Judge: Peter A. Hernandez, Case: 24STCV11720, Date: 2024-10-02 Tentative Ruling

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Case Number: 24STCV11720    Hearing Date: October 2, 2024    Dept: 34

Alana Trubitz v. Serendipity Labs, Inc. (24STCV11720)  

Defendant Serendipity Labs, Inc.’s Motion to Compel Arbitration is DENIED.

Background

Plaintiff Alana Trubitz (“Plaintiff”) alleges as follows:

Plaintiff was an employee of Defendant Serendipity Labs, Inc. (“Defendant”) from April 23, 2018, until January 22, 2024, when Plaintiff was terminated.

In February 2023, Plaintiff was promoted to Regional Director of Sales and reported to the Vice President of Sales, Jeni Smith (“Smith”). Throughout Plaintiff’s employment, Plaintiff had excelled in her performance and constantly received positive feedback. Nevertheless, in July 2023, Plaintiff was criticized for failing to properly process a work matter and addressed her deficiencies with Smith.

On August 9, 2023, Plaintiff received a Performance Improvement Plan (“PIP”) for not achieving her sales’ quota. Plaintiff expressed her disagreement with the PIP and proposed modifications to it. However, Smith did not follow up with Plaintiff regarding her PIP and neither person signed it. Thereafter, Plaintiff’s progress was not reviewed in accordance with the PIP and there were no subsequent discussions regarding it.  Subsequently, in the fall and December 2023, Plaintiff was recognized as a top seller during several team field calls.

On January 4, 2024, Plaintiff was matched for the adoption of a newborn child from an expectant birth mother with a due date of February 26, 2024. On January 8, 2024, Plaintiff shared this information with Smith and informed her of Plaintiff’s plans to take leave at the end of February 2024. In response, Smith advised Plaintiff to not inform human resources or management of her plans until the adoption was certain. Nevertheless, Plaintiff contacted Defendant’s human resource management company, TriNet HR Corporation (“TriNet”), to inquire about the company’s leave policy. After doing so, Plaintiff concluded that since her leave was foreseeable, it was best for her to notify Defendant’s internal human resources department about her plans.

On January 9, 2024, Plaintiff emailed Taury Phelps (“Phelps”), Human Resource Specialists, notifying her about the adoption and her anticipated leave. Plaintiff expressed her interest in discussing the leave process and enclosed a letter from the adoption agency. Phelps congratulated Plaintiff and assured her of a follow-up regarding her questions. However, Phelps failed to provide any additional information or a response to Plaintiff’s leave request.

On January 22, 2024, Plaintiff was abruptly terminated for “insufficient progress in meeting the performance standards required” for her role. Plaintiff was surprised by her termination as she had not received any follow-up discussions regarding her PIP and had recently been recognized as a top seller.

On May 9, 2024, Plaintiff filed a Complaint asserting the following causes of action against Defendant and Does 1-10:

1.           Violations of California Family Rights Act;

2.           Retaliation in Violation of the California Family Rights Act; and

3.           Wrongful Termination in Violation of Public Policy.  

On June 27, 2024, Defendant filed their Answer to Plaintiff’s Complaint.

On September 5, 2024, Defendant filed their Motion to Compel Arbitration. On September 18, 2024, Plaintiff filed an opposition to Defendant’s Motion. On September 24, 2024, Defendant filed a reply to Plaintiff’s opposition.   

Legal Standard

“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.” (Code Civ. Proc., § 1281.2, subds. (a) and (b).)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) The burden then shifts to the opposing party to prove by a preponderance of the evidence a defense to enforcement (e.g., fraud, unconscionability, etc.) (Id.) “In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

“If a court of competent jurisdiction. . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4).

Discussion

Defendant moves the court for orders compelling arbitration of Plaintiff’s claims and staying all further judicial proceedings in this action pending completion of arbitration.

A.              Evidentiary Objections

Plaintiff’s evidentiary objections to Defendant’s evidence supporting their Motion are overruled.

Defendant’s evidentiary objections to Plaintiff’s declaration are also overruled.

