Judge: John J. Kralik, Case: 21BBCV00446, Date: 2022-09-16 Tentative Ruling

Case Number: 21BBCV00446    Hearing Date: September 16, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Andrea Rodriguez, individually, and on behalf of other aggrieved employees pursuant to the California Private Attorneys General Act (“Plaintiff”) commenced this action for enforcement under PAGA against Defendants Trident Care, LLC, Kan Di Ki, LLC (“KDK”), Trident Holdco., LLC, Trident Holding Company, LLC, and TridentCare.  Plaintiff alleges violations of the Labor Code, including Defendants’ failure to pay overtime, provide meal and rest periods, pay minimum wages, timely pay wages upon termination and during employment, provide complete and accurate wage statements, keep complete and accurate payroll statements, and reimburse necessary business-related expenses and costs. 

The complaint, filed May 6, 2021, alleges a single cause of action for violation of California Labor Code, § 2698, et seq.

On March 21, 2022, Plaintiff dismissed without prejudice Trident Care, LLC, Trident HoldCo., LLC, TridentCare, and Trident Holding Company, LLC.  Thus, the only remaining Defendant is KDK.

B.     Motion on Calendar

On August 2, 2022, Defendant Kan Di Ki, LLC (“KDK”) filed a motion to compel arbitration, dismiss remaining claims, and stay the action.  

On September 2, 2022, Plaintiff filed an opposition brief.

On September 9, 2022, Defendant KDK filed a reply brief.

REQUEST FOR JUDICIAL NOTICE

            KDK requests judicial notice of: (A) Plaintiff’s complaint filed in Case No. 21STCV08327; (2) Plaintiff’s request for dismissal on May 28, 2021 in Case No. 21STCV08327; and (3) the court’s order of dismissal on June 8, 2021 in Case No. 21STCV08327.  The request is granted.  (Evid. Code, § 452(d).) 

EVIDENTIARY OBJECTIONS

            With the opposition brief, Plaintiff submits evidentiary objections to the declaration of Megan Moffett.  Objection No. 1 is overruled.  Objection Nos. 2-3 (¶¶4, 7) are sustained as Ms. Moffett has not explained her connection between working in human resources at TridentCare and how this would make her familiar with the employment process at KDK.  In light of Objection Nos. 2 and 3, Objection Nos. 4-7 (¶¶8-11) are sustained.  In addition, Ms. Moffett has not explained how she has knowledge that Plaintiff was the one that signed the Applicant’s Statement & Agreement (in person) or that Plaintiff clicked “Accept” for the Electronic Acknowledgement to the Dispute Resolution Agreement as Ms. Moffett has not stated that she witnessed Plaintiff executing the documents.

DISCUSSION

            KDK moves to compel arbitration of Plaintiff’s individual PAGA claims, dismissing Plaintiff’s non-individual PAGA claims, and staying the action pending the outcome of the arbitration. 

A.    Terms of the Arbitration Agreement and Enforceability

KDK provides the declaration of Megan Moffett, who states that she is the Senior Human Resources Business Partner of TridentCare and is familiar with the employment application policies and procedures of KDK. (Moffett Decl., ¶¶2, 4.)  She states that Plaintiff applied for a job with KDK in December 2017 and signed the Applicant’s Statement & Agreement on December 21, 2017.  (Id., ¶7, Ex. A [Applicant’s Statement & Agreement].)  Ms. Moffett states that Plaintiff was given a copy of the Dispute Resolution Agreement in 2018 and Plaintiff signed an electronic acknowledgement.  (Id., ¶¶8-9, Ex. B [Dispute Resolution Agreement], Ex. C [Dispute Resolution Agreement, Electronic Acknowledgement].)  However, as discussed above with respect to the evidentiary objections, Ms. Moffett has not stated her personal knowledge as to the employment practices of KDK, how TridentCare and KDK are related, or whether KDK is an intended third-party beneficiary of TridentCare’s agreements to arbitrate with Plaintiff.

