Judge: Gail Killefer, Case: 24STCV19705, Date: 2025-01-09 Tentative Ruling
Case Number: 24STCV19705 Hearing Date: January 9, 2025 Dept: 37
HEARING DATE: Thursday, January 9, 2025
CASE NUMBER: 24STCV19705
CASE NAME: Maria Flores Sanchez v. Kens
Spray Equipment, LLC, et al.
MOVING PARTY: Defendants KENS Spray
Equipment, LLC; Lilan Vaughan; and Norma Ferrera
OPPOSING PARTY: Plaintiff Maria Flores Sanchez
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Motion to Compel
Arbitration
OPPOSITION: 28 October 2024
SUPP. OPPOSITION: 26 December 2024
REPLY: 31 December
2024
SUPP. REPLY: 02 January 2025
TENTATIVE: Defendants’ Motion to Compel Arbitration is
granted. The action is stayed pending arbitration. The Court sets an OSC Re:
Status of Arbitration for January 9, 2026, at 8:30 a.m. Defendants to give notice.
Background
On August 6, 2024, Maria Flores Sanchez
(“Plaintiff”) filed a Complaint against Kens Spray Equipment, LLC, Lillian Doe,
Norma Ferrera (collectively “Defendants”), and Does 1 to 50.
The Complaint alleges nine causes of
action:
1)
Disability
Discrimination in Violation of California Government Code § 12940(a);
2)
Failure
to Accommodate Disability in Violation of California Government Code §
12940(m);
3)
Failure
to Engage in the Interactive Process in Violation of California Government Code
§ 12940(n);
4)
Retaliation
in Violation of FEHA;
5)
Failure
to Prevent Harassment, Discrimination or Retaliation in Violation of California
Government Code § 12940(k);
6)
Whistleblower
Retaliation in Violation of California Labor Code § 98.6;
7)
Whistleblower
Retaliation in Violation of California Labor Code § 1102.5;
8)
Whistleblower
Retaliation in Violation of California Labor Code § 6310; and
9)
Wrongful
Termination in Violation of Public Policy.
Defendants now move to compel arbitration
of Plaintiff’s action and dismiss the action. Plaintiff opposes the Motion.
On October 29, 2024, the court gave the
parties leave to take the depositions regarding the validity of the Plaintiff's
signature on the arbitration agreement. The hearing was continued and the
matter is now before the court.
I. Legal Standard
“California law reflects a strong public policy in favor of
arbitration as a relatively quick and inexpensive method for resolving
disputes.¿ To further that policy, Code of Civil Procedure, section 1281.2
requires a trial court to enforce a written arbitration agreement unless one of
three limited exceptions applies.¿ Those statutory exceptions arise where (1) a
party waives the right to arbitration; (2) grounds exist for revoking the
arbitration agreement; and (3) pending litigation with a third party creates
the possibility of conflicting rulings on common factual or legal¿ issues.”¿
(CCP, § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213
Cal.App.4th 959, 967.)¿ Similarly, public policy under federal law favors
arbitration and the fundamental principle that arbitration is a matter of
contract and that courts must place arbitration agreements on an equal footing
with other contracts and enforce them according to their terms.¿ (AT&T
Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)¿¿¿¿
¿¿¿
In deciding a motion or petition to compel arbitration,
trial courts must first decide whether an enforceable arbitration agreement
exists between the parties and then determine whether the claims are covered
within the scope of the agreement.¿(Omar v. Ralphs Grocery Co. (2004)
118 Cal.App.4th 955, 961.)¿ The opposing party has the burden to establish any
defense to enforcement.¿ (Gatton v. T-Mobile USA, Inc. (2007) 152
Cal.App.4th 571, 579 [“The petitioner ... bears the burden of proving the
existence of a valid arbitration agreement and the opposing party, plaintiffs
here, bears the burden of proving any fact necessary to its defense.”].)¿¿
II. Evidentiary Objections
Plaintiff’s
single objection to the Declaration of Maria Perea is overruled. Maria Perea’s
deposition shows she has personal knowledge of the facts she attests to in her
declaration.