B.              Existence of an Arbitration Agreement

Defendant argues that Plaintiff and Defendant entered into an arbitration agreement on April 24, 2018, when Plaintiff digitally accepted TriNet’s Terms and Conditions Agreement (“TCA”), which included TriNet’s Dispute Resolution Protocol (“DRP”) during Plaintiff’s onboarding documents. (Weiss Decl., ¶¶ 5, 13-14.) Defendant provides evidence of such TCA and DRP. (Id., Exh. A pp. 5-8.) Defendant also provides evidence showcasing Plaintiff’s acceptance of the TCA. (Id., Exh. B.) The DRP provides, in relevant part, as follows:

(a)   How The DRP Applies

Subject to the limitations in subsection (b), this DRP covers any dispute arising out of or relating to your co-employment with TriNet, including your TriNet co-employer, and/or arising out of or relating to your employment with your company, as well as any dispute with an employee, officer, or director of TriNet or of a TriNet customer (all of whom, in addition to TriNet customers, are intended to be beneficiaries of this DRP) (“covered dispute”). The Federal Arbitration Act applies to this DRP. Also, any applicable internal procedures for resolving disputes (e.g., procedures in the employee handbook for complaining about, and addressing complaints about, misconduct), as well as the option of mediation, will continue to apply with the goal being to resolve disputes before they are arbitrated. This DRP will survive termination of the employment relationship. With only the exceptions described below, arbitration will replace going before a court for a judge or jury trial, and even in the situations described below, NO JURY TRIAL WILL BE PERMITTED, unless applicable law does not allow enforcement of a pre-dispute jury trial waiver in the particular circumstances presented.

(b)  Limitations On How The DRP Applies

The mandatory arbitration requirement of this DRP does not apply to claims for workers’ compensation, state disability insurance or unemployment insurance benefits, nor does it apply to claims against a federal contractor if such claims are not subject to pre-dispute mandatory arbitration agreements, nor to claims properly made pursuant to a collective bargaining agreement’s dispute resolution procedure if you are represented by a union and the dispute resolution procedure in the collective bargaining agreement conflicts with this DRP. The mandatory arbitration requirement does not prevent a party from bringing complaints, claims or charges before the Equal Employment Opportunity Commission, the U.S. Department of Labor, the National Labor Relations Board, or the Office of Federal Contract Compliance Program, and does not prevent a party from bringing claims in any forum as provided in Public Laws 111-203, 111-118 & 112-10. Further, claims may be brought before any other administrative agency, provided applicable law does not preclude the right to bring claims there when there is a mandatory arbitration agreement.

If at the time of a covered dispute there is an agreement between you and your company governing the resolution of the covered dispute, then to the extent inconsistent with this DRP, that agreement will be controlling as between you and your company (and its employees, officers, and agents). The applicability of this DRP to covered disputes between you and TriNet (and its employees, officers, and agents) will be unaffected by the existence of an agreement between you and your company regarding dispute resolution.

This DRP does not excuse a requirement that a party exhaust administrative remedies before initiating the DRP to resolve a covered dispute.

(Id., Exh. A pp. 5-6 [emphasis in original].)

Plaintiff argues that Defendant failed to provide sufficient evidence to prove the existence of an arbitration agreement as there is no evidence that Plaintiff’s purported electronic acknowledgement of the TCA was the act of Plaintiff. (Opp., 5:8-11.) Plaintiff also argues that the DRP is unconscionable, both procedurally and substantively, thus unenforceable. (Id., 5:11-12.) Lastly, Plaintiff argues that the DRP is so unconscionable that the interests of justice would not be furthered by severance. (Id., 5:12-14.)