The Applicant’s Statement & Agreement states in relevant part:

I further agree and acknowledge that the Company and I will utilize binding arbitration as the sole and exclusive means to resolve all disputes that may arise on, of or be related in any way to my employment and/or application, including but not limited to the termination of my employment and my compensation. The Company and I each specifically waive and relinquish our right to bring a claim against the other in a court of law. Both I and the Company agree that any claim, dispute and/or controversy that I may have against Company (or its owners, directors, officers, managers, employees, or agents) or the Company may have against me shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (“FAA”). … Included within the scope of this Agreement are all disputes, whether based on tort, contract, statute (including but not limited, any claims of discrimination, harassment and/or retaliation, whether they be based on Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, or any other state or federal law, or regulation), equitable law, or otherwise.

…

DO NOT SIGN UNTIL YOU HAVE READ THE ABOVE STATEMENT & AGREEMENT.

(Moffett Decl., Ex. A [Applicant’s Statement & Agreement].)  The document is signed and dated December 21, 2017.  Ms. Moffett states that she is familiar with Plaintiff’s signature.  (Id., ¶6.)

The Dispute Resolution Agreement states in relevant part:

I and Trident Holding Company, LLC (“the Company”) agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my employment with the Company, its affiliates, parents, subsidiaries, divisions and/or related companies. I and the Company each specifically waive and relinquish our respective rights to bring a claim against the other in a court of law and to have a trial by jury. Both I and the Company agree that any claim, dispute, and/or controversy that I may have against the Company (or its affiliates, parents, subsidiaries, divisions, related companies, owners, directors, officers, managers, employees, or agents), or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (“FAA”). The FAA applies to this Agreement because the business of the entity who employs me involves interstate commerce. Included within the scope of this Agreement are all disputes, whether based on tort, contract, statute (including, but not limited to, any claims of discrimination, harassment and/or retaliation, whether they be based on the Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation), equitable law, or otherwise. The only exceptions to binding arbitration shall be for claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under state workers’ compensation laws, claims for unemployment insurance, or other claims that are not subject to arbitration under current law. I and the Company acknowledge that by signing or refusing to sign this Agreement, I make no representation or demonstration of support or rejection of concerted activity. However, nothing herein shall prevent me from filing and pursuing proceedings before the United States Equal Employment Opportunity Commission or similar state governmental agency that enforces state fair employment laws (although if I choose to pursue a claim following the exhaustion of such administrative remedies, that claim would be subject to the provisions of this Agreement).

I agree that any claims brought under this binding arbitration Agreement shall be brought in the individual capacity of myself or the Company. This binding arbitration Agreement shall not be construed to allow or permit the consolidation or joinder of other claims or controversies involving any other employees or parties, or permit such claims or controversies to proceed as a class or collective action. No arbitrator shall have the authority under this agreement to order any such class or collective action. Any dispute regarding the scope or enforceability of this Agreement shall be resolved by a court, not by the arbitrator. By signing this agreement, I am agreeing to waive any substantive or procedural rights that I may have to bring or participate in an action brought on a class or collective basis. This agreement is not intended to interfere with my rights to collectively bargain, to engage in protected, concerted activity, or to exercise other rights protected under the National Labor Relations Act. Notwithstanding anything in this binding arbitration Agreement to the contrary, nothing in this Associate Handbook is intended to supersede or amend any obligation under any signed written agreement relating to my employment with the Company.

(Moffett Decl., Ex. B [Dispute Resolution Agreement].)  In Exhibit C, Plaintiff “Accepted” the Dispute Resolution Agreement electronically on October 23, 2018 at 5:01 a.m.  (Id., Ex. C [Dispute Resolution Agreement, Electronic Acknowledgement].) 

            In opposition, Plaintiff argues that KDK has not established its burden in showing that a valid agreement to arbitrate exists.

