Judge Daniel M. Crowley, Case Number: 24STCV31309, Date: 2025-06-05 Tentative Ruling

Defendants Kennedy-Wilson Holdings, Inc.’s, William J. McMorrow’s, Matt Windsch’s, and Justin Enbody’s motion to compel arbitration of Plaintiff Gautam Doshi’s claims in this action is granted. This case is stayed pending arbitration.

Defendants Kennedy-Wilson Holdings, Inc. (“Kennedy-Wilson”), William J. McMorrow (“McMorrow”), Matt Windsch (“Windsch”), and Justin Enbody (“Enbody”) (collectively, “Defendants”) move for an order compelling arbitration of all claims asserted by Plaintiff Gautam Doshi (“Doshi”) (“Plaintiff”) and staying the instant action during the pendency of arbitration. (Notice of Motion, pg. 2; 9 U.S.C. §3; C.C.P. §1281.4.)

Plaintiff’s 5/22/25 evidentiary objections to the Declaration of Andrew Wardinski (“Wardinski”) is overruled as to Nos. 1 and 2.[1]

On November 26, 2024, Plaintiff filed the instant action against Defendants, asserting eight causes of action: (1) wrongful discharge in violation of public policy; (2) discrimination based on race in violation of FEHA; (3) harassment based on race in violation of FEHA; (4) failure to prevent discrimination, harassment, or retaliation; (5) retaliation in violation of Labor Code §1102.5; (6) hostile work environment harassment; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. (See Complaint.)

Defendants filed the instant motion on January 23, 2025. Plaintiff filed his opposition on May 22, 2025. On May 29, 2025, Defendants filed their 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 he entered into the Mutual Agreement for to Arbitrate Claims (“Arbitration Agreement”) that contained the relevant arbitration clause. (Decl. of Wardinski ¶13, Exh. C.) Second, the Arbitration Agreement expressly covers “all claims or causes of action that [Kennedy-Wilson] may have against me or that I may have against [Kennedy-Wilson] or the [Kennedy-Wilson]’s current and former owners, partners, members, officers, directors, employees, representatives and agents, all subsidiary and affiliated entities, all benefit plans, the benefit plans’ sponsors, fiduciaries, administrators, affiliates, and all successors and assigns of any of them.” (Decl. of Wardinski ¶13, Exh. C at ¶1.)

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 pre-dispute jury waivers, pre-dispute 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.)

Defendants proved the existence of an arbitration agreement with Plaintiff. Defendants submitted evidence that on March 11, 2030, Plaintiff signed the Arbitration Agreement. (Decl. of Wardinski ¶13, Exh. C.)

Plaintiff challenges the authenticity of his e-signature on the Arbitration Agreement proffered by Defendants. (Opposition, pgs. 5-6.) Plaintiff’s arguments regarding his e-signature are unavailing. Under California law, e-signatures have “the same legal effect as a handwritten signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1061.) A proponent of an e-signature may authenticate the signature by introducing any “evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is,” which includes circumstantial evidence. (Id.; Evid. Code §1400; People v. Calhoun (2019) 38 Cal.App.5th 275, 313.) This includes “a showing of the efficacy of any security procedure applied to determine the person to which the . . . electronic signature was attributable.” (Espejo, 246 Cal.App.4th at pg. 1061, citing Civ. Code §1633.9(a).)

Here, Defendants provided a detailed declaration from an HR professional. Wardinski, who has worked for the Company for 24 years. Wardinski declares that he is familiar with the Kennedy-Wilson’s onboarding processes and system for collecting and recording policy acknowledgements and personnel records as well as IT and password protocols. (Decl. of Wardinski ¶¶1-2.) Wardinski explains that Kennedy-Wilson uses a program called UKG Pro (“UltiPro”) to disseminate and track the completion of onboarding tasks and the acknowledgement of policies. (Decl. of Wardinski ¶3.) Wardinski’s declaration describes how employees receive access to the system by using their personal email and a unique password that they create. (Decl. of Wardinski ¶3.) Wardinski’s declaration attaches communications showing that Plaintiff received instructions for accessing UltiPro at his personal email address, which “is only accessible by Mr. Doshi by using his Kennedy Wilson network ID and password” and he is “specifically prohibit[ed] from sharing [his] passwords with anyone, including IT.” (Decl. of Wardinski ¶14, Exhs. A, B.)

