Judge: Malcolm Mackey, Case: 20STCV39974, Date: 2022-12-14 Tentative Ruling

Case Number: 20STCV39974    Hearing Date: December 14, 2022    Dept: 55

CURRY v. LAKEWOOD HEALTHCARE AND WELLNESS CENTRE, LP 20STCV39974

Hearing Date:  12/14/22,  Dept. 55

#7:   

MOTION TO COMPEL ARBITRATION OF INDIVIDUAL PAGA CLAIM AND TO STRIKE OR STAY NON-INDIVIDUAL PAGA CLAIM.

MOTION TO ENFORCE COMPLIANCE WITH STIPULATION AND REQUEST FOR CONTINUANCE.

Notice:            Okay as to arbitration motion. 

Opposition not reaching merits, re insufficient days’ notice as to stipulation.

Oppositions

MP:     Defendant

            Plaintiff

RP:      Plaintiff

            Defendant

Summary

On 10/16/20, Plaintiff MIKISHA CURRY filed a representative PAGA Complaint alleging that Defendant as employer at a nursing home committed various wage-and-hour violations.

MP Positions

Moving party requests an order compelling arbitration, and striking, dismissing or staying the non-individual PAGA claims, on grounds including the following:

·         Plaintiff had upon hire signed an agreement committing such claims to individual arbitration.

·         On her first day Plaintiff was given a two-part document: Part one was titled ALTERNATIVE DISPUTE RESOLUTION POLICY; part two—which the parties each signed—was titled AGREEMENT TO BE BOUND BY ALTERNATIVE DISPUTE RESOLUTION POLICY. Id. ¶ 5.

·         Until June 15, 2022, Defendant could not enforce that provision of the agreement, because Iskanian prohibited it. On June 15, 2022, the contrary Viking River decision enabled arbitration compelling.

·         The agreement between Plaintiff and Defendant satisfies all these requirements: (1) It provides for a neutral arbitrator who must be either “mutually selected” by the parties or selected “according to the method of selection specified by the AAA in its Employment Arbitration Rules and Mediation Procedures.”  (2) It affords the parties “all of the same rights, remedies and procedures…as provided for in the civil discovery statutes of [California].” (3) It requires the arbitrator to “issue a written opinion and award.” (4) It gives the arbitrator “the same authority to award remedies and damages on the merits of the dispute” as a judge or jury. (5) It calls for Defendant, not Plaintiff, to pay the unique costs of arbitration—namely “the arbitrator’s fee and expenses and any costs associated with the facilities for the arbitration.

·         Any unenforceable arbitration provision could be severed, and the remainder enforced.

·         The FAA applies.  As a healthcare provider Defendant deals with national and multinational private and public health insurers like Cigna, Blue Cross Blue Shield, UnitedHealth, Medicare, and Medicaid, as well as out-of-state medical suppliers and vendors.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         The contracting parties are not identified in the arbitration documents. Najarro v. Superior Court (2021) 70 Cal.App.5th 871.

·         The agreement is unconscionable. 

·         It is a contract of adhesion and could not be modified.

·         Plaintiff was never explained verbally that she was allowed to or should consult any attorney before signing the onboarding documents or any purported arbitration agreement.

·         It contains an unlawful PAGA waiver notwithstanding the FAA, which cannot be severed without revising the contract.  E.g., Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384, abrogated in part by Viking.

·         Viking does not compel dismissal of the representative PAGA claim.  Under Kim v. Reins Int’l Cal., Inc (2020) 9 Cal.5th 73, the fact that an aggrieved employee may be required to pursue the LWDA’s claims for civil penalties in two forums does not transform her from an aggrieved employee with PAGA standing into a member of the general public with no statutory rights.  The Court should deny Defendant’ Motion or, in the alternative, stay its ruling pending a final decision in Adolph v. Uber Techs., Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022), review granted (July 20, 2022), in which the California Supreme Court is expected to resolve the issue of whether a PAGA plaintiff retains her standing to pursue the representative claim even after resolving her own individual claim.

Tentative Ruling

The motion to compel arbitration is granted. 

Plaintiff and Defendant shall arbitrate the controversies between them, including the entire Complaint, in accordance with their agreement to arbitrate. 

The Court overrules each of Plaintiff’s opposing evidentiary objections.

This entire case is dismissed.

The motion to enforce discovery stipulation is ordered off calendar, due to arbitration compelling, and insufficient days’ notice subject to objection.  E.g., MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 662 ("After a petition to compel arbitration has been granted and a lawsuit stayed, 'the arbitrator takes over. It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy.'”).

            Assent

The Court has compared the signatures on Plaintiff’s declaration and on the arbitration contract attached to Defendant’s declaration, and easily finds they are the same shape and the same signature, such that Plaintiff is identified as a contracting party.  Comparisons of signatures or other handwriting need not be made by a witness or an expert, but instead the trial judge may make the comparison.   E.g.,  Devereaux v. Frazier Mountain Park & Fisheries Co. (1967)248 Cal.App.2d 323, 330.

Additionally,  Defendant’s declaration is competent evidence to authenticate Plaintiff’s signed arbitration agreement, based upon evidentiary foundation showing personal knowledge of the employer’s consistent handling of arbitration agreements. 

