Judge: Malcolm Mackey, Case: 22STCV23980, Date: 2023-01-17 Tentative Ruling
Case Number: 22STCV23980 Hearing Date: January 17, 2023 Dept: 55
ANGELICA
THOMAS v. THE MOCHI ICE CREAM COMPANY, LLC 22STCV23980
Hearing Date: 1/17/23,
Dept. 55
#5: MOTION TO COMPEL ARBITRATION.
Notice: Okay
Opposition
MP:
Defendants
RP:
Plaintiff
Summary
On 7/26/22, Plaintiff filed a Complaint alleging that she
brings this action to recover damages from defendants for discriminatory
employment practices after she notified defendants that she was pregnant.
The causes of action are:
1. WRONGFUL TERMINATION
IN VIOLATION OF PUBLIC POLICY;
2. PREGNANCY
DISCRIMINATION IN VIOLATION OF CAL. GOV. CODE § 12940 et seq.;
3. RETALIATION IN
VIOLATION OF CAL. GOV. CODE § 129040 et seq.;
4. FAILURE TO PREVENT
PREGNANCY DISCRIMINATION IN VIOLATION OF CAL. GOV. CODE § 129040 et seq.;
5. HOSTILE WORK
ENVIRONMENT;
6. INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS;
7. SEX DISCRIMINATION IN
VIOLATION OF CAL. GOV. CODE § 129040 et seq.; and
8. DECLARATORY RELIEF.
MP
Positions
Moving parties request an order compelling arbitration
of the Complaint, and dismissing this action, on grounds including the
following:
·
Plaintiff Angelica Thomas entered into a
valid and enforceable mutual arbitration agreement to arbitrate claims arising
out of her former employment with Defendant The Mochi Ice Cream Company, LLC.
·
Plaintiff already filed a complaint
against Mochi and others with JAMS, in March 2022.
·
the Arbitration
·
The Arbitration Agreement was not
“superseded” by another arbitration agreement referenced in the company’s 2021
Employee Handbook. Mochi never implemented any arbitration agreement other than
the Arbitration Agreement that Plaintiff signed. See Berger Dec. ¶ 2.
RP
Positions
Opposing party advocates denying, for reasons including
the following:
·
The only agreement Ms. Thomas ever signed
was with “Mikawaya,” and defendants do not make any argument or present any
evidence as to how they are permitted to enforce an arbitration agreement with
a different entity called The Mochi Ice Cream Company.
·
Mochi has not shown what its relationship
is with Mikawaya, if any, and has not shown that Mikawaya made the arbitration
agreement for Defendants’ benefit.
·
Defendants Barnett and Cardenas are not
parties to the Mikawaya Arbitration Agreement, as they are not employees of
Mikawaya and did not sign the Agreement.
·
Sending Mochi to arbitration but not
Barnett and Cardenas would risk conflicting rulings. C.C.P. §1281.2(c).
·
Mikawaya is not a legal entity or a
fictitious business name. Section 17918 of the California Business &
Professions Code; Villareal v. LAD-T,
LLC (2022) 84 Cal. App. 5th 446, 451, 457.
·
The Mochi Employee Handbook supersedes the
Mikawaya Arbitration Agreement.
·
Ms. Thomas was never provided the second
arbitration agreement referenced in the Mochi Employee Handbook.
·
Recent legislation trends show this type
of case should not be arbitrated. Cal. Lab. Code §432.6(h).
·
On March 3, 2022, President Biden signed
into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021 (the “Act”). (Pub. L. No. 117-90, 136 Stat. 26.) The Act amends the
FAA and gives individuals asserting sexual harassment claims the unfettered
option to bring those claims in court, even if they had agreed to arbitrate
such disputes before the claims arose. (Id., at § 402(a).)
·
Any assertion that Ms. Thomas filed the
instant action because she was “apparently dissatisfied with the Arbitrator
assigned to the matter” or “for other improper motives” are preposterous.
Tentative
Ruling
The motion is granted, except as to requested
dismissal.
Plaintiff and Defendant shall arbitrate the
controversies between them, including the entire Complaint, in accordance with
their agreement to arbitrate.
This entire case is stayed until such arbitration has
been completed.
The Court finds that the arbitration agreement that
Plaintiff signed remains in effect and applies to Plaintiff’s
employment-related issues. The 2017 Arbitration Agreement is enforceable as to
Plaintiff’s claims against defendants Mochi, Barnett and Cardenas after the
2021 Employee Handbook.
In pertinent part, the arbitration agreement provides
as follows:
(Plaintiff’s decl., filed 1/3/23, ex. A.)
The agreement expressly states that it could not be
terminated unless in writing and signed by Plaintiff, but there is no such
document. "Essential to a novation
is that it ‘clearly appear' that the parties intended to extinguish … the
original agreement." Howard v.
