Judge: Frank M. Tavelman, Case: 22BBCV00450, Date: 2022-09-02 Tentative Ruling

Case Number: 22BBCV00450    Hearing Date: September 2, 2022    Dept: A

ALLEGATIONS:

Elizabeth Amador ("Plaintiff") filed suit against Defendant M S International, Inc., an Indiana Corporation ("Defendant") on June 21, 2022, alleging a single cause of action for violation of PAGA.

HISTORY:

The Court received the Motion to Compel Arbitration filed by Defendant on August 11, 2022; the opposition filed by Plaintiff on August 22, 2022; and the reply filed by Defendant on August 26, 2022.

RELIEF REQUESTED:

Defendant moves to compel Plaintiff to arbitrate her individual claims in the instant action.

ANALYSIS:

I.          LEGAL STANDARD

The party seeking to compel arbitration first bears the burden of proving by a preponderance of the evidence the existence of a valid and enforceable arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) If the court determines the arbitration agreement exists, the burden shifts to the respondents to prove the falsity of the purported agreement. (Ibid.) Under California law, the court has authority to compel arbitration pursuant to CCP § 1281.2 where a written agreement for such arbitration exists and one of the parties refuses to arbitrate. Specifically, the statute provides 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 thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement arbitrate the controversy exists.”

II.        REQUESTS FOR JUDICIAL NOTICE

A.    Plaintiff’s Request for Judicial Notice

Plaintiff requests the Court take judicial notice of nine cases. Despite the objections from the moving party, the Court will take judicial notice of Exhibits A through I pursuant to Evidence Code §452.   The Court agrees with the Moving Party, that these Trial Court Orders are not binding on this Court; however, they are not “unpublished” appellate rulings for which any reference is inconsistent to the Rules of Court.

B.     Defendant’s Request for Judicial Notice

Defendant requests the Court take judicial notice of the United States Supreme Court’s docket entry denying the petition for rehearing for Viking River Cruises and a Ninth Circuit order granting rehearing and withdrawal of opinion and dissent for Chamber of Com. Of United States. The Court takes judicial notice of Exhibits 1 and 2 for the same reason laid out in Plaintiff’s request.

III.       MERITS

Defendant argues that Plaintiff signed a mutual binding arbitration agreement for employment-related disputes on November 30, 2017. (Decl. Courneen, ¶ 5, Ex. A.) In reviewing the submitted evidence, including a copy of the arbitration agreement, the Court finds that Defendant has proven by a preponderance of the evidence the existence of a valid and enforceable arbitration agreement. Furthermore, that agreement governs the claims underlying the instant action. The burden thus shifts to Plaintiff.

In opposition, Plaintiff argues that that arbitration agreement is invalid because she did not voluntarily agree to arbitration (Decl. Amador, ¶¶ 2-5); and that mandatory arbitration agreements are unenforceable in California pursuant to Labor Code § 432.6, passed on October 10, 2019. Plaintiff also argues that even if the Court were to compel arbitration of the individual PAGA claims, the non-individual PAGA claims should not be subject to arbitration.

In reply, Defendant argues that Labor Code § 432.6, which prohibits an employer from, among other actions, requiring or a party to waive any right, forum, or procedure of any provision of FEHA, or otherwise conditioning employment on such waiver, applies only to contracts after January 1, 2020, and so is inapplicable here.

Labor Code § 432.6 provides, in relevant part:

(a) A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) or this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation. (b) An employer shall not threaten, retaliate or discriminate against, or terminate any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.

. . .

(h) This section applies to contracts for employment entered into, modified, or extended on or after January 1, 2020.

(Lab. Code § 432.6.)

Both parties assert that Plaintiff signed the arbitration agreement on November 30, 2017. Plaintiff’s only argument cites to Labor Code § 432.6, which applies only to employment contracts entered into, modified, or extended on or after January 1, 2020. Plaintiff does not assert that the arbitration agreement was modified or extended on or after January 1, 2020. In fact, Plaintiff appeared to overlook any discussion or disclosure of the limitations in § 432.6(h), and it was only the Defendant that raised the issue.  The Court will presume this lack of candor, mandated by the Rules of Professional Conduct Rule 3.3(a)(2), was simply an oversight on behalf of Plaintiff.

Plaintiff next claims that any putative agreement to arbitration was not voluntary.  Plaintiff argues that she simply signed a “stack of new-hire paperwork” and she was simply told where to sign without explanation.  (Decl. of Amador ¶2).  Plaintiff further states that she has “no recollection of what documents I signed or what they were about.”  Ibid.  Typically, when a person with the capacity of reading and understanding an agreement signs it, she may not, in the absence of fraud, imposition or excusable neglect, avoid its terms on the ground he failed to read it before signing it. In re Marriage of Hill & Dittmer (2011) 202 Cal. App. 4^th 1046, 1055.).  Furthermore, Plaintiff’s argument that she was given a stack of documents to sign without explanation and that she had to sign all the documents because nobody said she had a choice are somewhat inconsistent.  (Decl. of Amador ¶2 and ¶5).   How would Plaintiff even know she did not have a choice unless she was aware of the arbitration agreement and inquired?  She simply offers that “Nobody said it was a choice” to conclude she had none.  The Court does not find this to meet the burden placed on the Plaintiff to avoid enforcement of the arbitration agreement. 

As to whether Plaintiff’s non-individual claims may be subject to arbitration was not raised in the moving papers but will be addressed.  To compel arbitration of representative claims under the Labor Code Private Attorneys General Act of 2004 (“PAGA”) a defendant must establish (1) the arbitration provisions are worded broadly enough to encompass the PAGA representative claims and (2) the arbitration agreement is enforceable as to PAGA claims which was not signed or otherwise adopted on behalf of the state.  (Herrera v. Doctors Medical Center of Modesto, Inc. (2021) 67 Cal. App. 5^th 538, 548.)  In reviewing the arbitration agreement, the Court finds that the agreement is not enforceable against the state, and as such the representative claim is not eligible for mandatory arbitration.

Defendant requests this Court to dismiss the representative PAGA claim citing to Viking River Cruises, Inc. V. Moriania in which the United States Supreme Court discussed that viability of a representative PAGA action when the individual action has been separated.   The United States Supreme Court opines that it does not survive.   This Court finds Plaintiff’s argument persuasive and dismisses the remaining cause of action without prejudice.

The Court thus finds that Plaintiff does not meet her subsequent burden to show why the arbitration agreement should not be enforced.

IV.       CONCLUSION

The Court grants the instant motion.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant M S International, Inc.’s Motion to Compel Arbitration came on regularly for hearing on September 2, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO COMPEL ARBITRATION IS GRANTED.  THE MOTION TO DISMISS THE REMAINING REPRESENTATIVE CLAIM IS LIKEWISE GRANTED, WITHOUT PREJUDICE.

IT IS SO ORDERED.

DATE:  September 2, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles