Judge David S. Cunningham, Case 22STCV31762 2023-01-18 Tentative Ruling

Judge: David S. Cunningham, Case: 22STCV31762, Date: 2023-01-18 Tentative Ruling

Defendant’s motion to compel arbitration is granted as to Plaintiff’s individual causes of action.

“Wavestream designs and manufactures next generation solid state power amplifiers for mission-critical satellite communication systems.” (Bustin Decl., ¶ 4.) “Notably, Wavestream is a merchant supplier to the world satellite communications market, selling products nationwide and internationally.” (Ibid.) “Wavestream’s corporate office is located in San Dimas, California.” (Ibid.) “In addition, Wavestream employs employees in Georgia and Florida who are part of Wavestream’s business development team, and those employees travel throughout the United States and internationally performing sales-related activities for the company.” (Ibid.)

Wavestream employed Plaintiff, and he worked out of Wavestream’s San Dimas location. (See id. at ¶ 6.) He “worked as a shipping and receiving clerk” at first. (Ibid.) Then he “began working as a mechanical assembler.” (Ibid.) He “worked as a mechanical assembler until his employment came to an end” in September 2019. (Ibid.)

Plaintiff filed the instant lawsuit on 9/28/22. The complaint asserts “wage and hour” causes of action under the Labor Code and the Unfair Competition Law. Plaintiff seeks to represent a class of Wavestream’s current and former hourly, non-exempt employees.

“[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4^th 394, 413.)

“Under ‘both federal and state law, the threshold question . . . is whether there is an agreement to arbitrate.’” (Cruise v. Kroger Co. (2015) 233 Cal.App.4^th 390, 396, emphasis in original.)

The burden of proof rests with the petitioner. (See Rosenthal, supra, 14 Cal.4^th at 413 [requiring the petitioner to prove the existence of the agreement “by a preponderance of the evidence”].) To meet the burden, “the provisions of the written agreement and the paragraph that provides for arbitration . . . must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.” (Cal. Rules of Court, rule 3.1330; see also Condee v. Longwood Management Corp. (2001) 88 Cal.App.4^th 215, 218 [same].)

“Competent evidence is required to establish both the existence of the arbitration agreement and any ground for denial.” (Knight, et al., Cal. Prac. Guide: Alt. Disp. Res. (The Rutter Group 2021) ¶ 5:321.) “The verified petition (and attached copy of the agreement) normally proves the existence of the arbitration agreement. Affidavits or declarations may be necessary when factual issues are tendered.” (Ibid.)

Defendant hired Plaintiff on 3/5/09. (See Bustin Decl., ¶ 6.) Defendant asserts that, during the onboarding process, Plaintiff signed several employment documents, including an arbitration agreement. (See Opposition, p. 8; see also Bustin Decl., ¶¶ 7-8.)

The “AT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION, INVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT” is the subject document. (Bustin Decl., Exh. 1, p. 1, emphasis in original.) The arbitration provision appears in section 10. (See id. at Exh. 1, § 10, pp. 4-6.)

It states that the parties agree to arbitrate “ALL EMPLOYMENT-RELATED DISPUTES[,]” provides that California law applies, identifies covered claims, and “WAIVE[S] ANY RIGHT TO A TRIALY BY JURY” as to covered claims:

A. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL EMPLOYMENT-RELATED DISPUTES AND MY RECEIPT OF THE COMPENSATION, PAY RAISES AND OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE) ARISING OUT OF, RELATING TO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1280 THROUGH 1294.2, INCLUDING SECTION 1283.05 (THE “RULES”) AND PURSUANT TO CALIFORNIA LAW. DISPUTES WHICH I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, THE FAMILY AND MEDICAL LEAVE ACT, THE CALIFORNIA FAMILY RIGHTS ACT, THE CALIFORNIA LABOR CODE, CLAIMS OF HARASSMENT, DISCRIMINATION OR WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.

