Judge: David S. Cunningham, Case: 23STCV29077, Date: 2024-08-21 Tentative Ruling

Case Number: 23STCV29077    Hearing Date: August 21, 2024    Dept: 11

Ndipagbor (23STCV29077)

 

Tentative Ruling Re: Motion to Compel Arbitration

 

Date:                           8/21/24

Time:                          9:30 am

Moving Party:           Universal Home Care, Inc. (“Defendant”)

Opposing Party:        Kaltume Ndipagbor (“Plaintiff”)

Department:              11

Judge:                         David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

Defendant’s motion to compel arbitration is granted as to Plaintiff’s individual, non-Private Attorneys General Act (“PAGA”) causes of action.

 

Plaintiff’s class, non-PAGA causes of action are stricken.

 

Plaintiff’s PAGA causes of action shall remain in court and will be litigated while the arbitration is pending.

 

BACKGROUND

 

Defendant is a company that provides hospice and home-care services.  Plaintiff used to work for Defendant.  Plaintiff alleges that Defendant subjected her and other current and former employees to numerous wage-and-hour violations.

 

Here, Defendant moves to compel arbitration.

 

DISCUSSION

 

Existence and Assent

 

“[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.4th 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.4th 390, 396, emphasis in original.)

 

The burden of proof rests with the petitioner.  (See Rosenthal, supra, 14 Cal.4th 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.4th 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. Practice Guide: Alternative Dispute Resolution (The Rutter Group December 2023 Update) ¶ 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’s arbitration agreement is attached to the declaration of Roy Eisenberg, Defendant’s operations manager, at exhibit 1.  The agreement states:

 

ARBITRATION

 

In consideration resolution of the of employment-related mutual promises contained in the Agreement, and to provide for an any provision of this Agreement, disputes or controversies arising under or involving employment with Agency, or any issue or dispute or controversy regarding Employee's employment with Agency, or the termination of employment from Agency, Employee and Agency (the “Parties”) agree to arbitrate their disputes under the terms below.

 

Except as provided in issue this section, binding arbitration shall be the exclusive method for resolving any employment-related issue or dispute or controversy between the Parties and both Agency and Employee are giving up any right that each may otherwise have for a civil court action, which would allow a judge or jury to decide any such employment-related issue or dispute or controversy.

 

THE CLAIMS SUBJECT TO THIS PROCEDURE INCLUDE, BUT ARE NOT LIMITED TO, CONTROVERSIES ARISING OUT OF OR RELATING TO: ANY AGREEMENT; ANY POLICY OR CONTRACT; TORTS; OR VIOLATION OF ANY FEDERAL, STATE, OR OTHER GOVERNMENTAL LAW, STATUTE, REGULATION, OR ORDINANCE, INCLUDING, BUT NOT LIMITED TO, WAGE AND HOUR VIOLATIONS, WRONGFUL TERMINATION, HARASSMENT AND DISCRIMINATION OF ANY TYPE; DISCHARGE IN VIOLATION OF PUBLIC POLICY AND/OR VIOLATION OF ANY STATE AND FEDERAL LAWS, INCLUDING WITHOUT LIMITATION, THE AGE BENEFITS PROTECTION ACT, THE FAIR EMPLOYMENT AND HOUSING ACT, AS AMENDED, THE AMERICANS WITH DISABILITIES ACT, TITLE VII OF THE CNIL RIGHTS ACT OF 1964, AS AMENDED, THE FAIR LABOR STANDARDS ACTS, AS AMENDED, THE LABOR MANAGEMENT RELATIONS ACT, AS AMENDED, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT OF 1988, AS AMENDED, THE REHABILITATION ACT O F1973, AS AMENDED, THE EQUAL PAY ACT, THE PREGNANCY DISCRIMINATION ACT, THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, THE FAMILY MEDICAL LEAVE ACT OF 1993, THE CALIFORNIA FAMILY RIGHTS ACT, AS AMENDED AND THE CALIFORNIA LABOR CDE (“Claim” or “Claims”).

 

All Claims brought under this Agreement shall be brought in the individual capacity of Employee or Agency. This agreement to arbitrate shall not be construed to allow or permit Claims to proceed as a class action. No arbitrator to arbitrate shall have the authority under this agreement to arbitrate or order any such class action. By signing this Agreement, Employee and Agency agree to waive any substantive or procedural rights that they may have to bring an action on a class basis.