III. Discussion
A. Existence of an Agreement to Arbitrate
“The petitioner
bears the burden of proving the existence of a valid arbitration agreement by
the preponderance of the evidence, and a party opposing the petition bears the
burden of proving by a preponderance of the evidence any fact necessary to its
defense. In these summary proceedings, the trial court sits as a trier of fact,
weighing all the affidavits, declarations, and other documentary evidence, as
well as oral testimony received at the court’s discretion, to reach a final
determination. No jury trial is available for a petition to compel
arbitration.” (Engalla v. Permanente Medical Group, Inc. (1997) 15
Cal.4th 951, 972 [Citations Omitted].)¿
Defendants assert that it has a Dispute Resolution Policy (“DRP”)
that Plaintiff signed as part of her onboarding process.
The Parties do not dispute that the DRP states, in pertinent part,
as follows:
Your
acceptance of or continuing employment with the Company constitutes acceptance
of this Dispute Resolution Policy, meaning you and the Company mutually agree
to resolve in binding arbitration any claim that, in the absence of this
Policy, would be resolved in a court under applicable state or federal law.
[
. . . ]
Claims
Subject to Arbitration
This
Policy specifically includes (without limitation) all claims under or relating
to any federal, state or local law . . . including claims for discrimination,
harassment or retaliation based on race, color, religion, national origin, sex,
sexual orientation, gender identity, age, disability, medical condition,
marital status or any other condition or characteristic protected by law . . .
Procedure
This
Policy is governed by the Federal Arbitration Act and evidences a transaction
involving interstate commerce. Any arbitration will be administered by Judicial
Arbitration & Mediation Services, Inc. (“JAMS”), pursuant to its Employment
Arbitration Rules & Procedures then in effect (the “JAMS Rules”), which are
available at http://www.jamsadr.com/rules-employment-arbitration/, and subject
to JAMS Policy on Employment Arbitration Minimum Standards of Procedural
Fairness. You may also obtain a copy of the JAMS Rules from Human Resources.
Any claim submitted to arbitration shall be decided by a single, neutral
arbitrator, chosen according to JAMS Rules. . .
Reformation
and Severability
If
any terms or sections of this Policy are determined to be unenforceable, they
shall be automatically adjusted to the minimum extent necessary so that the
unenforceable term or section is enforceable to the greatest extent possible.
Opt Out Rights
You
may voluntarily opt out of this Policy within 30 days after signing the
acknowledgment below, provided you follow the procedures in this paragraph. If
you do not sign the acknowledgment below, the 30-day opt out period will begin
on the date you receive notice of the Policy. In order to opt out of this
Policy, you must email the Human Resources Department at mperea@pccairframe.com
and request the Opt Out Form. You must complete and sign the Opt Out Form and
email it or return it to the Human Resources Department all within 30 days of
the date that you sign this acknowledgment below, or if you do not sign this
acknowledgement, within 30 days of your notice of this Policy. If you do not
opt out in a timely manner following these procedures, you and the Company will
be deemed to have mutually accepted the terms of this Policy. An employee who
decides to opt out as provided in this paragraph will not be subject to any
adverse employment action as a consequence of that decision and may pursue
available legal remedies without regard to the Policy . . .
Entire
Policy
[
. . . ]
PLEASE READ THIS POLICY CAREFULLY. BY CONTINUING EMPLOYMENT WITH
THE COMPANY WITHOUT OPTING OUT OF THE POLICY, YOU ARE AGREEING TO FINAL AND BINDING ARBITRATION OF ANY AND ALL
DISPUTES BETWEEN YOU AND THE COMPANY INCLUDING WITHOUT LIMITATION, DISPUTES
RELATED TO YOUR EMPLOYMENT WITH THE COMPANY AND TERMINATION THEREOF, AND ANY
CLAIMS OF DISCRIMINATION AND HARASSMENT.
