to the Declaration of Shadie Berenji (“Berenji”) are sustained as to No. 1 and overruled as to Nos. 2 and 3.

Defendant’s 8/29/24 evidentiary objections to the Declaration of Freund are overruled as to Nos. 1, 2, 3.1,[1] 3.2, 4, 5, 6, 7, 8.1, 8.2, 9, 10, 11, 13,[2] 14, and 15.

Plaintiff’s 9/30/24 evidentiary objections to the Supplemental Declaration of Drabic are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and 24.

Defendant’s 8/29/24 request for judicial notice of (1) The American Arbitration Association (“AAA”) Employment Arbitration Rules and Mediation Procedures, available at https://www.adr.org/sites/default/files/EmploymentRules-Web.pdf, (D-RJN, Exh. 1), is granted.

On March 22, 2023, Plaintiff filed the instant action against Defendant, asserting nine causes of action: (1) sex/pregnancy discrimination; (2) violation of pregnancy disability leave law; (3) failure to engage in the interactive process; (4) failure to provide a reasonable accommodation; (5) retaliation; (6) failure to prevent discrimination/retaliation; (7) wrongful termination in violation of public policy; (8) failure to timely pay wages; and (9) failure to provide personnel and payroll records in connection with Plaintiff’s termination on September 7, 2021. (See Complaint ¶18.)

Defendant filed the instant motion on June 14, 2024. Plaintiff filed her opposition on August 23, 2024. On August 29, 2024, Defendant filed its reply.

On September 6, 2024, this Court held a hearing on the instant motion and continued this matter, granting Plaintiff leave to file a sur-reply.

On November 13, 2024, the Court denied Defendant's ex parte request to file supplemental papers in response to Plaintiff’s sur-reply.

Federal law provides for enforcement of this Arbitration Agreement. The Federal Arbitration Act, 9 U.S.C. §1, et seq. (“FAA”), establishes a strong federal policy in favor of arbitration of disputes where a written arbitration agreement exists. Section 2 of the FAA provides, in pertinent part that “[a] written provision . . . to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable.” (9 U.S.C. §2.) The purpose of the FAA is to “reverse the longstanding judicial hostility to arbitration agreements.” (Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 24.) The FAA places arbitration agreements “on an equal footing with other contracts and [requires courts] to enforce them according to their terms.” (AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, 339; see also Rent-A-Center West, Inc. v. Jackson (2010) 561 U.S. 63, 67 [“The FAA reflects the fundamental principle that arbitration is a matter of contract.”].) The FAA will preempt not only a state law that “discriminat[es] on its face against arbitration,” but also a state law that “covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” (Kindred Nursing Centers Limited Partnership v. Clark (2017) 137 S.Ct. 1421, 1426.)

The United States Supreme Court has specifically held that the FAA applies to employment contracts: “[A]s a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms.” (Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612, 1619 [holding that employees must submit to arbitration agreements including those with collective action waivers].)

The FAA restricts a court’s inquiry related to compelling arbitration to two threshold questions: (1) whether there was an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. (Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84.) Here, both criteria are satisfied. First, Plaintiff agreed to arbitration when she entered into the Mutual Agreement to Arbitrate (“Arbitration Agreement”) that contained the relevant arbitration clause. (Decl. of Drabic ¶13, Exh. D.) Second, the Arbitration Agreement expressly covers “any dispute, past, present, or future, that [Defendant] may have against [Plaintiff] or that [Plaintiff] may have against [Defendant].” (Decl. of Drabic ¶13, Exh. D at pg. 1 of 3.)

California law also favors arbitration for dispute resolution. The California Arbitration Act (“CAA”), codified at C.C.P. §1281 et seq., provides, “A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (C.C.P. §1281; see also Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 955 [“[U]nlike predispute jury waivers, predispute arbitration agreements are specifically authorized by statute.”].)

“California law, like federal law, favors enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97, 99.) The public policy in favor of arbitration is so strong that California courts have held that an employee is “bound by the provisions of the [arbitration] agreement regardless of whether [he] read it or [was] aware of the arbitration clause when [he] signed the document.” (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, citing Macaulay v. Norlander (1992) 12 Cal.App.4th 1.) The only prerequisite for a court to order arbitration is a determination that the parties have entered into an agreement to arbitrate the dispute. (United Transportation Union v. Southern California Rapid Transit District (1992) 7 Cal.App.4th 804, 808.) Thus, arbitration must be ordered “unless the agreement clearly does not apply to the dispute in question.” (Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189.)