Wardinski also describes how Plaintiff asked for help in accessing the onboarding module and that Wardinski personally visited Plaintiff’s office when Plaintiff accessed the module and signed the documents, including the Agreement. (Decl. of Wardinski ¶¶4-10.) Plaintiff agrees that this meeting occurred and does not dispute that he accessed the module and executed its documents. (Decl. of Doshi ¶3.) Plaintiff declares that he does not recall seeing the Agreement specifically. (Decl. of Doshi ¶5.) However, Wardinski declares that UltiPro tracks and records an employee’s name, ID, and email when they click and access a module and review or sign documents, and that, in his HR role, he can access UltiPro to run a report and see which documents an employee has reviewed and e-signed. (Decl. of Wardinski ¶¶11-12.) Wardinski declares that he reviewed these UltiPro records and that the records reflect that Plaintiff accessed and e-signed the Agreement on March 11, 2020, after which a copy was placed in his personnel file in the ordinary course of business. (Decl. of Wardinski ¶¶11-13.) Defendants properly authenticate the Arbitration Agreement pursuant to Espejo. (See Espejo, 246 Cal.App.4th at pg. 1062 [identifying “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 of the employment agreement . . . provide[d] the necessary factual details to properly authenticate the document”].)

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

The claims covered by this Agreement include, but are not limited to: claims for breach of any contract or covenant; tort claims; claims for discrimination or harassment (including, but not limited to, race, sex, religion, national origin, age, medical condition, disability or sexual orientation); claims for retaliation; claims for violation of public policy; claims for unpaid wages; and claims for violation of any federal, state, local or other law, statute, regulation or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the California Fair Employment & Housing Act (and other state’s anti-discrimination laws), the California Labor Code, and/or the Fair Labor Standards Act.

(Decl. of Wardinski ¶13, Exh. C at ¶1, emphasis added.) Plaintiff’s claims against Defendants include claims for discrimination or harassment (specifically race discrimination), retaliation, violation of public policy, violation of a state regulation, and violation of FEHA and the California Labor Code. Based on the foregoing, Defendants met their 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 is a contract of adhesion and therefore oppressive; and (2) the Agreement was hidden from Plaintiff in multiple ways that sustain a finding of surprise. (Opposition, pgs. 9-11.)

“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 he had no meaningful opportunity to negotiate the Arbitration Agreement is unavailing. 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 pre-dispute 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 document that provided Plaintiff the “opportunity to discuss [the] Agreement with [Plaintiff’s] private, legal counsel and have taken advantage of that opportunity to the extent [Plaintiff] wanted to do so.” (Decl. of Wardinski ¶13, Exh. C at ¶10.) The Arbitration Agreement also states that it “is not and shall not be construed to create any contract of employment, express or implied. Nor does this Agreement alter the at will status of any employment.” (Decl. of Wardinski ¶13, Exh. C at ¶9.)

Second, Plaintiff’s argument that he was not provided with the JAMS rules, and that the contract is therefore unenforceable is also unavailing. In Lane v. Francis Capital Management LLC, the Court of Appeal determined that the Defendant’s failure to attach a copy of the AAA rules did not render the arbitration agreement at issue procedurally unconscionable. (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 691.) The Lane Court stated there could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties on the Internet. (Id.) Here, as in Lane, the JAMS rules are accessible to the parties on the Internet and Plaintiff does not identify anything unfair or surprising in the JAMS rules.

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) violates FEHA and Armendariz; (2) has an infinite duration; (3) improperly prevents Plaintiff from recovering costs in arbitration; and (4) forbids Plaintiff from bringing representative actions. (Opposition, pgs. 10-14; Armendariz, 24 Cal.4th at pg. 110-111.)

