Judge: Daniel S. Murphy, Case: 22STCV33325, Date: 2023-03-22 Tentative Ruling
Case Number: 22STCV33325 Hearing Date: March 22, 2023 Dept: 32
MARK DRU, Plaintiff, v. TRILLER HOLD CO. LLC,
et al., Defendants. |
Case No.: 22STCV33325 Hearing Date: March 22, 2023 [TENTATIVE]
order RE: defendants’ motion to compel arbitration
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BACKGROUND
On October 11, 2022, Plaintiff Mark
Dru filed this action against Defendants Triller Hold Co. LLC and Triller Inc.
(now Triller Platform Co.), alleging (1) breach of contract, (2) breach of the
covenant of good faith and fair dealing, (3) declaratory judgment, (4) failure
to pay wages, and (5) violation of Labor Code section 221.
Plaintiff alleges that Defendants
terminated him and repudiated an agreement that allows Plaintiff to purchase
certain shares in Triller HoldCo. Plaintiff alleges that his right to purchase said
shares is reflected in his Employment Agreement, the Warrant to purchase the shares,
and the Severance Agreement he signed upon his termination.
All three of these agreements
contain an arbitration clause. Accordingly, on February 28, 2023, Defendants
filed the instant motion to compel arbitration.
LEGAL STANDARD
The California Arbitration Act (CAA)
states that “[o]n petition of a party to an arbitration agreement alleging the
existence of a written agreement to arbitrate a controversy and that a party to
the agreement refuses to arbitrate that controversy, the court shall order the
petitioner and the respondent to arbitrate the controversy if it determines that
an agreement to arbitrate the controversy exists….” (Code Civ. Proc, § 1281.2.)
“The party seeking arbitration bears the burden of proving the existence of an
arbitration agreement, and the party opposing arbitration bears the burden of
proving any defense, such as unconscionability.” (Pinnacle Museum Tower Assn.
v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)
DISCUSSION
I.
Existence of Valid Agreement
Plaintiff does not dispute that all
three agreements at issue contain arbitration provisions covering the claims
asserted in the complaint. Plaintiff does not dispute signing all three
agreements. Defendants dispute the validity of the Severance Agreement.
However, regardless of which agreement applies, it is clear by a preponderance
of the evidence that Plaintiff has consented to arbitration of the claims at
issue.
The burden thus shifts to Plaintiff
to articulate a defense against enforcement. Plaintiff argues that the agreements
are unconscionable for a variety of reasons.
II.
Unconscionability
Unconscionability has both a procedural
and a substantive element. (Aron v. U-Haul Co. of California (2006) 143
Cal.App.4th 796, 808.) Both elements must be present for a court to invalidate
a contract or clause. (Ibid.) However, the two elements need not be
present in the same degree; courts use a sliding scale approach in assessing
the two elements. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227,
242.)
a. Applicability of Armendariz
With regards to a mandatory employment
arbitration agreement, the Supreme Court has imposed the following requirements:
(1) the agreement must provide for a neutral arbitrator; (2) the agreement must
provide for more than minimal discovery; (3) the arbitration decision must be
written and disclose the essential findings and conclusions upon which an award
is based; (4) the agreement must provide for all of the types of relief that would
otherwise be available in court; and (5) the agreement must not require
employees to pay the costs of arbitration. (Armendariz v. Foundation Health
Psychare Services, Inc. (2000) 24 Cal.4th 83, 102.)
There is an initial dispute over whether Armendariz
applies to this case. “Armendariz applies to unwaivable claims that
arise under the FEHA or are tied to a fundamental public policy.” (Giuliano
v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1288.) “Armendariz does
not apply to . . . [a] ‘garden variety’ breach of contract action that involves
neither FEHA nor Tameny claims.” (Ibid.) The Armendariz
requirements did not apply in Giuliano because that case involved a “contract
claim for a $5 million to $8 million bonus and a $500,000 severance payment
[which] is distinguishable from . . . statutory overtime or minimum wage claims
. . . .” (Id. at p. 1289.)
Relying on Giuliano, Defendants
argue that this action also does not involve FEHA or public policy claims
because Plaintiff similarly seeks compensation over a severance payment. Like Plaintiff
here, the plaintiff in Giuliano also brought a claim for “statutory
wages under Labor Code section 200 et seq. based on the nonpayment of
the bonus and severance payment allegedly due under the contract.” (Giuliano,
supra, 149 Cal.App.4th at p. 1281.) The court rejected the plaintiff’s
argument that “[t]he right to be paid wages earned is part of the public policy
of the State of California and is not waivable” because the case was distinguishable
from cases involving overtime or minimum wage. (Id. at p. 1289.)
In opposition, Plaintiff argues that Giuliano
was wrongly decided and points out that “California recognizes the prompt
payment of wages as a fundamental policy which involves a broad public
interest.” (See Jones v. Humanscale Corp. (2005) 130 Cal.App.4th
401, 412.) However, Giuliano did not repudiate California’s recognition
of prompt wage payment as a fundamental public policy. Rather, it held that a
claim for substantial bonus and severance payment arising from contract does
not invoke the public policy as to render the claim subject to Armendariz.