It discusses the arbitration rules, arbitrator selection, motion practice, remedies, fees and costs, and the arbitrator’s written award:

B. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) AND THAT THE NEUTRAL ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTEN WITH ITS NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES. I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION AND MOTIONS TO DISMISS AND DEMURRERS, PRIOR TO ANY ARBITRATION HEARING. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES, INCLUDING ATTORNEYS’ FEES AND COSTS, AVAILABLE UNDER APPLICABLE LAW. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR AAA EXCEPT THAT I SHALL PAY THE FIRST $125.00 OF ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION I INITIATE. I AGREE THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND THAT TO THE EXTENT THAT THE AAA’S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES CONFLICT WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. I AGREE THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING.

It stresses that arbitration is the “SOLE, EXCLUSIVE AND FINAL REMEDY FOR ANY DISPUTE”:

C. Remedy. EXCEPT AS PROVIDED BY THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION. NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR SHALL NOT ORDER OR REQUIRE THE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW WHICH THE COMPANY HAS NOT ADOPTED.

It allows the parties to “PETITION A COURT FOR INJUNCTIVE RELIEF” under certain circumstances:

D. Availability of Injunctive Relief. BOTH PARTIES AGREE THAT ANY PARTY MAY PETITION A COURT FOR INJUNCTIVE RELIEF AS PERMITTED BY THE RULES INCLUDING, BUT NOT LIMITED TO, WHERE EITHER PARTY ALLEGES OR CLAIMS A VIOLATION OF THE AT-WILL EMPLOYMENT, CONFIDENTIAL INFORMAITON, INVENTION ASSIGNMENT AND ARBITRATION AGREEMENT BETWEEN ME AND THE COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS, CONFIDENTIAL INFORMATION, NONSOLICITATION OR LABE CODE § 2870. BOTH PARTIES UNDERSTAND THAT ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT WILL CAUSE IRREPARABLE INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY THEREFOR AND BOTH PARTIES HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION. IN THE EVENT EITHER PARTY SEEKS INJUNCTIVE RELIEF, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER REASONABLE COSTS AND ATTORNEYS’ FEES.

It notes that the parties remain free to file administrative claims with administrative agencies:

E. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT PROHIBIT ME FROM PURSUING AN ADMINISTRATIVE CLAIMS WITH A LOCAL, STATE OR FEDERAL ADMINISTRATIVE BODY SUCH AS THE DEPARTMENT OF FAIRE EMPLOYMENT AND HOUSING, THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION OR THE WORKERS’ COMPENSATION BOARD. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING COURT ACTION REGARDING ANY SUCH CLAIM.

F. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE BY THE COMPANY OR ANYONE ELSE. I FURTHER ACKNOWLEDGE AND AGREE THAT I HAVE CAREFULLY READ THIS AGREEMENT AND THAT I HAVE ASKED ANY QUESTIONS NEEDED FOR ME TO UNDERSTAND THE TERMS, CONSEQUENCES AND BINDING EFFECT OF THIS AGREEMENT AND FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY TRIAL. FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF AN ATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.

And there is no dispute that Plaintiff signed the document. (See id. at Exh. 1, p. 7 [showing Plaintiff’s signature and printed name on the signature page].)[1]

These kinds of facts and subsections usually suffice to establish an agreement to arbitrate, but Plaintiff raises an assent issue. The document includes 11 sections on the first six pages. (See id. at Exh. 1, §§ 1-11, pp. 1-6.) To repeat, section 10 contains the arbitration provision. (See id. at Exh. 1, § 10, pp. 4-6.) The signature page is its own page on page seven and follows section 11. (See id. at Exh. 1, p. 7.) Plaintiff contends the motion to compel should be denied because it is unclear from the signature page if Plaintiff is agreeing to all sections or just section 11. (See Opposition, pp. 4-9 [relying on Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4^th 1153, Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5^th 781 and Martinez v. BaronHR, Inc. (2020) 51 Cal.App.5^th 962].)