The DRP contains two purported signatures, one is a
lower case signature with the printed name “maria d flores sanchez” dated
“6-5-22” and another wet signature in block letters with Plaintiff’s name dated
“6-20-2022.” (Perea Decl., Ex. A.)
Plaintiff
filed her first opposition was filed on September 30, 2024, wherein she
asserted that the signature of the DRP was not hers and that she was never
presented with the DRP. (Flores Sanchez Decl., ¶¶ 9-13.)
Defendants
subsequently filed an ex parte seeking leave to depose Plaintiff’s in
regard to the DRP. On October 29, 2024, the court granted Defendants’ ex
parte and also gave Plaintiff leave to take the deposition of Maria Perea,
Defendants’ Human Resources Manager and the person who
purportedly gave Plaintiff the DRP. (Order 10/29/2024; Perea Decl., ¶ 1.) The
hearing on the Motion to Compel Arbitration was continued. Depositions have now
been completed.
i. Authentication of
Plaintiff’s Signature
On
December 26, 2024, Plaintiff filed a supplemental opposition contending that
Perea testified that she did not provide Plaintiff with the DRP. (Candiottiotti
Decl., ¶ 4, Ex. A [Perea Depo. at p. 52. 8-10.) Plaintiff also contends that at
her deposition she testified that she did not sign the DRP. (Id. Decl. ¶
3, Ex. B [Flores Sanchez Depo. at p. 44:14-21.)
While
Perea initially stated that she did not provide Plaintiff with a copy of the
DRP on June 20, 2022, she clarified that the DRP was presented as part of the
pre-boarding documents, on June 4, 2022. (Perea Depo. at p. 54:8-15.) Plaintiff
does not dispute that Perea emailed Plaintiff on June 4, 2022, with several
preboarding documents, including the DRP. (Archibald Decl., ¶ 2, Ex. 6, 7; Ex.
A [Flores Sanchez Depo. at pp. 20:16-22:8].)
Perea’s
June 4, 2022 email specifically stated: “Attached are the forms that need to be
completed and signed and sent back to me ASAP.” (Archibald Decl., ¶ 2, Ex. 6.)
Plaintiff confirmed that on June 5, 2022 she emailed Perea back with the
attached documents, including a document titled “13.2- Arbitration
Agreement_New Employee - Alloy Processing- email as prehire.pdf” (Archibald
Decl. ¶ 2, Ex. 7 at p. KENS00044-KENS00046; Flores Sanchez Depo. at pp.
22:10-23:8.)
Plaintiff
does not dispute that the attached documents were signed on June 5, 2022 with blocked
typed letters “maria d. flores sanchez” and typed the date typed as “6-5-22.”
(Flores Sanchez Depo. at pp. 23:13-25:6.) This included the DRP bearing the
BATES Number KENS00046:
Q: Okay. And the next document's the dispute
resolution policy. Going to page Ken's 00046. Did you type the name “Maria D.
Flores Sanchez” below where it says “employee”?
A:
Yes.
Q:
And did you type 6-5-22 to the
right of where it says “dated”?
A:
Yes.
(Flores
Sanchez Depo. at pp. 24:24-25:6.)
Perea
testified that on June 20, 2022, during the onboarding process, she realized
that the DRP did not have a wet signature:
A: [ . . .] So on the
day of the onboarding, I told her that I need to have a wet signature because
she already had signed it.
She -- well, she
didn't sign it. She typed her name and it was a date. So we need to have some
sort of wet signature. So on the -- on her – on her onboarding day on the 20th,
I present it to her so that she can sign.
(Perea
Depo. at p. 53: 18-54:2.)
Perea
further testified that on June 20, 2022, she witnessed Plaintiff print her name
“Maria D. Flores”:
Q: In print; right?
A: Mm-hmm.
Q: As opposed to cursive?
A: That could have been her signature. She
signed -- she print this or signed it with -- with me present.