Defendant proved the existence of an arbitration agreement with Plaintiff. Defendant submitted evidence that on August 12, 2020, Plaintiff signed the Arbitration Agreement and a second document entitled “Terms of Use and Consent to Electronic Communications and Electronic Signature,” on August 11, 2020, wherein Plaintiff agreed to electronically sign the Arbitration Agreement and for Defendant to provide all communications electronically by email, text message, or via Defendant’s websites or applications, including pre-hire and post-offer documentation. (See Decl. of Drabic ¶12, Exh. C.)

Plaintiff argues she never “saw, signed or consented” to the Arbitration Agreement, and would not have signed the agreement. (See Opposition, pg. 5; Decl. of Freund ¶¶6-8.) Plaintiff also argues Defendant failed to authenticate the Arbitration Agreement. (See Opposition, pgs. 5-6.)

Plaintiff’s argument is unavailing. Here, as in Espejo v. Southern California Permanente Medical Group, Defendant has adequately authenticated Plaintiff’s electronic signature: the Declaration of Drabic detailed Defendant’s “security precautions regarding transmission and use of an applicant’s unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line,” thereby concluding that the plaintiff-employee’s name “could only have been placed on the signature pages . . . by someone using [Plaintiff’s] unique username and password.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062; see Decl. of Drabic ¶¶8, 9, 11, 14.) Moreover, the Supplemental Declaration of Drabic establishes that Plaintiff accessed the iSolved system both on August 11th and 12th, 2020, and electronically signed all documents, including the Arbitration Agreement. (Supp.-Decl. of Drabic ¶¶11-21, Exhs. 9, 18, 25-27.)

On a motion to compel arbitration, it is sufficient to provide evidence that the signatory was required to use a unique, private login and password to create the electronic signature, along with evidence detailing the procedures the signatory had to follow to electronically sign the document and the accompanying security precautions. (Espejo, 246 Cal.App.4th at pg. 1062.)

Therefore, Defendant met its burden to demonstrate the electronic signature on the Arbitration Agreement was the act of Plaintiff and has sufficiently demonstrated its procedures and security processes for accessing and signing the Arbitration Agreement. (See C.C.P. §1633.9(a).)

Additionally, one’s failure to read or understand an arbitration agreement is no bar to enforcement. (Harris v. Tap Worldwide LLC (2016) 248 Cal.App.4th 373, 383 [“The fact that [plaintiff] either chose not to read or take time to understand these [arbitration] provisions is legally irrelevant.”]; Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1589 [“Generally, one who assents to a writing is presumed to know its contents and cannot escape being bound by its terms merely by contending that he did not read them.”], internal citations omitted.)

Based on the foregoing, Defendant proved the existence of a valid Arbitration Agreement that is enforceable by Defendant.

[A]pplies, without limitation, to claims based upon or related to discrimination, harassment, retaliation, . . . wages, minimum wage and overtime or other compensation or any monies claimed to be owed, meal breaks and rest periods, termination, . . . Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, . . . state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state, or local legal claims arising out of or relating to your application for employment, employment, or termination of employment.

(Decl. of Drabic ¶13, Exh. D at pg. 1 of 3.) Plaintiff’s claims arise from her employment relationship with Defendant and are therefore governed by the Arbitration Agreement. Based on the foregoing, Defendant met its burden of establishing the Arbitration Agreement covers the causes of action asserted in Plaintiff’s Complaint.

“[P]rocedural 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.” (Armendariz, 24 Cal.4th at pg. 102.) Courts invoke a sliding scale 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, i.e., the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to conclude that the term is unenforceable, and vice versa. (Id., at pg. 114.) Plaintiff bears the burden of proving that the provision at issue is both procedurally and substantively unconscionable.

Plaintiff argues the Arbitration Agreement is procedurally unconscionable because (1) the Arbitration Agreement includes the element of oppression and surprise to support a finding of a high level of procedural unconscionability based on the way Defendant chose to sneak the arbitration policy into its employment relationship by hiding it within the iSolved system and not calling any attention to it; (2) Defendant never discussed arbitration with Plaintiff and she never saw or received a copy of the Arbitration Agreement during her employment and prior to the instant motion; (3) the Arbitration Agreement is a contract of adhesion and was presented without an opportunity for meaningful negotiation; and (4) the Arbitration Agreement does not state that it is voluntary. (Opposition, pg. 13; Decl. of Freund ¶¶5-8.)

“Procedural unconscionability focuses on the elements of oppression and surprise. [Citations] ‘Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice . . . Surprise involves the extent to which the terms of the bargain are hidden in a ‘prolix printed form’ drafted by a party in a superior bargaining position.’ [Citations.]” (Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1469.)

