Judge: Nathan R. Scott, Case: Figueroa v. Ghorbanian Professional Dental, Date: 2022-11-18 Tentative Ruling

Defendants Ghorbanian Professional Dental Corporation, AAVA Dental, Abraham Ghorbanian, and Garima Mehrotra’s motion to compel arbitration is granted.  (Code Civ. Proc., § 1281.2.) 

Plaintiff Jessica Figueroa shall submit her claims against defendants to binding arbitration pursuant to their agreement.

This action is stayed pending completion of arbitration.  (Code Civ. Proc., § 1281.4.) 

The court sets a status conference re binding arbitration for 8/24/23 at 2 pm.

Defendants met their initial burden to show a written arbitration agreement exists that covers plaintiff’s claims.  (Code Civ. Proc., § 1281.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-166 [“three-step process”]; see also 6/13/22 Mazarei decl. Ex. 5 [agreement]; 9/9/22 Mehrotra decl. ¶¶ 3-8 [authenticating agreement]; 10/16/22 minute order [noting plaintiff concedes signing agreements].) 

On the one hand, plaintiff has shown some procedural unconscionability as the agreement is an adhesive employment condition.  (See OTO LLC v. Kho (2019) 8 Cal.5th 111, 126; McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 91; see also Figueroa decl., ¶¶ 5-9.)  Defendant also failed to provide the Judicate West rules (see Carbajal v. CWPSC Inc. (2016) 245 Cal.App.4th 227, 244), though plaintiff does not assert any “substantive unfairness of a term ... contained within” the rules.  (Davis v. Kozak (2020) 53 Cal.App.5th 897, 909.)

But plaintiff has not shown a sufficient degree of substantive unconscionability to render the agreement unenforceable.  (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th. 83, 114.)  

First, plaintiff has not shown a significant danger of the  “repeat player” effect.  There is no evidence of how many mediators Judicate West has in Orange County or how often defendant uses them.  (Cf. Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 178-179 [agreement specified pool of 8 mediators].)

Second, plaintiff has not shown the discovery limitation is unconscionable.  Parties may “agree to something less than the full panoply of discovery provided in section 1283.05.”  (Armendariz, supra, 24 Cal.4th at pp. 105–106.)  Here, the agreement is expressly coextensive with Code of Civil Procedure section 1283.05.  The reference to possible amendment is not vague; only the Legislature can amend a statute.  The agreement does not limit the type or amount of discovery or force plaintiff to meet any heightened standard for discovery.  (Cf. De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 487-490.)

Third, plaintiff has not shown the agreement fails to provide for sufficient judicial review.  Rather, it requires that the arbitrator “shall issue a written arbitration decision stating the arbitrator’s essential findings and conclusions on which any award is based.”  (Mazarei decl., Ex. 5, § 1, subd. (j); cf. Armendariz, supra, 24 Cal.4th at p. 107 [in order to accomplish proper judicial review, “an arbitrator in a FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based”].) 

Fourth, the individual defendants may enforce the agreement.  As plaintiff’s cited case notes: “in varying circumstances, California courts have repeatedly enforced arbitration agreements against and in favor of persons who never agreed to arbitrate the dispute.”  (Matthau v. Superior Court (2007) 151 Cal.App.54th 593, 599.)  When an employer and its employees are sued, the employees may enforce the employer’s arbitration agreement.  (See Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, 788].)

Finally, plaintiff has not shown the class action waiver is unconscionable under the Gentry test, which governs when the FAA does not apply.  (See Muro v. Cornerstone Staffing Solutions, Inc. (2018) 20 Cal.App.5th 784 792-795; see also see Mills v. Facility Solutions Group, Inc. (2022) ___ Cal.App.5th ___, 2022 WL 16569298 [FAA preemption of class action waiver ban].)

Plaintiff’s objection to defendants’ 11/9/22 supplemental brief is sustained.  The court reset the matter for additional oral argument based on the completed briefing.  (See 10/16/22 minute order.)

Defendants shall give notice.