Judge: Michael J. Strickroth, Case: 2022-01284290, Date: 2023-08-14 Tentative Ruling
Motion to Compel Arbitration
Defendants’, Tawa Supermarket. Inc. and Phil Tian, Motion to Compel Arbitration and Stay Action is DENIED.
Defendants’, Tawa Supermarket. Inc. and Phil Tian, Objections 1-3 are OVERRULED.
Because defendants replied on the merits, objection to the late filing of the Opposition is waived. The Court has considered all papers filed by the parties.
Was there an agreement to arbitrate?
Under Code of Civil Procedure §1281.2, the court “shall” grant the motion if it determines that a written agreement to arbitrate exists.
Plaintiff makes two arguments attacking the showing of the existence of the Agreement. The first is the document has not been properly authenticated. The second is there was no mutual asset because the document presented to Lopez Cruz was in English, and Plaintiff does not read or understand English. Spanish is his native language.
With respect to authentication, Lopez Cruz does not say in his Opposition the signature on the document is not his. Indeed, he admits he signed the Agreement even though he did not know what it was. [Opposition, Lopez Declaration, ¶6] Whether or not he understood it, he admits he signed it. That is sufficient authentication.
The issue of mutual assent is based upon the argument that Lopez did not understand what he was signing because the document was not in Spanish. Plaintiff cites Carmona v. Lincoln Millennium Car Wash, Inc. (2014), 226 Cal.App.4th 74 for the proposition that when an employer fails to translate an arbitration agreement into Spanish it “hid[es]” the terms of the Agreement from an employee who requires Spanish translation. Id., at 85. While the court’s statement is made in the context of unconscionability, the analysis also supports a lack of mutual assent.
In Reply, moving party ignores Carmona. Instead, it relies on cases which predate Carmona that do not address the employment context. In general, defendants’ position is if you sign an agreement you are bound, even if you did not read it or understand it. None of the cases cited address the issue presented here, someone who asserts he couldn’t read or understand it because it was, for him, a foreign language.
Defendants have the burden of establishing an enforceable Agreement. Mutual assent is part of that. Whether ultimately credible or not to a jury, Lopez Cruz’s declaration shows that defendants have not established by a preponderance of the evidence the existence of mutual assent necessary for an arbitration agreement.
Is the Agreement unconscionable?
As far as procedural unconscionability is concerned, Carmona states the failure to translate an arbitration agreement into Spanish for someone who needs it to be, shows a “high degree” of procedural unconscionability. Id., at 85.
However, in order for the Agreement to be unenforceable because of unconscionability, there must also be substantive unconscionability. Both procedural and substantive unconscionability must be present before a court can refuse to enforce an arbitration provision based on unconscionability. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power; substantive unconscionability focuses on overly harsh or one-sided results. Sonic-Calabasis A., Inc. v. Moreno I (2013) 57 Cal.4th 1109, 1133. Unconscionability is determined on a sliding scale. “The more substantively oppressive the contract, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Armendariz, supra, at 114.
The burden of proving unconscionability rests on the party asserting it. Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 889, 912.
“[T]he paramount consideration in assessing [substantive] unconscionability is mutuality.” Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th1267, 1282. Here, the Agreement requires Lopez Garcia to arbitrate “all disputes, controversies or claims between concerning [word omitted in original]Employee’s application for employment, his/her employment with the Company or its termination including, without limitation” claims arising in contract, tort, or statute. There is no reciprocal statement that Tawa will be bound to arbitrate any and all claims it may have against Lopez Cruz. The Agreement is completely silent on its obligation to arbitrate. Thus, the obligation to arbitrate is not mutual.
Because there is both procedural and substantive unconscionability, the Agreement is unenforceable. The Motion should be DENIED.
Plaintiff to give notice.
Case Management Conference
Regardless whether the parties submit on the tentative, counsel are required to attend the Case Management Conference, either remotely or in person.