Q:
Okay. So you were present when she
wrote her name here?
A: Yes.
(Perea
Depo. at pp. 58:24-59:7; see also p. 60:13-21.)
Plaintiff
confirmed that on June 20, 2022, she wrote her name below her typed name on the
DRP, identified as KENS00146:
Q:
“Okay. And then on Ken's 00146, did
you write your name below where your name is typed, “Maria D. Flores Sanchez”?
A:
Yes.
(Flores
Sanchez Depo. at p. 39:14-21.)
Plaintiff
also confirmed that Perea was present when she signed the onboarding documents,
including the DRP, on June 20, 2022:
Q:
Okay. Was there anyone there with
you when you were reviewing them?
A:
Maria. She gave them to me and she
told me if you need -- if you have any questions, go ahead and, you know, let
me know so I will go help you out.
Q: Did she explain any of the documents to
you?
A:
No.· I was reading them by myself.
(Flores
Sanchez Depo. at p. 43:1-8.)
Perea sufficiently
testified that she saw Plaintiff sign with block letters her name on the DRP on
June 20, 2022. (Perea Depo. at pp. 58:24-59:7; p. 60:13-21.) Plaintiff did not
dispute that she signed the DRP with block letters and that Maria was present
when she signed it. (Flores Sanchez Depo. at pp. 39:14-21; 43:1-8.)
Accordingly, the court finds that Defendants have produced sufficient evidence
to sustain the finding that Plaintiff signed and reviewed the DRP. (Evid. Code,
§§ 1400, 1401.)
B. Notice of DRP Being a Condition of Employment
The record before the court also establishes that Plaintiff knew
that agreeing to arbitration was a condition of employment. Plaintiff does not
dispute that on or about June 3, 2024, Perea sent her an email containing an
offer letter (the “Offer Letter”) which Plaintiff was required to sign to
accept Defendants’ offer of employment. (Flores-Sanchez Decl., ¶ 9, Ex. A.) At
her deposition, Plaintiff authenticated the email and the attached offer letter
and testified that she signed it. (Archibald Decl., ¶ 2, Ex. 4-5; Ex. A [Flores
Sanchez Depo. at pp. 18:2-20:8].) Plaintiff also confirmed that she read the
offer letter:
Q: When you received the
offer letter, did you read it?
A: Yes, I did.
(Flores Sanchez Depo. at p. 18: 8-10.)
The Offer Letter states, in relevant part, as follows:
Employment
Offer Contingencies
Our
offer is contingent upon each of the following:
[
. . . ]
·
Dispute Resolution Policy
As
part of the Company’s practice to fully engage the workforce in efficient,
mutual and objective dispute resolution and as part of the onboarding process,
you will be asked to review and accept the terms and conditions of a Dispute
Resolution Policy. This Policy is an extension of the Company’s open door
philosophy and both you and the Company will benefit from participation in this
program. You will be provided additional documentation which outlines the terms
and conditions of this Policy. . .
(Archibald Decl. Ex. 4-5.)
As Plaintiff does not dispute that she signed and read the Offer
Letter on June 6, 2022, there is no dispute that Plaintiff was aware and agreed
to the condition that reviewing and accepting the DRP was a condition of
employment. In Cisneros Alvarez v. Altamed Health Services Corporation (2021)
60 Cal.App.5th 572, the appellate court found the plaintiff had agreed to
arbitration when she accepted and signed the job offer letter, which expressly
stated that arbitration was a condition of employment. (Id. at p. 584.)
The court finds that Plaintiff knew that agreeing to arbitration
was a condition of employment and she agreed to be bound by the DRP when she
signed the Offer Letter.
Accordingly, Defendants have met their burden of showing that an arbitration
agreement exists between the Parties.
Moreover, the evidence supports the findings that Plaintiff was
aware of the DRP Policy and the Opt-Out provision. The facts above also support
the finding that Plaintiff was given the opportunity to read and review the DRP
on June 5, 2022, and June 20, 2022.