Procedural unconscionability “focuses on the unequal bargaining positions and hidden terms common in the context of adhesion contracts.” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1212-1213.) Although standard employment agreements offered on a “take it or leave it” basis are generally considered contracts of adhesion, this alone is not enough to equate to unconscionability. (See Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817-819 [“To describe a contract as adhesive in character is not to indicate its legal effect. It is, rather, ‘the beginning and not the end of the analysis insofar as enforceability of its terms are concerned.’”].) Adhesion contracts are “fully enforceable . . . unless certain other factors are present which under established legal rules—legislative or judicial—operate to render it otherwise.” (Id. at pgs. 819-820; Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1409 [adhesion alone does not render arbitration agreements unconscionable]; see also Armendariz, 24 Cal.4th at 114; Lagatree v. Luce, Forward, Hamilton & Scripps, LLP (1999) 74 Cal.App.4th 1105 [discussing many authorities upholding arbitration agreements contained in adhesion contracts].)

Plaintiff’s argument in opposition that her requirement to sign the Arbitration Agreement as a condition of his employment is unavailing and is unsupported by case law. The adhesive nature of arbitration agreements in the employment context alone does not render an agreement unenforceable. (Lagatree, 74 Cal.App.4th at pg. 1127 [“[C]ases uniformly agree that a compulsory predispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.”]; Armendariz, 24 Cal. 4th at pg. 113 [holding that the requirement that the employee sign an arbitration agreement may contain some elements of procedural unconscionability, but that, in itself, does not invalidate the arbitration agreement]; Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, 796 [“Where there is no other indication of oppression or surprise, the degree of procedural unconscionability of an adhesion agreement is low[.]”].)

Here, the Arbitration Agreement is a stand-alone, three-page document which Plaintiff accessed through iSolved. Defendant notified Plaintiff in clear, bold language about the presence of the Arbitration Agreement and the document is labeled in capital letters, “MUTUAL AGREEMENT TO ARBITRATE.” The Arbitration Agreement contains short sections with headings describing the contents of each paragraph. (Decl. of Drabic, Exh. D.) Further, there is no evidence that Plaintiff was not given an opportunity to read the Arbitration Agreement. On the contrary, Defendant submitted evidence that it provides employees the opportunity to review and sign documents at their leisure and to spend as much time as they wish on each document. (Decl. of Drabic ¶9.) Therefore, Plaintiff has failed to demonstrate any procedural unconscionability. (Hicks v. Superior Court (2004) 115 Cal.App.4th 77, 91.)

Based on the foregoing, the Court finds the Arbitration Agreement is, at most, minimally procedurally unconscionable. However, as discussed below, the Court finds the arbitration agreement is not substantively unconscionable.

Plaintiff argues the Arbitration Agreement is substantively unconscionable because it (1-2) lacks mutuality in the claims and parties covered; (3) does not provide for adequate discovery; (4-5) imposes attorney’s fees and costs unique to arbitration; (6-7) has an indefinite scope and duration; and (8) is governed by “then-existing” rules of an arbitration provider (e.g., AAA, JAMS). (Opposition, pgs. 14-20; Armendariz, 24 Cal.4th at pg. 111.)

“Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create ‘overly harsh’ or ‘‘one-sided’ results’ [Citations] that is, whether contractual provisions reallocate risks in an objectively unreasonable or unexpected manner. [Citation] Substantive unconscionability ‘may take various forms,’ but typically is found in the employment context when the arbitration agreement is ‘one-sided’ in favor of the employer without sufficient justification, for example, when ‘the employee’s claims against the employer, but not the employer’s claims against the employee, are subject to arbitration.’ [Citations].” (Roman, 172 Cal.App.4th at pgs. 1469-1470.) In determining whether an arbitration agreement is unconscionable, the Court considers whether the agreement: (1) provides for a neutral arbitrator; (2) provides for reasonable discovery; (3) requires a written award; (4) provides for the same remedies that otherwise would be available in court; and (5) does not require employees to bear costs unique to arbitration. (See Armendariz, 24 Cal.4th at pgs. 102-103.)

First, Plaintiff argues the Arbitration Agreement lacks mutuality because of the obligation to arbitrate “any dispute, past, present, or future” on “an individual basis,” and prohibits the arbitrator from presiding over a class or collective action (“Class Action Waiver”). (Opposition, pg. 15; Decl. of Drabic, Exh. D §§1, 5.) Plaintiff’s argument is unavailing because her Complaint does not allege a class or collective action. Further, class action waivers must be enforced as written. (See Epic Systems Corp v. Lewis (2018) 138 S.Ct. 1612, 1623.)