(Giuliano, supra, 149 Cal.App.4th at p. 1290.) Plaintiff’s claims here
are similarly based on purported contractual rights beyond statutory overtime
or minimum wage. Plaintiff cites to no case overturning Giuliano or
refusing to apply it to a similar scenario. In fact, in a case decided even
before Giuliano, the court declined to apply Armendariz where “[Plaintiff]
does not raise claims under FEHA, nor is the Employment Agreement a ‘generic’
or standard agreement. Moreover, Parker earned $ 700,000 annual salary and
negotiated or had the opportunity to negotiate the terms of the Employment
Agreement and Telecom Agreement. He is also an attorney. The unconscionability
rules of Armendariz have no application here.” (Parker v.
McCaw (2005) 125 Cal.App.4th 1494, 1507.)
Furthermore, as discussed below, the arbitration
provision at issue is not unconscionable even under Armendariz, and any
unconscionable provision can be severed without permeating the arbitration
agreement as a whole.
b. Procedural
Unconscionability
Procedural unconscionability “focuses on
two factors: ‘oppression’ and ‘surprise.’ ‘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
supposedly agreed-upon terms of the bargain are hidden in the prolix printed
form drafted by the party seeking to enforce the disputed terms.” (Zullo v.
Superior Court (2011) 197 Cal.App.4th 477, 484, internal citations and
quotations omitted.)
Plaintiff argues that the agreement was a
condition of employment, presented on a take-it-or-leave-it basis. However, an
adhesion contract, by itself, presents only a minimal degree of procedural
unconscionability. (Serpa v. California Surety Investigations, Inc. (2013)
215 Cal.App.4th 695, 704.) “[T]he compulsory nature of a predispute arbitration
agreement does not render the agreement unenforceable on grounds of coercion or
for lack of voluntariness.” (Lagatree v. Luce, Forward, Hamilton &
Scripps (1999) 74 Cal.App.4th 1105, 1129.) Additionally, Plaintiff does not
dispute that the employment agreement here was the result of arms-length
negotiations and that Plaintiff consulted counsel before signing. There is no
indication that Plaintiff was precluded from negotiating the arbitration clause.
Plaintiff next contends that the agreement
incorporates the arbitration rules of the Alternative Resolution Centers (ARC)
without attaching them, thus subjecting Plaintiff to surprise. However, the
failure to attach rules is not dispositive unless the substance of the rules
themselves are at issue. (See Baltazar v. Forever 21 (2016) 62 Cal.4th
1237, 1246.) ARC rules are not substantively unconscionable, as discussed
below.
Plaintiff then takes issue with the fact
that “the Alternative Resolution Centers does not even provide rules dedicated
to employment matters, instead simply providing a single set of rules for all
claims.” (Opp. 6:6-8.) Plaintiff fails to explain why this is an issue. Plaintiff
cites to inapposite cases where the arbitration agreement was not provided at
all or where the agreement incorporated rules that did not exist at the time the
agreement was signed. (Opp. 6:12-24.) By contrast, it is clear in this case
which arbitration rules apply, especially because there is only one set of
rules.
c. Substantive Unconscionability
Substantive unconscionability focuses on
the actual terms of the agreement and evaluates whether they create overly
harsh or one-sided results as to shock the conscience. (Suh v. Superior Court
(2010) 181 Cal.App.4th 1504, 1515.)
Plaintiff argues that ARC rules violate
the “minimal discovery” standard by being silent on the minimum amount of discovery
that a party is guaranteed by right. Plaintiff contends that “[u]nder this
discovery restriction, Mr. Dru cannot obtain any discovery without a showing of
good cause to the Arbitrator, who in his or her discretion may or may not
authorize the discovery.” (Opp. 7:22-26.) There is nothing wrong with leaving
discovery to the discretion of the arbitrator. Courts must “assume that the
arbitrator will operate in a reasonable manner in conformity with the law.”
(See Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 984.) Nothing in
the ARC rules limits Plaintiff’s discovery rights. Being silent on discovery is
not the same as imposing a limitation. Plaintiff cites to inapposite cases
where the arbitration rules imposed specific limits on discovery, such as the
number of depositions or interrogatories. (Opp. 8:9-21.) By contrast, ARC rules
impose no such limits.
Next, Plaintiff argues that the arbitration
clause improperly calls for an equal division of fees between the parties
instead of making the employer pay costs unique to arbitration. As discussed
above, Armendariz does not apply to this case. However, if it did, the fee-sharing
provision would at most be severed, and the remainder of the agreement would still
be enforced. Plaintiff also argues that the agreement waives his right to
statutory attorneys’ fees if he prevails. (See Lab. Code, § 218.5(a).) However,
the agreement states that “the prevailing party as determined by the arbitrator
will be entitled to recover its costs and expenses of arbitration, including
attorneys’ fees and costs.” (Lestanin Decl., Ex. 1, § 19(k)(ii).)
Lastly, the agreement contains a one-sided
review provision allowing only Defendant to “seek a review of the award for
legal error, confirmation, correction, or vacatur in California state court.” (Lestanin
Decl., Ex. 1, § 19(k)(iii).) This provision may be severed.
CONCLUSION
Defendants’ motion to compel
arbitration is GRANTED. The following provision is stricken: “the Company will
have the right to seek a review of the award for legal error, confirmation,
correction or vacatur in California state court.” (Lestanin Decl., Ex. 1, §
19(k)(iii).)