The Court disagrees. The title – “AT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION, INVENTION ASSIGNMENT, AND ARBITRATION AGREEMENT” – encompasses topics and matters addressed throughout the document, not only in section 11. (Bustin Decl., Exh. 1, p. 1, emphasis in original.) The document also refers to itself as “this Agreement” in multiple sections. (Id. at Exh. 1, § 3.E., p. 3 [“Inventions” section, “Patent and Copyright Registrations” subsection], emphasis in original, § 3.F., p. 3 [“Inventions” section, “Exception to Assignments” subsection], emphasis in original, § 6, p. 4 [“Notification of New Employer” section], emphasis in original, § 9, p. 4 [“Representations” section], emphasis in original, § 10.A., p. 4 [“Arbitration and Equitable Relief” section, “Arbitration” subsection], emphasis in original, § 10.C., p. 5 [“Arbitration and Equitable Relief” section, “Remedy” subsection], emphasis in original, § 10.D., p. 5 [“Arbitration and Equitable Relief” section, “Availability of Injunctive Relief” subsection], emphasis in original, § 10.E., p. 6 [“Arbitration and Equitable Relief” section, “Administrative Relief” subsection], emphasis in original, § 10.F., p. 6 [“Arbitration and Equitable Relief” section, “Voluntary Nature of Agreement” subsection], emphasis in original, § 11.A., p. 6 [“General Provisions” section, “Governing Law: Consent to Personal Jurisdiction” subsection], emphasis in original, § 11.B., p. 6 [“General Provisions” section, “Entire Agreement” subsection], emphasis in original, § 11.C., p. 6 [“General Provisions” section, “Severability” subsection], emphasis in original, § 11.D., p. 6 [“General Provisions” section, “Successors and Assigns” subsection], emphasis original.) Read in context, the plain language demonstrates that the signature page applies to the entire document and, necessarily, section 10. (See also, e.g., Reply, p. 7 [highlighting “I agree” statements in different sections of the document].)

* In Romo, the employee handbook had an arbitration section with a preamble that “identif[ied] ‘this Mutual Agreement to Arbitrate’ as ‘“the Agreement.”’” (Romo, supra, 87 Cal.App.4^th at 1159.) The plaintiff signed a separate section titled “EMPLOYEE ACKNOWLEDGMENT[.]” (Ibid.) That section used the words “‘benefits,’ ‘rules,’ ‘policies,’ and ‘procedures’” and did not mention “‘arbitrate’ and ‘arbitration[.]’” (Ibid.) Additionally, the language of the arbitration section “suggest[ed] that it [was] intended as a complete stand alone agreement” since it contained a subheading titled “Sole and Entire Agreement,” which said “[t]his is the complete agreement of the parties on the subject of arbitration of disputes[.]” (Ibid., emphasis in original.) Plaintiff fails to cite similar language in section 10. (See Reply, pp. 4-5.)

* “The employee handbook” in Esparza provided that it “is not intended to be a contract (express or implied), nor is it intended to otherwise create any legally enforceable obligations on the part of the Company or its employees.” (Esparza, supra, 2 Cal.App.5^th at 783.) “The employee signed a form acknowledging she had received the handbook, which mentioned the arbitration provision as one of the ‘policies, practices, and procedures’ of the company.” (Ibid.) “The acknowledgement form did not state that the employee agreed to the arbitration provision, and expressly recognized that the employee had not read the handbook at the time she signed the form.” (Ibid.) By contrast, section 10 states that Plaintiff is “EXECUTING THIS AGREEMENT VOLUNTARILY[,]” he read it carefully, he is “WAIVING [HIS] RIGHT TO A JURY TRIAL[,]” and he received an opportunity to consult an attorney. (Bustin Decl., Exh. 1, § 10.F., p. 6, emphasis in original; see also Reply, p. 7.)

* In Martinez, “neither party . . . place[d] initials next to a jury waiver contained in the [third paragraph of the arbitration] agreement, even though the drafter included lines for their initials[.]” (Martinez, supra, 51 Cal.App.5^th at 964.) Nevertheless, the Court of Appeal found that the plaintiff assented to arbitration because another paragraph – the certification paragraph – stated that, by signing the agreement, the plaintiff agreed to be bound by all terms, including the arbitration terms, and he signed and dated the agreement. (See id. at 967-968.) Section 10’s language is comparable and supports a finding of assent here. (See id. at 965; see also Bustin Decl., Exh. 1, § 10.F., p. 6; Reply, pp. 7-8.)

Federal Arbitration Act (“FAA”) vs. California Arbitration Act (“CAA”)

Defendant claims the FAA governs because the agreement involves or affects interstate commerce. (See Motion, pp. 9-11.)