Second, Plaintiff also argues the Arbitration Agreement lacks mutuality because it requires Plaintiff to arbitrate her claims against Defendant and all of its “officers, directors, members, partners, owners, shareholders, employees, benefit plans, plans’ sponsors, fiduciaries, administrators, affiliates, agents, predecessors, successors or assigns” (“Related Entities”). (Opposition, pg. 15; Decl. of Drabic ¶13, Exh. D §1.) Plaintiff’s argument is unavailing because the Arbitration Agreement requires both parties to arbitrate all claims against each other and defines “Company” to include all of Cardinal’s “affiliates, subsidiaries, and dba’s,” thereby binding them to arbitrate all claims against Plaintiff. (Decl. of Drabic ¶13, Exh. D.) Plaintiff offers no authority holding that requiring arbitration of those standing in the shoes of an arbitration signatory to assert a claim falling under the Arbitration Agreement somehow renders an agreement substantively unconscionable, particularly in light of third-party beneficiary rights and equitable estoppel arguments. (See, e.g., JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1240 [“A nonsignatory can be compelled to arbitrate when a preexisting relationship existed between the nonsignatory and one of the parties to the arbitration agreement . . . [or] when [the nonsignatory] is suing as a third-party beneficiary of the contract containing the arbitration clause.”].)

Plaintiff’s reliance on Cook v. University of Southern California to argue that the Arbitration Agreement lack mutuality is misplaced. The Cook Court found that the arbitration agreement lacked mutuality because the arbitration agreement required the plaintiff to arbitrate all claims against USC “or any of its related entities . . .” regardless of whether those claims were related to the plaintiff’s employment but did not similarly require those entities or individuals to arbitrate against the plaintiff. (See Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 326-327.) Here, the Arbitration Agreement does not impose such a requirement. Therefore, Cook is inapposite.

Third, Plaintiff’s argument that the discovery permitted under the Arbitration Agreement is inadequate is also unavailing. Here, the Arbitration Agreement permits the parties to conduct sufficient discovery via depositions, written discovery subpoena witnesses and documents, and allows the parties to request leave of the arbitrator for additional discovery. (Decl. of Drabic ¶13, Exh. D at §4.) This discovery is adequate, reasonable, and satisfies Armendariz. (Armendariz, 24 Cal. 4th at pg. 106.) Armendariz also states that lack of discovery is not grounds for holding a FEHA claim inarbitrable. (Id.) Plaintiff’s reliance on Baxter v. Genworth North America Corp. is misplaced because unlike the agreement in Baxter, here, the Arbitration Agreement does not prohibit Plaintiff or her counsel from obtaining information outside of the formal discovery process.

Fourth, Plaintiff argues that the Arbitration Agreement is unconscionable contains attorneys’ fees clauses that would require Plaintiff to pay attorneys’ fees that she would not pay in court, and thus are unfair and violate Armendariz. (Opposition, pgs. 17-18.) However, the Arbitration Agreement states that Defendant will pay the required arbitration-related fees and each party will bear their own attorneys’ fees, except that “if any party prevails on a claim which affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law.” (Decl. of Drabic ¶13, Exh. D at §7.) Because the Arbitration Agreement specifically requires that the arbitrator apply applicable laws governing award of attorneys’ fees and costs, the agreement is not unconscionable.

Plaintiff’s reliance on Trivedi v. Curexo Technology Corp. is misplaced because, unlike here, the arbitration agreement in Trivedi unequivocally provided that the “prevailing party shall be entitled to recovery from the other party all costs, expenses and reasonable attorney [] fees.” (Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 392.) No such provision is present in the instant Arbitration Agreement.

Fifth, Plaintiff’s argument that the Arbitration Agreement contains an Offer of Judgment clause that includes a cost-shifting provision that is not limited to instances where the Plaintiff’s claims were frivolous, unreasonable, or groundless, and therefore it would unconscionably require Plaintiff to pay costs that she would not pay in court is similarly unavailing. The Arbitration Agreement provides that the parties agree to use the procedures under Federal Rules of Civil Procedure 68 for offers of judgment. (Decl. of Drabic ¶13, Exh. D, § 8.) Courts of Appeal have already adjudicated this issue and concluded that parties to an arbitration agreement can incorporate the Federal Rules of Civil Procedure without rendering the agreement unenforceable. (See Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal.App.5th 222, 242.) Should Defendant prevail at arbitration after an offer of judgment and Plaintiff believes that substantive FEHA law precludes an award of fees, she can make that argument to the arbitrator. (Decl. of Drabic ¶13, Exh. D, §8 [stating arbitrator “shall retain jurisdiction to decide the motion and award costs to the offeror as warranted”]; see id. at §3 [“The Arbitrator will apply the substantive federal, state, or local law applicable to the claim(s) asserted.”].)