Courts have broad discretion in determining whether witnesses are qualified to testify concerning  “ ‘the identity and mode of preparation’ ” of business records, to permit a determination that ‘[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.’ ”  Sierra Managed Asset Plan, LLC v. Hale (2015) 240 Cal.App.4th Supp. 1, 9.  Courts have wide discretion in determining whether proper foundation was laid for admission of records under business records exception.  Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798.  Foundational evidence in support of the business records exception to the hearsay rule need not be presented by the custodian of the record, or the employee who prepared it.  Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798.  To establish admissibility, based on the business records exception to the hearsay rule, a witness having personal knowledge of the transaction or event, need not testify, but instead any qualified witness familiar with the procedures followed, may testify.  Jazayeri v. Mao (2009) 174 Cal. App. 4th 301, 322.  “ ‘The witness need not have been present at every transaction to establish the business records exception; he or she need only be familiar with the procedures followed ….’ ”  Midland Funding LLC v. Romero (2016) 5 Cal.App.5th Supp. 1, 8.

Further, the arbitration agreement clearly identifies the other contracting party as the employer company employing Plaintiff as employee and shows a signature in the employer’s signature line.  That level of identifying detail clearly differs from opposing party’s cited case lacking identification.  See  Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 883  (“none of the Version One agreements were signed by any of the real parties in interest: Version One does not even purport to identify who the employee's counterparty is supposed to be. Throughout, Version One refers to the “Company,” but Version One never identifies it as a specific person or otherwise specify which real party in interest is the other contracting party.”).

Moreover, signatures are not required where circumstances show the parties’ assent, and here Plaintiff acknowledges having been employed by Defendant in the Complaint and opposition to the arbitration motion.  “[I]t is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters.”  Banner Entertainment, Inc. v. Sup. Ct.  (1998) 62 Cal.App.4th 348, 361 (finding a complete absence of proof of circumstances showing assent). 

Unconscionability

Plaintiff’s declaration mostly shows lack of recollection and is not convincing.  Plaintiff’s evidence is too general and conclusory to show employer communication of a requirement to accept the arbitration agreement unmodified.  If a plaintiff’s evidence shows that a moving party communicated that an arbitration agreement was nonnegotiable, then the moving party needs to establish that it had made opposing party aware of an ability to negotiate, or that by law opposing party such a right.   Htay Htay Chin v. Advanced Fresh Concepts Franchise Corp.  (2011) 194 Cal.App.4th 704, 710.  

Alternatively, employer-required arbitration agreements are not necessarily unconscionable.  "[A] compulsory predispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis."  Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105, 1127.  Accord  Giuliano v. Inland Empire Personnel, Inc.  (2007) 149 Cal.App.4^th 1276, 1292.

The Court finds that the documents include obvious, clear and uniquely well-written explanations of arbitration in readily understandable wording that Plaintiff had the opportunity to read.  “‘[O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing….’”  Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701.

Opposing parties’ evidence lacks factors indicating that any further explanations of the arbitration agreement were needed.  Distinguishably, surprise caused by provisions buried in a long contract, language not fully explained, or misleading captions, indicates procedural unconscionability.  Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1373. 

Further, the PAGA waiver provisions become immaterial after determination of Plaintiff’s lack of standing to serve as representative of others (addressed, infra), and, if necessary, the Court otherwise severs such provisions and enforces the rest of the arbitration agreement.  An unconscionable provision may be severed, and the remainder of the arbitration agreement may be given effect.  Fittante v. Palm Springs Motors, Inc.(2003) 105 Cal. App. 4th 708, 726.

            PAGA Standing

The Iskanian opinion correctly decided a PAGA waiver is unenforceable as to non-individual claims, without any FAA preemption, but arbitration can be compelled as to individual plaintiffs’ waived claims, and the remaining claims of representative actions should be dismissed, due to lack of standing upon plaintiffs’ removal from the action and into arbitration.  Viking River Cruises v. Moriana    (2022) 142 S. Ct. 1906, 1924-25  (opinion after granting petition for writ of certiorari to the Court of Appeal of California).  There is a rule against PAGA waivers and predispute arbitration agreements, notwithstanding the Federal Arbitration Act.  Contreras v. Sup. Ct. (2021) 61 Cal.App.5^th 461, 471-72.  See also  Winns v. Postmates Inc. (2021) 66 Cal. App. 5th 803, 815 n. 4  (California cases never overruled Iskanian, although the Viking opinion was then anticipated to address Ikanian).

The Court exercises its discretion to decide and not delay the ruling pending a related decision--  Adolph v. Uber Techs., Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022), rev. grt’d (July 20, 2022).  A trial court would not abuse discretion in delaying litigation pending an appeal of a case involving the same issues.  California Canning Mach. Co. v. Sup. Ct. (1935) 3 Cal.2d 606, 608;  Reed v. Sup. Ct (2001) 92 Cal. App. 4th 448, 455.

A case can be dismissed on the grounds that all issues are susceptible to arbitration by agreement and plaintiff did not attempt to exhaust arbitration. 24 Hour Fitness, Inc. v. Sup. Ct. (1998) 66 Cal. App. 4th 1199, 1208;  Charles J. Rounds Co. v. Joint Council of Teamsters (1971) 4 Cal.3d 888, 899. 

Finally, the Court disregards trial court rulings in other cases, referenced in the opposing papers, which are not binding precedent.  E.g., Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 738.  Rulings in other cases are irrelevant, absent some additional showing like the elements of claim or issue preclusion.  Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 448.  Further, federal appellate law is not binding upon California courts, and may be only persuasive in some circumstances.  Alameida v. State Personnel Bd. (2004) 120 Cal. App. 4th 46, 61.