Judge Joel R Wohlfeil, Case Number: 37-2023-00042734-CU-OE-CTL, Date: 2024-06-27 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2023-00042734-CU-OE-CTL, Date: 2024-06-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 24, 2024

06/27/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Other employment Motion Hearing (Civil) 37-2023-00042734-CU-OE-CTL AQUINO VS ACTIVE CARE LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 04/24/2024

The Motion (ROA # 23, 32) of Defendant ACTIVCARE LIVING, INC. ('Defendant' or 'ActivCare') for an order compelling Plaintiff JGERALD AQUINO ('Plaintiff') to arbitrate his individual claim, and for a stay of Plaintiff's representative PAGA claim, is DENIED.

This ruling is based on the analysis set forth below.

Plaintiff's evidentiary objections (ROA # 34) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are OVERRULED except as follows: nos. 6, 7 and 8 are SUSTAINED.

Federal Arbitration Act Controls The subject arbitration agreement includes the following: 'All disputes, controversies, or claims between Employee and Employer, ... including but not limited to the construction or application of the terms of this Agreement, shall be resolved by binding arbitration governed by the Federal Arbitration Act, in accordance with the substantive laws of the State of California for agreements made and to be performed in California ....' According to this express language, the FAA controls, so long as it is in accord with, and does not conflict with California substantive law. In accordance with choice-of-law principles, parties to an arbitration agreement may limit the Court's authority to stay or deny arbitration under state law by adopting the more restrictive procedural provisions of the Federal Arbitration Act. Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal. App. 5th 337, 345.

The subject employment agreement affects interstate commerce. The Federal Arbitration Act ('FAA,' 9 U. S. C. 1, et seq.) governs if the underlying contract facilitates interstate commercial transactions, or directly or indirectly affects commerce between states. 9 U. S. C. � 2 and Knight, Chernick, Flynn and Quinn, Cal. Prac. Guide: Alternative Dispute Resolution (The Rutter Group 2023) at � 5:51 (citing Bernhardt v. Polygraphic Co. of America (1956) 350 U S 198, 201 and Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U S 395, 401, 402, fn. 7). According to the declaration of Todd A. Shetter, the contract at issue here concerns employment at a facility providing residential memory care services.

The operations of this business involve and affect interstate commerce, as described. Therefore, the FAA applies.

Existence of an Arbitration Agreement Calendar No.: Event ID: TENTATIVE RULINGS

3127312 CASE NUMBER: CASE TITLE: AQUINO VS ACTIVE CARE LLC [IMAGED] 37-2023-00042734-CU-OE-CTL Although public policy favors contractual arbitration as a means of resolving disputes, that policy does not extend to those who are not parties to an arbitration agreement. Gamboa v. Northeast Community Clinic (2021) 72 Cal. App. 5th 158, 166.

A party cannot be compelled to arbitrate a dispute that he or she has not agreed to resolve by arbitration. Id. The moving party bears the initial burden of producing prima facie evidence of a written agreement to arbitrate the controversy. Id. at 165.

The moving party can meet its initial burden by attaching to the motion or petition a copy of the arbitration agreement purporting to bear the opposing party's signature. Id. For this step, it is not necessary to follow the normal procedures of document authentication. Id. If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. Id. The opposing party can do this in several ways. Id. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. Id. If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. Id. The burden of proving the existence of the agreement by a preponderance of the evidence remains with the moving party. Id. at 165, 166.

The declaration of Todd A. Shetter satisfies defendant's initial burden establishing the existence of the subject arbitration agreement. The burden shifts to plaintiff to demonstrate the non-existence of a valid agreement.

The translated declaration of Plaintiff submitted with the opposition states he worked for ActivCare Living, Inc. from February 2015 to June 2023. His native language is Tagalog. He does 'not speak, read or understand English with fluently. My understanding of what is said to me, what I hear or read in English is limited .... In order for me to understand documents written in English, I require the assistance of family or friends who have English proficiency and are able to translate the contents to Tagalog.' He also states: '6. When I began my employment with ActivCare. I remember Human Resources provided me with a packet of documents to sign. None of these documents were provided to me in Tagalog, and no one offered to translate any of these documents, nor did they try to explain them to me in simple terms.

7. It was my understanding that these documents needed to be filled out in order for me to keep my job.

8. I was provided with only a limited amount of time to look through and fill out the packet of documents.

9. It is my understanding that Defendant claims that I signed an arbitration agreement in February 2015 (the 'Agreement'). I do not remember receiving this Agreement or ever having signed it.

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3127312 CASE NUMBER: CASE TITLE: AQUINO VS ACTIVE CARE LLC [IMAGED] 37-2023-00042734-CU-OE-CTL 10. Due to the fact that I was unable to review and understand any document provided to me before signing, and due to the fact that they never gave me copies of any of these documents in Tagalog, I had no knowledge of the Agreement that Defendant claims I signed, and I only found out about the document when my attorney sent me a copy of the document in March 2024.

11. I reviewed the copy of the Agreement that my attorneys sent me, and I did not understand what it meant. In fact, I did not know what arbitration was or the purpose of the document until my attorney explained it to me.

12. Nobody from the company ever explained to me what arbitration was, or explained that there was an agreement to arbitrate contained in the packet provided to me at the beginning of my employment.