 

The arbitration shall be conducted under the Federal Arbitration Act, in conformity with the Procedures of the California Arbitration Ac (“the Act”), California Code of Civil Procedure Section 1280, et seq., including Section 1283.05, and all the Act's other mandatory and permissive rights to discovery, except as modified by this agreement.  To the extent applicable in civil actions, the following shall apply and be observed: all rules of pleading (including the right of demurrer), all rights to conduct adequate discovery and depositions, and all rights to resolution of the claims, disputes, defenses and/or controversies, by means of motions for summary judgment or adjudication, and judgment on the pleadings, as provided and governed by applicable law.  Discovery shall be in conformity with the procedures of the California Arbitration Act (Cal. Civ. Proc. Code §1280, et seq., including Section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery applicable to the dispute being arbitrated).  The arbitrator shall be agreed to by both Parties.  If Employee and Agency are unable to agree on a neutral arbitrator, either party may elect to obtain a list of arbitrators from the Judicial Arbitration and Mediation Service (“JAMS”), or ADR Services, Inc. ("ADR"). All members of the panel provided by JAMS or ADR shall be an active or retired judge, or a person with at least ten (10) years' experience in the private practice of law in a law firm of over twenty-five (25) attorneys. The arbitration shall be governed by the employment rules of whichever dispute resolution organization is selected. Copies of the rules may be obtained by contacting the dispute organization directly, or upon request from Agency's Human Resources Department. The arbitrator shall have authority to award all types of civil remedies available within the limitations period applicable to Employee's or Agency's claims. All statutory periods of limitation shall apply.

 

The costs and fees for the arbitrator and for the court reporter, if any, shall be paid by Agency. Employee and Agency shall each bear their own respective costs for legal representation in any arbitration proceeding, provided, however, that the arbitrator shall have the authority to require either party to pay the reasonable attorneys' fees, as provided under federal or state law, in connection with any award.

 

The Parties understand that by agreeing to arbitration, both Employee and Agency give up each of their rights to trial by jury. The Parties further understand that arbitration represents an alternative to a jury trial, and that each is giving up any right that each may otherwise have for a civil court action, which would allow a judge or jury to decide any employment-related issue or dispute or controversy.

 

DO NOT SIGN BELOW UNLESS YOU FULLY UNDERSTAND THIS ARBITRATION AGREEMENT AND AGREE TO BE BOUND BY THIS ARBITRATION AGREEMENT.

 

Read and Understood. Employee hereby acknowledges that he/she has read the above statements under Arbitration, that he/she understands them, and that he/she agrees to these terms.

 

(Eisenberg Decl., Ex. 1, pp. 1-2, emphasis in original.)

 

It is undisputed that Plaintiff signed the agreement on July 24, 2017 (see id. at Ex. 1, p. 2), and assent is uncontested.  (See Opposition, pp. 1-13.)

 

These facts and terms suffice to establish an agreement to arbitrate.

 

Federal Arbitration Act (“FAA”)

 

Concerning the FAA, the agreement’s wording is clear.  It states that “[t]he arbitration shall be conducted under the [FAA] . . . .”  (Eisenberg Decl., Ex. 1, p. 1.)

 

Defendant’s evidence also tends to show that Defendant’s business involves and/or impacts interstate commerce.  (See id. at ¶¶ 4-5.)

 

Enforcement

 

Like assent, enforcement is uncontested.  Plaintiff does not assert that the agreement does not cover her claims or is unconscionable.  (See Opposition, pp. 1-13.)

 

The Court finds the agreement enforceable.

 

Class Claims

 

Defendant contends the agreement requires arbitration on an individual basis and does not permit class claims to be arbitrated.  (See Motion, pp. 2-3, 6.)

 

Plaintiff does not respond.  (See Opposition, pp. 1-13.)

 

The Court agrees with Defendant.  The Court finds that Plaintiff’s class claims should be stricken because the agreement waives class claims (see Eisenberg Decl., Ex. 1, p. 1), and the waiver is enforceable under the FAA.  (See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 359-360 [finding that the FAA preempts “a state’s refusal to enforce [] a [class] waiver on grounds of public policy or unconscionability”].)

 

PAGA

 

Defendant does not appear to seek arbitration of Plaintiff’s PAGA claims, individual or representative.  In fact, Defendant seems to suggest that Plaintiffs’ PAGA claims are exempt from arbitration and do not need to be stayed while the arbitration takes place.  (See Notice, p. 2; see also Motion, pp. 1, 3 n.1.)

 

Plaintiff contends the PAGA claims must remain in court because Defendant failed to request arbitration (see Opposition, pp. 1-2, 4-5), and the agreement’s plain language does not call for them to be arbitrated.  (See id. at pp. 2-4.)

 

Plaintiff also claims the Court has discretion to litigate the PAGA claims during the arbitration’s pendency.  Plaintiff contends the PAGA claims should be litigated now since Defendant failed to request a stay in the notice.  (See id. at pp. 4-11.)

 

The Court agrees with Plaintiff.  Since Defendant does not seek to arbitrate, or stay, the PAGA causes of action, the Court finds that the PAGA claims should remain in court and should be litigated concurrently with the arbitration.