County of Amador (1990) 220 Cal. App. 3d 962, 977. Whether there are separate arbitration
agreements depends upon the particular contract language. Romo v. Y-3 Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1159 (fact that
one section contemplates a signature separate from one required in another
section indicated separate agreements).
Further, the later handbook refers to that same
agreement as governing, and expressly makes clear that the handbook is not a
contract that can change anything like the arbitration agreement. Courts have reasoned that employees did not
assent to arbitration via handbooks that were informational, or that did not
call attention to an arbitration agreement.
Sparks v. Vista Del Mar Child and Family Services (2012) 207
Cal.App.4th 1511, 1519-20 (citing Mitri
v. Arnel Mgt. Co. (2007) 157 Cal.App.4th 1164, 1167-71).
Corroborating that information is CEO Craig Berger’s declaration,
stating that there is only one arbitration agreement, and not any planned one that
was never made. For ascertaining any
agreement to terms of duration, courts consider express terms, and those
implied from the nature and circumstances of the contract. Zee Medical
Distrib. Ass'n v. Zee Medical (2000) 80 Cal. App. 4th 1, 10.
As for contracting parties, the arbitration agreement by
far has the broadest coverage of various party types ever seen in this
courtroom (e.g., employees, agents, successors, and related entities), such
that moving parties’ different names are contemplated as contracting parties,
or at least intended as third-party-beneficiaries. Party types need not be named where they fall
within classes to be benefited, such that registration as “doing business as”
makes no material difference in this case.
Loduca v. Polyzos (2007) 153 Cal.App.4th 334, 341 (parties not
named in contracts may qualify as beneficiaries if agreements reflect that
intent); Diamond Woodworks, Inc. v.
Argonaut Ins. Co. (2003) 109 Cal. App. 4th 1020, 1040 (beneficiary may
recover if one of a class of parties
for whose benefit the agreement was made), disapproved on other grounds
by Simon v. San Paolo U.S.
Holding Co., Inc. (2005) 35 Cal.4th 1159, 1182. Intended third-party beneficiaries may
enforce arbitration provisions. Macaulay
v. Norlander (1992) 12 Cal.App.4th 1, 7–8;
Michaelis v. Schori (1993) 20 Cal.App.4th 133, 139
(agreement expressly included arbitration of claims as to signatory’s
employees).
Additionally, Complaint paragraphs 32 and 33 admit
that defendants RUSSELL BARNETT and MARIA CARDENAS acted as agents. Generally, just signatories to arbitration
agreements have standing to enforce them, with exceptions as to nonsignatory persons “who are agents or alter
egos of a signatory party or intended third party beneficiaries of an
arbitration agreement.” Bouton v.
USAA Casualty Ins. Co. (2008) 167 Cal.App.4th 412, 424. Accord
Smith v. Microskills San Diego L.P. (2007) 153 Cal. App. 4th 892, 896. “[A] plaintiff's allegations of an agency
relationship among defendants is sufficient to allow the alleged agents to
invoke the benefit of an arbitration agreement executed by their principal even
though the agents are not parties to the agreement.” Thomas v. Westlake (2012) 204
Cal.App.4th 605, 614-15.
Applying equitable estoppel to compel arbitration,
without an applicable arbitration agreement, a nonsignatory may compel
arbitration when the claims against the nonsignatory are founded in, and
inextricably bound up with, the agreement’s obligations, as determined by
examining the facts of the complaint. Felisilda
v. FCA US LLC (2020) 53 Cal.App.5th 486, 496-97 (“Because the Felisildas expressly agreed to
arbitrate claims arising out of the condition of the vehicle—even against third
party nonsignatories to the sales contract—they are estopped from refusing to
arbitrate their claim against FCA.”).
Because all defendants have standing to compel
arbitration, there is no issue of a possibility of conflicting rulings between
arbitration and court proceedings under Code of Civil Procedure Section
1281.2(c).
Additionally, the
cited statutes, restricting arbitration contracting with employees, occurred
after the relevant times alleged in this action. “In construing statutes, there is a
presumption against retroactive application unless the Legislature plainly has
directed otherwise ….” Bank of
America, N.A. v. Roberts (2013) 217 Cal. App. 4th 1386, 1394.
Further, because Plaintiff previously commenced
arbitration for a time, the Court finds an implied admission or waiver as to the
arbitration.
Finally, where a court has ordered arbitration, it
shall stay the pending action, until an arbitration is had in accordance with
the order to arbitrate, or another earlier time, and the stay may be with
respect to an issue that is severable.
CCP §1281.4; Cruz v.
PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 320; Twentieth Century Fox Film Corp. v. Sup.
Ct. (2000) 79 Cal.App.4th 188, 192; Heritage Provider Network, Inc. v. Sup. Ct.
(2008) 158 Cal.App.4th 1146, 1152, 1154 n. 12.