Sixth, Plaintiff’s argument that the Claims Covered is substantively unconscionable because it applies to all claims regardless of whether they arose from the employment relationship (Opposition, pg. 19) is unavailing. The Claims Covered defines arbitrable claims as those that “aris[e] out of or relat[e] to [Plaintiff’s] employment.” (Decl. of Drabic ¶13, Exh. D at §1.) Under ordinary contract interpretation principles, the Court must analyze “[t]he whole of [the Arbitration Agreement] . . . taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code §1641.) Plaintiff’s interpretation requires this Court to ignore express provisions of the Arbitration Agreement, nullifying the parties’ express agreement to limit arbitrable claims to those arising out of the parties’ employment relationship.

Seventh, Plaintiff’s further contention that the MAA is unconscionable because it survives indefinitely following termination of employment is also unavailing. The Arbitration Agreement is not indefinite because, unlike the agreement in Cook, the instant Arbitration Agreement does not include an express term of duration that demonstrates it would not be terminable at will after a reasonable time. (See Cook, 102 Cal.App.5th at pg. 326 [“The arbitration agreement specifically provides that it will survive unless and until Cook and USC’s president specifically terminate the agreement in a writing, signed by both parties, which expressly mentions the arbitration agreement.”]; see also Reigelsperger v. Siller (2007) 40 Cal.4th 574, 580 [“arbitration agreements that do not specify a term of duration are terminable at will after a reasonable time has elapsed” even where the agreement provides that it may cover future disputes between the parties and are therefore enforceable].) Here, there is not an express term of duration in the Arbitration Agreement; therefore, the Arbitration Agreement follows the general principle that it is terminable at will after a reasonable time applies.

Finally, Plaintiff argues that the Arbitration Agreement provides that “arbitration will be administered by the AAA, and except as provided in this Agreement, will be under the then current Employment Arbitration Rules of the AAA,” and is therefore unconscionable because states it is governed by unknown future existing arbitration rules. (Opposition, pgs. 19-20; Hasty v. American Automobile Assn. (2023) 98 Cal.App.5th 1041, 1061, review denied (May 1, 2024); see Decl. of Drabic ¶13, Exh. D at §3.) This argument is also unavailing.

The Court in Hasty observed that “although not addressed by the parties,” the hyperlink to the JAMS rules did not lead to a functioning webpage, and “[i]t is unclear how” an employee would know the term being agreed to when the rules might be different when the dispute arises in the future. (Hasty, 98 Cal.App.5th at pgs. 1060-1061.)

Here, unlike in Hasty, the hyperlink provided is functioning and the Arbitration Agreement provides an alternative method of searching for the AAA Rules. (See D-RJN Exh. 1.) Plaintiff points to no provision that is unconscionable. (See Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246 [requiring plaintiff to specifically challenge “some element of the AAA rules of which she had been unaware when she signed the arbitration agreement”].)

Based on the evidence before the Court, the terms of the Arbitration Agreement do not create overly harsh or one-sided results, satisfying the requirements for a substantively conscionable agreement.

Based on the foregoing, the Court finds the Arbitration Agreement is not substantively unconscionable.

Pursuant to C.C.P. §1281.4, if an application has been made to a court involving order to arbitrate a controversy and such application is undetermined, the court where the application is pending shall, upon motion of a party to the action, stay the action until the application for an order to arbitrate is determined. (C.C.P. §1281.4.)

The case is stayed pending arbitration. The Court sets a non-appearance case review for November 18, 2025, at 8:30 a.m. The parties are directed to submit a joint statement five calendar days in advance, apprising the Court of the status of the arbitration.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendants’ objections to the Declaration of Freund includes two objections labeled No. 3. (See Evidentiary Objections to Decl. of Freund, pgs. 2-3.) To avoid confusion, the Court labels the first objection labeled “3” as “3.1” and the second objection as “3.2.” The same applies to the two objections labeled No. 8. (See Evidentiary Objections to Decl. of Freund, pg. 4.) Defendant’s counsel is encouraged to proofread documents before filing with this Court.

[2] The Court notes there is no objection No. 12.