Plaintiff argues that the CAA governs because the agreement fails to expressly incorporate the FAA, it states that California law applies, and the alleged conduct – “assembling products that may eventually be sold and shipped to Defendant’s customers outside of California” – “does not amount to ‘interstate commerce.’” (Opposition, p. 2.)

The FAA “provides for enforcement of arbitration provisions in any contract ‘evidencing a transaction involving commerce.’” (Knight, supra, at ¶ 5:50, emphasis in original.) “Involving commerce” is equivalent to “‘affecting commerce’ and ‘signals an intent to exercise Congress’ commerce power to the full.’” (Id. at ¶ 5:50.1, emphasis in original.) “These words mean only that the transaction must turn out, in fact, to involve interstate commerce. I.e., the parties need not have intended any interstate activity when they entered into the contract.” (Id. at ¶ 5:50.2.) “Additionally, the dispute need not arise from the particular part of the transaction involving interstate commerce. The FAA applies if the underlying transaction as a whole involved interstate commerce.” (Ibid., emphasis in original.) It “governs if the underlying contract facilitates interstate commercial transactions or directly or indirectly affects commerce between states.” (Id. at ¶ 5:51, emphasis in original.)

The Court agrees with Defendant. Defendant’s human resources director declares:

4. Because of my position and history with Wavestream, I am knowledgeable regarding the company’s operations. Wavestream designs and manufactures next generation solid state power amplifiers for mission-critical satellite communication systems. Notably, Wavestream is a merchant supplier to the world satellite communications market, selling products nationwide and internationally. Wavestream’s corporate office is located in San Dimas, California. In addition, Wavestream employs employees in Georgia and Florida who are part of Wavestream’s business development team, and those employees travel throughout the United States and internationally performing sales-related activities for the company.

6. Based on my review of Plaintiff’s personnel file, Plaintiff was hired on or around May 5, 2009, and worked out of Wavestream’s location in San Dimas, California. Plaintiff initially worked as a shipping and receiving clerk. However, on or about June 28, 2011, Plaintiff began working as a mechanical assembler. Plaintiff worked as a mechanical assembler until his employment came to an end on or around September 5, 2019. As a mechanical assembler for Wavestream, Plaintiff assembled products that were sold and shipped to Wavestream’s customers located outside of California within the United States and abroad.

(Bustin Decl., ¶¶ 4, 6.) These facts show a sufficient connection to interstate commerce.

Plaintiff’s reliance on section 11’s choice of law provision is unavailing. Section 11 provides that “[t]his Agreement will be governed by the laws of the State of California.” (Id. at Exh. 1, § 11.A., p. 6.) Generally, “a choice of law provision is read to apply to the substantive law of the designated state, but not to include special rules limiting the authority of arbitrators[.]” (Knight, supra, at ¶ 5:70.) The provision “covers the rights and duties of the parties, while the arbitration clause covers arbitration[.]” (Ibid. [quoting Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 63-64].)

Bravo v. RADC Enterprises, Inc. (2019) 33 Cal.App.5^th 920 tends to support this conclusion. The Second District Court of Appeal compelled arbitration despite a California choice of law provision because the agreement mandated arbitration of all wage disputes, and applying California law, namely, Labor Code section 229, which allows arbitration to be disregarded as to wage claims, would have “contradict[ed] the parties’ intent to arbitrate” those claims. (Bravo, supra, 33 Cal.App.5^th at 923.) Similarly, granting Plaintiff leave to amend to assert a section 229 cause of action (see Opposition, pp. 12-13) would contradict his intent to arbitrate “ANY” Labor Code claim: “DISPUTES WHICH I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER . . . THE CALIFORNIA LABOR CODE[.]” (Bustin Decl., Exh. 1, § 10.A., p. 4, emphasis in original.)

