Judge: Melvin D. Sandvig, Case: 22CHCV00122, Date: 2023-02-22 Tentative Ruling

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Case Number: 22CHCV00122    Hearing Date: February 22, 2023    Dept: F47

Dept. F47

Date: 2/22/23

Case #22CHCV00122

 

MOTION TO COMPEL ARBITRATION

 

Demurrer filed on 1/5/23.

 

MOVING PARTY: Plaintiff David Gomez

RESPONDING PARTY: Defendant Thibiant International Inc.

NOTICE: ok

 

RELIEF REQUESTED: An order compelling Defendant Thibiant International Inc. to arbitrate all claims in this matter pursuant to the Federal Arbitration Act (FAA – 9 USC 1, et seq.) and the California Arbitration Act (CAA – CCP 1281, et seq.) and to stay all judicial proceedings pending the completion of the arbitration. 

 

RULING: The unopposed motion is granted.

 

This action arises out of Plaintiff David Gomez’s (Plaintiff) employment with Defendant Thibant International, Inc. (Defendant).  Plaintiff alleges that he worked for Defendant for approximately three years and during that time he was discriminated against based on national origin/race and a medical disability.  Plaintiff further alleges that he was constructively discharged from his employment. 

 

On 2/24/22, Plaintiff filed his complaint against Defendant for: (1) Constructive Discharge; (2)   Harassment in Violation of FEHA; (3) Failure to Prevent Discrimination and Harassment (FEHA); (4) Breach of Implied Covenant of Good Faith and Fair Dealing; (5) Race Discrimination; (6) Failure to Prevent Race-Based Discrimination; (7) Retaliation; (8) Medical Disability Discrimination; (9) Failure to Provide Reasonable Accommodation in Violation of FEHA and (10) Intentional Infliction of Emotional Distress.  On 11/18/22, Defendant’s demurrer to the 8th and 9th causes of action was sustained with 30 days leave to amend and Defendant’s demurrer to the 10th cause of action was overruled.  (See 11/18/22 Minute Order).    

 

On 12/15/22, Plaintiff filed his First Amended Complaint alleging the same ten causes of action as the original Complaint.  On 1/5/23, Plaintiff filed the instant motion seeking an order compelling Defendant to arbitrate all claims in this matter pursuant to the Federal Arbitration Act (FAA – 9 USC 1, et seq.) and the California Arbitration Act (CAA – CCP 1281, et seq.) and to stay all judicial proceedings pending the completion of the arbitration.  On 1/5/23, Plaintiff also filed an ex parte application for an order to stay all proceedings pending determination of the motion to compel arbitration.  Defendant opposed the ex parte application on the ground that there was no basis for ex parte relief.  (See Opposition to Ex Parte Application filed on 1/6/23).  On 1/9/23, the Court denied the ex parte application, but advanced the hearing date on the instant motion from 3/27/23 to 2/22/23.  (See 1/9/23 Minute Order).  Defendant has not filed or served an opposition to the instant motion.  (See Notice of Non-Opposition filed by Plaintiff on 2/14/23). 

 

CCP 1281 provides:

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”

 

See also 9 U.S.C. §2.

 

CCP 1281.2 provides in relevant part:

 

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; or

(b) Grounds exist for rescission of the agreement.”

 

Here, Plaintiff alleges that that he and Defendant entered into an oral employment contract in or around November 2017.  (FAC ¶12).  Thereafter, during discovery, Plaintiff became aware of a written employment agreement between the parties entered in May 2019.  (Oronsaye Decl. ¶¶3-7, 12, Ex.101 thereto).  

 

The written employment agreement provides:

 

“Any dispute arising between you and Thibiant will be resolved by arbitration in accordance with Thibiant’s Arbitration Policy which is included in the Employee Handbook that you will receive.  By accepting this offer, you agree to waive your right to a court or jury trial, and you acknowledge that all claims that may lawfully be resolved by arbitration will be decided by a neutral arbitrator whose decision will be final and may not be appealed.”

 

(Oronsaye Decl. ¶12, Ex.101, p.2).

 

In the motion, Plaintiff does not directly allege that he made a request to Defendant that it agree to submit this dispute to arbitration and Defendant refused to arbitrate.  See CCP 1281.2.  However, Defendant did oppose the ex parte application regarding the stay pending the hearing on this motion and has not indicated that it will submit to arbitration.  On the other hand, as noted above, Defendant has not filed an opposition or any other response to the instant motion. 

 

The Court finds that there is valid and enforceable arbitration agreement between the parties.  Additionally, the Court finds that Plaintiff has not waived the right to compel arbitration.  Plaintiff has provided an adequate explanation for his failure to request arbitration before or at or around the time this case was filed.  The motion explains that Plaintiff did not recall signing the agreement and did not have a copy of it until Defendant produced it at Plaintiff’s deposition in October 2022.  (Oronsaye Decl. ¶¶4-7).  Additionally, the Court finds that Plaintiff’s participation in this action up to this point does not constitute a waiver of his right to compel arbitration.  Further, the Court finds no grounds exist to rescind the arbitration agreement.  It appears that Defendant was aware of the arbitration agreement and failed to provide same to Plaintiff earlier, despite requests for employment documents before his deposition.  (Oronsaye Decl. ¶¶6, 13, 14 and Ex.102-103 attached thereto).  Based on the foregoing and the lack of opposition to the motion by Defendant, the Court finds no prejudice to Defendant by the delay in submitting this dispute to arbitration.  See Quach (2022) 78 CA5th 470, 484.    

 

Based on the foregoing, the parties are ordered to submit the disputes presented in this action to arbitration in accordance with Defendant’s Arbitration Policy included in the Employee Handbook.  This action is stayed pending the resolution of the arbitration.  CCP 1281.4.