Judge: Malcolm Mackey, Case: 22STCV31463, Date: 2023-08-21 Tentative Ruling
Case Number: 22STCV31463 Hearing Date: August 21, 2023 Dept: 55
SILVA
v. SDH SERVICES WEST, LLC, 22STCV31463
Hearing Date: 8/21/23,
Dept. 55.
#3: MOTION TO COMPEL ARBITRATION AND TO DISMISS
THIS ACTION OR STAY PROCEEDINGS.
Notice: Okay
Opposition
MP:
Defendant
RP:
Plaintiff
Summary
On 9/26/22, Plaintiff AUGUSTIN SILVA filed a Complaint
alleging that managers of defendants never provided approved disability accommodations
to Plaintiff, causing him more pain in his injured shoulder.
The causes of action are:
1. WRONGFUL TERMINATION
IN VIOLATION OF FEHA (GOV’T. CODE § 12940 ET SEQ.);
2. FEHA VIOLATIONS BASED
UPON DISABILITY DISCRIMINATION;
3. FAILURE TO PROVIDE
REASONABLE ACCOMMODATIONS IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.;
4. FAILURE TO ENGAGE IN A
GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.;
5. FEHA VIOLATIONS BASED
UPON RETALIATION;
6. FAILURE TO REINSTATE
IN VIOLATION OF THE CFRA;
7. INTERFERENCE WITH,
RESTRAINT, AND DENIAL OF MEDICAL LEAVE IN VIOLATION OF THE CFRA;
8. DISCRIMINATION IN
VIOLATION OF THE CFRA;
9. RETALIATION IN
VIOLATION OF THE CFRA;
10. RETALIATION IN
VIOLATION OF LABOR CODE § 1102.5 (WHISTLEBLOWER RETALIATION);
11. WRONGFUL TERMINATION
IN VIOLATION OF PUBLIC POLICY;
12. UNFAIR COMPETITION
(BUS. & PROF. CODE § 17200 ET SEQ.); and
13. HOSTILE WORK
ENVIRONMENT IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
MP
Positions
Moving party requests an order compelling arbitration,
and staying or dismissing this action, on grounds including the following:
·
Plaintiff signed a stand-alone Mutual
Agreement to Arbitrate Claims, under which Plaintiff and Defendant mutually
agreed to binding arbitration of any disputes arising out of Plaintiff’s
employment. (Shackleford Decl. at ¶ 4.)
·
The agreement passes all the
unconscionability test factors.
·
No basis exists for revocation of the
agreement.
RP
Positions
Opposing party advocates denying, for reasons
including the following:
·
Defendant required Plaintiff to sign the
Agreement as a condition of his employment. (Silva Decl. ¶¶ 2-3). Additionally,
prior to signing the Agreement, Plaintiff had no opportunity to discuss the
Agreement’s terms with anyone. He simply had to go through this Agreement by
himself, attempting to elucidate its meaning without any assistance or
explanation. (Silva Decl. ¶ 4).
·
The Agreement unfairly limits discovery of
third parties. See Aixtron, Inc. v.
Veeco Instruments Inc., 52 Cal. App. 5th 360 (2020). Should a third party
witness refuse to cooperate in the discovery process during arbitration, or
Defendants have employees that no longer work for Defendants during discovery
or before trial, then Plaintiff will be without recourse to enforce the
witnesses’ cooperation. In state court, Plaintiff would be able to utilize the
Court’s powers to compel witnesses’ participation in discovery. Also, in court, the parties would not be
limited to production requests; rather, the parties would be able to make use
of requests for admission and interrogatories. Further, the Agreement restricts
the parties’ ability to depose other parties and/or witnesses.
Tentative
Ruling
The motion is granted.
Plaintiff and defendants 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 there was no take-it-or-leave it
contract. Plaintiff signed the
arbitration agreement having a last paragraph representing that Plaintiff had
the opportunity to discuss the agreement with any attorney (Plaintiff’s decl., ex A (“MUTUAL AGREEMENT
TO ARBITRATE CLAIMS)).
Alternatively, take-it-or-leave-it arbitration
agreements can be enforceable. "[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.4th 1276, 1292.
Additionally, the Court finds that the inability to
conduct discovery is not substantively unconscionable under the circumstances. "‘[A]dequate’ discovery does not mean
unfettered discovery....'" Fitz
v. NCR Corp. (2004)118 Cal.App.4th 702, 715. An AAA provision allowing arbitrators to
control the extent of discovery did not constitute substantive
unconscionability. See Roman v. Sup. Ct. (2009) 172 Cal.App.4th 1462, 1476.
The cited Baxter opinion was fact-specific
about inadequate discovery in an employment case. “Thus, it was not sufficient simply to claim
that the discovery limitations were unconscionable in the abstract. It was
necessary to make a factual showing that the discovery limitations would as a
practical matter thwart the employee's ability to prove his or her particular
claims.” Baxter v. Genworth North
America Corp. (2017) 16 Cal. App. 5th 713, 729. Here, opposing party has not sufficiently evidenced
how the particular facts indicate an inability to prove the claims. Moreover, the Baxter opinion involved
several types of substantive unconscionability, such that severing out
discovery, and enforcing the rest, would not be possible. Also, distinguishably, the cited Aixtron
opinion did not involve any issue of unconscionability, but instead resolved
arbitration discovery issues. See
Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal. App. 5th 360.
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.