While the Applicant’s Statement & Agreement is signed and dated, Plaintiff has submitted some disputing evidence. In her declaration, Plaintiff states that she recalls getting a job offer and being handed a large packet of documents to sign on December 21, 2017, but she felt that she had no say in the matter and had to sign the documents in order to get the job. (Pl.’s Decl., ¶7.)  She states: “I can confirm the signature on the ASA is not my signature.”  (Id., ¶8.)  The signature of her recent declaration is as follows:

In contrast, the signature on the Applicant’s Statement & Agreement is as follows:

Further, while Ms. Moffett states that she is familiar with Plaintiff’s signature, she provides no foundation or personal knowledge on how she is familiar with Plaintiff’s signature.  

            Next, Plaintiff argues that the Dispute Resolution Agreement and the Electronic Acknowledgement thereto fail to show that she agreed to arbitrate her claims.  The parties to the Dispute Resolution Agreement are “I” (the employee) and Trident Holding Company, LLC.  However, there is no mention of KDK as a party to the Dispute Resolution Agreement.  With respect to the Electronic Acknowledgement, it states “Mrs. Andrea Marie Rodriguez” at the top of the page and asks her to check “Accept” and then click “Save” to agree to the Dispute Resolution Agreement by no later than October 22, 2018.  The status is listed as “Accepted” and the Status Date states “10/2/2018 5:01 AM.”  Plaintiff states in her declaration that she cannot recall ever logging into Defendant’s online portal to sign any documents on October 23, 2018, including an agreement to arbitrate.  (Pl.’s Decl., ¶9.)  She states that she was not given the opportunity to thoroughly read the documents or consult an attorney and that no employee/representative of Defendant discussed or explained the documents to her, informed her what she was signing, explained what a “representative” claim was, told her that signing the documents was voluntary or that she could negotiate the terms, told her that she could delay signing the documents, or explained to her what an arbitration agreement was.  (Id., ¶¶10-18.)  She states that she does not recall ever being given copies of the rules of arbitration or copies of the Applicant’s Statement & Agreement and Dispute Resolution Agreement.  (Id., ¶¶19-20.) 

            With the reply brief, KDK presents a declaration by Kiley Alberts, who is the Human Resources Business Partner of KDK.  Ms. Alberts compares Plaintiff’s signatures with the rest of her application forms to argue that Plaintiff signed the Applicant’s Statement & Agreement. (See Alberts Decl., ¶¶5-8, Exs. A-B.)  She also explains the online Multi-Factor Authentication system for employees to access their email and to review/electronically acknowledge updated handbooks and dispute resolution agreements.  (Id., ¶¶9-12.)  She states that based on the requirement of a user ID, password, and Multi-Factor Authentication system to access the online accounts, it is highly unlikely or impossible that someone other than Plaintiff signed the Dispute Resolution Agreement and the Electronic Acknowledgement.  (Id., ¶18.) 

            However, Ms. Alberts’ declaration is new evidence that was submitted for the first time in reply.  Thus, Plaintiff has been deprived of the opportunity to respond to Ms. Alberts’ statements and the attached exhibits.  In light of the new evidence, the Court will continue the hearing on the motion and allow Plaintiff to file a sur-opposition to respond to Ms. Alberts’ declaration.

CONCLUSION AND ORDER

Defendant Kan Di Ki, LLC’s motion to compel arbitration is continued to October 7, 2022 at 8:30 a.m.  Plaintiff Andrea Rodriguez is ordered to file a sur-opposition by September 26, 2022 by the end of the business day, which addresses the declaration of Kiley Alberts and the sole issue of the existence of the agreement to arbitrate.

This courtroom is dark on November 9, 2022.  Therefore, on the Court’s own motion, the Case Management Conference set on November 9, 2022, is advanced to this date and continued to December 7, 2022, at 8:30 a.m.

Defendant shall provide notice of this order.