Judge: Jon R. Takasugi, Case: 23STCV09442, Date: 2023-08-09 Tentative Ruling

Case Number: 23STCV09442    Hearing Date: August 14, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to compel arbitration is GRANTED, and this action is ordered stayed pending the completion of arbitration.

            On 4/27/2023, Plaintiff Edna Simozar (Plaintiff) filed suit against the University of Southern California (Defendant or USC), alleging: (1) discrimination in violation of FEHA; (2) failure to prevent discrimination (FEHA); (3) failure to engage in a timely good faith interactive process in violation of FEHA; (4) failure to provide reasonable accommodation; (5) retaliation in violation of FEHA; (6) harassment in violation of FEHA; (7) failure to prevent harassment in violation of FEHA; (8) Labor Code section 1102.5; (9) Labor Code section 6310, 6311; (10) failure to pay meal and rest period compensation; and (11) failure to pay all amounts due upon separation from employment.

            Now, Defendant moves to compel arbitration of Plaintiff’s Complaint, and requests a stay of this action pending completion of arbitration proceedings.

Legal Standard

Where the Court has determined that an agreement to arbitrate a controversy exists, the Court shall order the petitioner and the respondent to arbitrate the controversy …unless it determines that…  grounds exist for rescission of the agreement.” (Code Civ. Proc., § 1281.2.) Among the grounds which can support rescission are fraud, duress, and unconscionability. (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239.) The Court may also decline to compel arbitration wherein there is possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2 (c).)

Discussion

The party moving to compel arbitration “bears the burden of proving [the] existence [of an arbitration agreement] by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The moving party also bears the burden of demonstrating that the claims fall within the scope of the arbitration agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)

A.    Existing Agreement and Covered Claims

Defendant submitted evidence that on 3/22/2018, in connection with her acceptance of USC’s job offer for the position, Plaintiff electronically signed a two-page Agreement to Arbitrate Claims. (Vachhani Decl., Exhs. A-B.) Defendant submitted evidence that Plaintiff did so “using a unique Workday Candidate Account for which she created a password and engaged in a two-step acknowledgment process.” (Motion, 13: 18-19.) As such, Defendant contends that Plaintiff “cannot reasonably dispute that she entered into the Agreement.” (Motion, 13: 18-19.)

The Agreement provides, in pertinent part, that:

The University and the faculty or staff member named below (“Employee”) agree to the resolution by arbitration of all claims, whether or not arising out of Employee’s University employment, remuneration or termination, that Employee may have against the University or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise; and all claims that the University may have against Employee.

            (Id. at Exh. A.)

The Agreement goes on to explain that

“[a]ny claim that otherwise would have been decidable in a court of law – whether under local, state or federal law – will instead be decided by arbitration, except as specifically excluded by this Agreement.” Id. The Agreement then lists examples of claims it covers, including without limitation: claims for wages or other compensation due; claims for breach of any contract or covenant (express or implied); claims for personal, physical, or emotional injury, or for any tort; claims for discrimination or harassment (including, but not limited to, race, sex, religion, national origin, age, marital status, sexual orientation, gender identity or expression, military and veteran status, or medical condition or disability); claims for “whistleblowing” or retaliation; and claims for violation of any federal, state or other governmental law, statute, regulation, or ordinance.

            (Ibid.)

            Here, Plaintiff’s claims arise out of her employment with Defendant, and thus expressly fall within the scope of covered claims.

Given that Defendants have established by a preponderance of the evidence that an arbitration agreement exists, and that Plaintiff’s claims are covered by that agreement, the burden shifts to Plaintiff to establish that the arbitration clause should not be enforced. (Pinnacle, 55 Cal.4th at p. 236.)

II.               Plaintiff’s Burden 

The party opposing arbitration bears the burden of proving, by a preponderance of the evidence, any defense, such as unconscionability or duress. (Pinnacle, supra, 55 Cal.4th at p. 236.)

Plaintiff filed an late opposition just five days before the hearing. While the Court would not ordinarily consider the motion, given the prejudice to Defendant, the Court has done so here because Plaintiff’s arguments do not change the ruling reached.

As for procedural unconscionability, Plaintiff argues that the contract is one of adhesion. Where pre-employment adhesion contracts are involved, a degree of procedural unconscionability is always present. This is because, “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 agreement.” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071 (Little).)  However, where “there is no other indication of oppression or surprise, the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.” (Ajamian, supra, 203 Cal.App.4th at p. 796.)

      Here, Plaintiff argues that the agreement is substantively unconscionable because it waives a part’s right to trial by jury, and doesn’t secure the right to issue third-party subpoenas. However, as to the first point, there is a strong public policy in favor of private arbitration in California. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1.) As to the second point, Plaintiff does not identify any language in the Agreement which limits the right to third-party subpoenas, much less any provision in the agreement that allows discovery to be limited in a manner inconsistent with California law.

The Court concludes that Plaintiff has failed to show any evidence of substantive unconscionability.  Therefore, while Plaintiff has demonstrated a degree of procedural unconscionability, she has not demonstrated any degree of substantive unconscionability. As a result, the Court finds that the arbitration agreement is enforceable. (Ajamian, supra, Cal.App.4th at p. 796.)

Based on the foregoing, Defendant’s motion to compel arbitration is granted, and this action is ordered stayed pending the completion of arbitration.

It is so ordered.

Dated:  August    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.