13. It is not possible for me to have agreed to arbitration at any time during my employment with Defendant because at that time I had no understanding of what arbitration was, let alone the difference between pursuing a claim in arbitration versus pursuing it in court 14. I was not given copies of any documents related to my employment.' 'Since the agreement here is not one of adhesion, the general rule, that one who signs an agreement cannot avoid its terms on the ground that he failed to read it, is applicable.' Bolanos v. Khalatian (1991) 231 Cal. App. 3d 1586, 1590 (quoting Izzi v. Mesquite Country Club (1986) 186 Cal. App. 3d 1309, 1318 and Madden v. Kaiser Foundation Hospitals (1976) 17 Cal. 3d 699, 710).

When a person with the capacity of reading and understanding an instrument signs it, he or she may not, in the absence of fraud, coercion or excusable neglect, avoid its terms on the ground they failed to read it before signing it. Id. The general rule is that one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument. Madden v. Kaiser Foundation Hospitals (1976) 17 Cal. 3d 699, 710.

An exception exists in the instance of a contract of adhesion. Id. As we have frequently explained, courts will not enforce provisions in adhesion contracts which limit the duties or liability of the stronger party unless such provisions are conspicuous, plain and clear. Id. 'In the characteristic adhesion contract case, the stronger party drafts the contract, and the weaker has no opportunity, either personally or through an agent, to negotiate concerning its terms.' Id. at 711.

'Applying the above principles to this case, we first determine whether the arbitration agreement is adhesive. There is little dispute that it is. It was imposed on employees as a condition of employment and there was no opportunity to negotiate .... � ... Moreover, in the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.' Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 114, 115.

The arbitration agreement in this action represents the quintessential adhesion contract. Plaintiff, who does not fluently speak or read English, was given the agreement in a packet of other onboarding documents, and informed they needed to be immediately filled out and signed in order for him to keep his job. He was not given copies of the documents and no one explained the import of what he was signing. The agreement to arbitrate is not conspicuous. The title ('AT-WILL EMPLOYMENT AGREEMENT') does not disclose the arbitration provision, which does not appear until the bottom of the Calendar No.: Event ID: TENTATIVE RULINGS

3127312 CASE NUMBER: CASE TITLE: AQUINO VS ACTIVE CARE LLC [IMAGED] 37-2023-00042734-CU-OE-CTL first page. The type is not large, there is no separate heading for the arbitration provision, and it does not have a separate initial or signature line.

The undisputed evidence demonstrates Plaintiff did not have the capacity or necessary understanding to agree to the terms of this adhesion agreement. This constitutes excusable neglect such that plaintiff is not bound by the terms of the arbitration agreement.

Plaintiff has satisfied his burden of producing evidence, and the burden now shifts to Defendant to establish with admissible evidence a valid arbitration agreement between the parties. The reply does not include any new evidence refuting Plaintiff's declaration. The reply brief states Plaintiff's inability to speak or understand English was 'undisclosed.' However, no evidence is submitted supporting this statement. Also, no legal authority is cited for the proposition that this is even material.

In fact, Plaintiff worked for Defendant for a period of nearly eight and one-half years. During this long period, the Court questions how, at if at all, a manager or supervisor would not have noticed this employee did not speak or read English well. At any time, Defendant could have provided Plaintiff with a Tagalog translation and / or someone could have explained the agreement to Plaintiff.

This Motion is denied based on the lack of an enforceable agreement. Given this finding, the Court does not address Plaintiff's other arguments (e.g., unconscionability).

Alternative Request for Stay The established rule of 'exclusive concurrent jurisdiction' provides that where two (or more) Courts possess concurrent subject matter jurisdiction over a cause, the Court that first asserts jurisdiction assumes it to the exclusion of all others, thus rendering 'concurrent' jurisdiction 'exclusive' with the first court. Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1175.

Typically, parties to the same controversy or transaction file separate suits on their individual causes of action, usually against each other. Id. Although their claimed rights and therefore their alleged causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments. Id. The rule of priority is designed to avoid the unfortunate results of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached. Id. In Shaw v. Superior Court of Contra Costa County (2022) 78 Cal. App. 5th 245, employees brought a PAGA representative suit against their employer, alleging various wage and hour violations. The claims overlapped completely with another PAGA suit filed in a different county one year prior. The appellate court affirmed a ruling staying the case under the doctrine of exclusive concurrent jurisdiction.

The Shaw opinion notes that because exclusive concurrent jurisdiction is a policy rule, application of the rule depends upon the balancing of countervailing policies. Id. at 256.

Unlike the statutory plea in abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. Id. If the Court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule. Id. The remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings. Id. Calendar No.: Event ID: TENTATIVE RULINGS

3127312 CASE NUMBER: CASE TITLE: AQUINO VS ACTIVE CARE LLC [IMAGED] 37-2023-00042734-CU-OE-CTL On February 25, 2022, a different former employee of ActivCare (Jackqueline Mitchell) filed a complaint against ActivCare Living, Inc. and ActivCare Living of California, Inc. in Orange County (case no.

30-2022-01247402). As in this case, the Mitchell Complaint alleges a single cause of action for violation of PAGA. On October 21, 2022, the Mitchell Court granted ActivCare's Motion to compel arbitration of the individual PAGA claim and stayed the case pending completion of arbitration.

A stay of this action is not appropriate. This action involves an additional Defendant (Active Care, LLC).

The Mitchell action is stayed pending the completion of arbitration. Thus, there is no risk of conflicting judgments and no efficiency will be realized by staying this action.

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