C. The Validity of
Arbitration Provision and Claims of Unconscionability
Plaintiff argues that the arbitration provision is unconscionable.
“The burden of proving unconscionability rests upon the party asserting it.” (OTO,
L.L.C. v. Kho (2019) 8 Cal.5th 111, 126.) “[B]oth elements must be present
before a contract or contract provision is rendered unenforceable on grounds of
unconscionability.” (Id.) The doctrine of unconscionability refers to
“an absence of meaningful choice on the part of one of the parties together
with contract terms which are unreasonably favorable to the other party.” (Sonic-Calabasas
A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) It consists of procedural
and substantive components, “the former focusing on oppression or surprise due
to unequal bargaining power, the latter on overly harsh or one-sided results.”
(Id.)
i. No Evidence of “Repeat Player Effect”
Plaintiff asserts that DRP is unenforceable because the matter
will not be decided by a neutral arbitrator due to Defendants being a “Repeat
Player” before the Judicial Arbitration & Mediation Services, Inc.
(“JAMS”).
The
fact an employer repeatedly appears before the same group of arbitrators
conveys distinct advantages over the individual employee. These advantages
include knowledge of the arbitrators' temperaments, procedural preferences,
styles and the like and the arbitrators' cultivation of further business by
taking a “split the difference” approach to damages.
(Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 178 (Mercuro).)
However, the Mercuro Court acknowledged that “[w]hile our Supreme Court
has taken notice of the ‘repeat player effect,’ the court has never declared
this factor renders the arbitration agreement unconscionable per se.” (Id.
at p. 178.)
In McManus v. CIBC World Markets Corp. (2003) 109
Cal.App.4th 76, the appellate court explained that the arbitration agreement in
Mercuro was substantively unconscionable because “under procedures by
the National Arbitration Forum, eight such arbitrators were eligible to serve
as arbitrators within the applicable rules” and “the arbitrator was selected by
the National Arbitration Forum and the employee was not permitted to
participate in the selection process. (McManus v. CIBC World Markets Corp.
(2003) 109 Cal.App.4th 76, 94 citing Mercuro, supra, 109
Cal.App.4th at pp. 178-179.)
Here, Plaintiff fails to show that under the JAMS rules, the
arbitration rules would entail a “repeat player effect” and that Plaintiff
cannot select the arbitrator. (McManus, supra, 109 Cal.App.4th at
p. 94.) “[M]erely raising the ‘repeat player effect’ claim, without presenting
more particularized evidence demonstrating impartiality, is insufficient under
California law to support an unconscionability finding.” (Nagrampa v.
MailCoups, Inc. (9th Cir. 2006) 469 F.3d 1257, 1285.)
Accordingly, the fact that Defendants have selected JAMS as the
arbitration forum is not by itself evidence of substantial unconscionability.
ii. JAMS Discovery
Rules
Plaintiff contends there is substantive unconscionability because
the JAMS rules do not provide for adequate discovery but fails to cite which
specific JAMS rules limit discovery. Defendants
point out that federal District Courts have found that the JAMS rules provide
adequate opportunity to conduct discovery. “The JAMS discovery limits are ‘more
than minimal’ and sufficient to meet Armendariz.” (Pope v. Sonatype,
Inc. (N.D. Cal., May 8, 2015, No. 5:15-CV-00956-RMW) 2015 WL 2174033, at
*5.) “The court concludes that, like the AAA rules, JAMS' rules provide
adequate discovery for employees seeking to vindicate their statutory rights.”
(Saline v. Northrop Grumman Corporation (C.D. Cal., Feb. 9, 2009, No.
CV08-08398 MMM (EX)) 2009 WL 10674037, at *6; see also Chau v. EMC
Corporation (N.D. Cal., Feb. 28, 2014, No. C-13-04806-RMW) 2014 WL 842579,
at *5 [accord]; Sanchez v. Gruma Corporation (N.D. Cal., Apr. 9, 2019,
No. 19-CV-00794-WHO) 2019 WL 1545186, at *8 [accord].)