Plaintiff cites Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4^th 1258 and Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford University (1989) 489 U.S. 468 (see Opposition, pp. 2-3), but the Second District distinguished them. (See Bravo, supra, 33 Cal.App.5^th at 923 [reasoning that (1) Mastick and Volt involved Code of Civil Procedure section 1281.2(c), (2) section 1281.2(c) “permits a court to refuse to enforce an arbitration agreement or stay arbitration pending resolution of related litigation between a party to the arbitration agreement and third parties not bound by it, where there is a possibility of conflicting rulings on a common issue of law or fact[,]” (3) like here, there were no third parties in Bravo, and (4) “[c]ases dealing with this third-party statute do not apply where there are no third parties”], emphasis added.)

Section 10 states that covered claims “SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1280 THROUGH 1294.2, INCLUDING SECTION 1283.05 . . . AND PURSUANT TO CALIFORNIA LAW.” (Bustin Decl., Exh. 1, § 10.A., p. 4, emphasis in original.) Section 1280 et seq. is the CAA. (See Knight, supra, at ¶ 5:45.)

Notwithstanding this language, the Court finds Bravo analogous. The Court is inclined to follow Bravo – and find the FAA controlling – since, again, a section 229 cause of action would be incompatible with Plaintiff’s intent to arbitrate “ANY” Labor Code claim. (Bustin Decl., Ex. 1, § 10.A., p. 4, emphasis in original.)

“‘[U]nconscionability has both a “procedural” and a “substantive” element,’ the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) “The prevailing view is that [procedural 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.” (Ibid.) “But they need not be present in the same degree.” (Ibid.) “Essentially a sliding scale is invoked 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.” (Ibid.) “In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Ibid.)

Plaintiff claims the agreement is procedurally unconscionable because it is a contract of adhesion. (See Opposition, pp. 10-11.)

“[A] predispute arbitration agreement is not invalid merely because it is imposed as a condition of employment.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1122–1123.) “[T]he mandatory nature of an arbitration agreement does not, by itself, render the agreement unenforceable.” (Ibid.; see also Knight, supra, at ¶ 5:146 [“The mere fact an adhesion contract is involved does not per se render the arbitration clause unenforceable. Rationale: Such contracts are ‘an inevitable fact of life for all citizens – businessman and consumer alike.’”], emphasis in original.)

Regardless, the evidence – the agreement’s plain language – belies Plaintiff’s argument:

[T]he agreement does not explain how to initiate arbitration. The agreement makes no mention of the statute of limitations to bring the covered claims. Further, the arbitration agreement is substantively unconscionable because it does not provide for equal protections as would be afforded to Plaintiff in a judicial forum. For instance, the arbitration agreement notes the arbitration shall have the power to decide any motions brought by any party but does not indicate that Plaintiff can engage in discovery related to his claims. Moreover, the agreement fails to provide that decisions of the arbitrator would be final and binding, as they would in a court of law. As such, the arbitration agreement is substantively unconscionable.

Plaintiff’s showing is inadequate. The agreement incorporates the AAA rules. (See Bustin Decl., Exh. 1, § 10.B., p. 5.) They address initiation and discovery and make the arbitrator’s award “final and binding.” (Defendant’s RJN, Exh. 1, pp. § 4, pp. 11-12, § 9, p. 14, § 39.g., p. 24.) Further, Plaintiff fails to cite authority requiring limitations periods to be listed. (See Reply, p. 9.)

The Court finds the agreement enforceable and grants motion to compel as to Plaintiff’s individual claims.

Defendant asks the Court to dismiss the class claims. (See Motion, p. 19 [asserting that the agreement lacks terms showing “consent to arbitration on a representative basis”].)

Defendant’s request is denied. The agreement does not contain a class waiver, it is silent on the issue of class arbitration, and neither side requests class arbitration.

At the hearing, the Court anticipates giving the attorneys an opportunity to discuss the issue of leave to find a new putative class representative.

[1] Plaintiff did not file a declaration contesting the signature. (See, e.g., Reply, pp. 6-7 [“Plaintiff concedes that he signed the document containing the Arbitration Agreement [citation] and offers no evidence that he did not agree to arbitrate, did not know what he was signing, that the Arbitration Agreement was hidden or a surprise, that Plaintiff felt coerced or forced to sign it, that the Arbitration Agreement was not explained to Plaintiff, that Plaintiff did not have a chance to review it before signing it, or that Plaintiff did not have a chance to consult with an attorney before signing it.”].)