“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’s argument that the attorneys’ fees provision that applies if either party breaches the Arbitration Agreement is in conflict with FEHA is unavailing. California courts have previously found very similar provisions to be valid and enforceable. (See, e.g., Acosta v. Kerrigan (2007) 150 Cal.App.4th 1124, 1132 [enforcing similar provision and comparing fees to sanctions after discovery motion]; Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40, 80 [reversing denial of attorneys’ fees related to motion to compel based on substantially similar provision].) Assuming, arguendo, such a provision is unenforceable in a FEHA case, other language in the Arbitration Agreement limits the provision in such a situation. For example, another provision requires the arbitrator to follow fee shifting rules for statutory claims (like FEHA). (Decl. of Wardinski ¶13, Exh. C at ¶7 [“However, to the extent permissible under the law, and following the arbitrator’s ruling on the matter, the arbitrator may rule that the arbitrator’s fees and costs be distributed in an alternative manner. . . . If, however, any party prevails on a statutory or contractual claim that affords the prevailing party attorneys’ fees, the arbitrator may award attorneys’ fees to the prevailing party to the extent permitted by law.”].) The Arbitration Agreement also provides that if the fee shifting provision (or “any provision” of the Agreement) is found unenforceable, then, the “Agreement shall be reformed to the greatest extent possible to ensure that the resolution of all conflicts between the parties are resolved by neutral, binding arbitration.” (Decl. of Wardinski ¶13, Exh. C at ¶8.) Paragraph 10 of the Arbitration Agreement should therefore be read in a manner that conforms with FEHA’s fee-shifting requirements since the Agreement requires the arbitrator to construe the provision to incorporate any relevant legal limitations—including under FEHA. (See Decl. of Wardinski ¶13, Exh. C at ¶8.) Given these other provisions, the presence of a fee provision does not shock the conscience or establish substantive unconscionability.

Second, Plaintiff’s argument that the Arbitration Agreement’s “infinite duration” renders the agreement substantively unconscionable is unavailing. The case cited by Plaintiff, Cook v. University of Southern California, does not hold, as Plaintiff suggests, that all arbitration agreements that continue beyond termination are unconscionable. (Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 324.) Such a holding would conflict with long-standing California law. (Zee Medical Distribution Ass’n, Inc. v. Zee Medical, Inc. (2000) 80 Cal.App.4th 1, 7 [“California cases have long recognized that a contract may, by its express terms, provide for a term of duration of indefinite length and without specific limitation . . .”].)

Cook instead indicates that a provision may go beyond an employee’s termination if there is “a legitimate commercial need.” Such a need was not proffered by the employer in Cook and the court expressed concern that a former employee could be required to arbitrate claims entirely unrelated to their employment, like a later “botched surgery” at a USC hospital. (Cook, 102 Cal.App.5th at pg. 318.) Here, however, Plaintiff does not identify any situation where he would have further dealings with Kennedy-Wilson that are not in some way related to his prior employment. Unlike a large university that has various interactions with members of the community, Kennedy-Wilson is a commercial real estate firm. Any ongoing dealings between Kennedy-Wilson with former employes would, in some respect, relate to their prior employment. As a result, there is a legitimate commercial need for the Agreement to extend beyond the termination of Plaintiff’s employment and to remain binding on the parties until they jointly agree to terminate the Agreement. Furthermore, the Agreement only includes claims “Covered by this Agreement” to the “extent allowed by law” and excludes “claims that may not, as a matter of law, be subject to mandatory arbitration provisions.” (Decl. of Wardinski ¶13, Exh. C at ¶¶1, 2.) A court or arbitrator enforcing the Agreement would therefore be required to apply the Arbitration Agreement so that it only applies to claims that are within a legally permissible scope.

Third, Plaintiff’s argument that the provision providing that the arbitrator may award attorneys’ fees to a prevailing party if permitted by law is unconscionable because it does not specifically state that the arbitrator may also award “costs” is unavailing. Plaintiff’s argument ignores the fact that the Arbitration Agreement separately states that “[t]he arbitrator shall have the authority to grant any party all remedies otherwise available by law,” which would necessarily authorize an award of costs if required by FEHA. (Decl. of Wardinski ¶13, Exh. C at ¶6.)

Finally, Plaintiff’s argument that the Arbitration Agreement forbids him from bringing a representative action is inapposite to the instant motion because Plaintiff does not bring any dispute as a class, collective, or representative action. Nonetheless, the Arbitration Agreement is consistent with applicable law permitting arbitration of an individual PAGA claim and severance of the non-individual PAGA claims. (See Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 662 [“We hold that the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non- individual claims through an agreement to arbitrate,” and therefore “Viking [River Cruises] is entitled to compel arbitration of [plaintiff’s] individual [PAGA] claim.”]; see also Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1118-1119 [“Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff’s individual claims if the agreement is covered by the FAA”].)

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 June 5, 2026, 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 Plaintiff’s evidentiary objections are not consecutively numbered, as required by the CRC. To avoid confusion, the Court labels the two objections 1 and 2, respectively.