In Hasty v. American Automobile Assn. etc. (2023) 98
Cal.App.5th 1041, the court found that there was substantive unconscionability
because the hyperlink in the arbitration agreement did not work, making it
“unclear how an employee would know what terms he, she, or they were agreeing
to at the time of signing the agreement when the rules and procedures may be
different when a dispute arises in the future.” (Id. at p. 1061.) Here,
the hyperlink referenced in the DRP, https://www.jamsadr.com/rules-employment-arbitration/, works and directs Plaintiff’s to JAMS arbitration rules
applicable to employment disputes. Consequently, Plaintiff fails to show that
the JAMS rules provide for inadequate discovery or limit Plaintiff’s remedies.
iii. Failure to Attache
Rules
Plaintiff argues that the Defendants’ failure to attach the JAMS
rules is evidence of procedural unconscionability. “[W]e find the failure to
attach the [arbitration] rules, standing alone, is insufficient grounds to
support a finding of procedural unconscionability.” (Peng v. First Republic
Bank (2013) 219 Cal. App. 4th 1462, 1472; see also Bigler v. Harker
School (2013) 213 Cal. App. 4th 727, 737 [failure to attach incorporated
arbitration rules “is of minor significance” to procedural unconscionability]; Lane
v. Francis Capital Mgmt. LLC (2014) 224 Cal. App. 4th 676, 691 (2014)
[holding the employer’s “failure to attach a copy of the AAA rules did not
render the agreement procedurally unconscionable”].)
The fact that JAMS Rules are referenced and direct Plaintiff to
where she may find the rules supports that finding that there is no procedural
unconscionability due to failure to attach the JAMS rules to the DRP.
iv. No Class Action Waiver
Plaintiff argues the DRP is unenforceable because it waives the
consolidation of claims of two or more individuals. However, the DRP does not
waive those rights and instead provides that a court, rather than the
arbitrator, will determine those claims:
However,
only a court of competent jurisdiction may determine any disputes about the
enforceability of the class, collective or representative action waiver.
(Perea Decl., Ex. A at p. 2.)
Accordingly, there is no merit to the claim that DRP seeks to
waive Plaintiff’s right to seek a class, collective, or representative action.
v. No Sexual Assault or Sexual Harassment
Dispute
“The Ending Forced
Arbitration of Sexual Assault and Sexual
Harassment Act of 2021 (“EFAA”), which President Biden signed on March 3, 2022,
amended the Federal Arbitration Act (“FAA”) to prohibit the enforcement of otherwise
enforceable arbitration agreements for
claims arising from sexual harassment. 9 U.S.C. § 402(a).” (Turner v. Tesla,
Inc. (N.D. Cal. 2023) 686 F.Supp.3d 917, 920–921.) The EFAA “shall apply with respect to any dispute or claim that arises
or accrues on or after the date of enactment of this Act.” (Pub.L. No 117-90,
March 3, 2022, 136 Stat 28, reprinted in notes foll. 9 U.S.C. § 401.)
Plaintiff argues the DRP is not enforceable because it applies to
sexual harassment disputes in violation of the EFAA. However, the EFAA only applies to claims that
arise from a sexual harassment dispute, and Plaintiff's Complaint does not
allege a sexual harassment dispute. (See Sader v. Southern California
Medical Center, Inc. (2024) 99 Cal.App.5th 214, 223.) Therefore, the court
agrees the EFAA is inapplicable.
The court finds that Plaintiff has failed to show that the DRP
contains both substantive and procedural unconscionability. The court grants
Defendants’ Motions.
Conclusion
Defendants’ Motion to Compel
Arbitration is granted. The action is stayed pending arbitration.
The Court sets an OSC Re: Status of Arbitration
for January 9, 2026, at 8:30 a.m.
Defendants to
give notice.