C.              Plaintiff’s Acknowledgement

Defendant alleges that TriNet oversees the onboarding process of its employees through a password-protected platform. (Weiss Decl., ¶ 6.) As part of the onboarding process, TriNet sends new employees a “Welcome” email to their provided email address which allows employees to set up their account’s login information and additional security questions. (Id., ¶ 7.) Defendant alleges that an employee’s login information remains strictly confidential, and that Defendant does not have access to change an employee’s password. (Id., ¶ 8.) Additionally, Defendant alleges that TriNet cannot directly access an employee’s account or perform any function within TriNet’s platform as the user. (Ibid.) Defendant alleges that once an employee’s profile is complete, each employee is presented with the full text of the TCA for them to review and accept. (Id., ¶ 9.) To accept the TCA, Plaintiff was required to enter an email address at the bottom of the screen and click an “I Accept” button. (Ibid.) Defendant provides a copy of Plaintiff’s TriNet account that shows that she accepted the TCA, including the DRP, on April 24, 2018. (Id., ¶ 13, Exh. B.) Defendant further alleges that once an employee accepts the TCA, TriNet’s system generates and sends an email to the employee’s email address confirming their acceptance. (Id., ¶ 15.) This email also attaches a PDF copy of the TCA that the employee accepted. (Ibid.) Defendant provides a copy of the email sent to Plaintiff confirming her acceptance of the TCA, including the DRP, on April 24, 2018. (Id., Exh. C.)

Plaintiff argues that even after reviewing Exhibit A in the Declaration of Elizabeth Weiss, Plaintiff cannot “recall seeing, reading, or being presented” with the TCA, including the DRP during Plaintiff’s onboarding process. (Trubitz Decl., ¶¶ 6-7.) Additionally, Plaintiff argues that she does not recall receiving clear notice about the existence of an arbitration agreement in the online boarding system. (Id., ¶ 9.) As such, Plaintiff contends that Plaintiff’s inability to recall accepting the TCA is sufficient to create a factual dispute about the existence of an enforceable arbitration agreement, shifting the burden back to Defendant to show otherwise. (Opp., 7:19-23.)

Additionally, Plaintiff argues that Defendant fails to meet their evidentiary burden that the electronic record was the act of Plaintiff. (Opp., 7:24-25.) Plaintiff cites Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 to argue that “the Court looks to factors such as: (1) the privacy of an employee’s user name, (2) the requirement that the employee reset his password before accessing the system, (3) the existence of a signature line containing the signatory’s typed full name, (4) identification of the time the document was electronically signed, and (5) an IP address identifying the location where it was signed” to determine whether the employee was the one to sign the disputed arbitration agreement. (Id., 7:26-28, 8:1-8.) Plaintiff argues that since Defendant does not produce any evidence that Plaintiff is the one who reset her password, that the TCA had a signature line with Plaintiff’s full printed name, the time that the TCA was signed, or any IP address, Defendant fails to authenticate Plaintiff’s acceptance as hers. (Id., 8:9-12.)

Plaintiff also argues that Defendant failed to authenticate Plaintiff’s acceptance of the TCA by: (1) failing to produce the actual “Welcome” email between TriNet and Plaintiff and how Plaintiff’s identity was verified as the person who accessed the TriNet platform; (2) Defendant’s declarations in support of their Motion are subject to evidentiary objection; (3) Defendant does not demonstrate the progression through the TCA and DRP to show the actual prompts Plaintiff would have encountered during the onboarding process, (4) there is no supporting documentation authorizing the use of electronic signatures; and (5) the purported exhibit showing Plaintiff’s acceptance of the TCA and DRP does not reference either document, does not bear any file names, lacks an electronic signature bearing Plaintiff’s name, has no time stamp, and has no IP address. (Id., 8:15-28, 9:1-22.)

Lastly, Plaintiff argues that no arbitration agreement exists since there was no mutual assent to the TCA and DRP as Plaintiff understood that the documents she accessed pertained solely to the use of the TriNet portal and TriNet’s specific functions of providing payroll and employee benefits. (Opp., 10:8-22; Trubitz Decl. ¶ 3.) Plaintiff contends that if she would have known that she had the option to not waive her right to a jury trial without jeopardizing her employment with Defendant, Plaintiff would not have signed any documents that waived her right to a jury trial. (Opp., 10:8-22)

The court finds that Defendant has met its initial burden of proving the existence of an arbitration agreement between the parties wherein the parties agreed to arbitrate this dispute by providing Exhibits A and B in the Declaration of Elizabeth Weiss. The burden thus shifts to Plaintiff, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges.

As such, the court finds that Plaintiff’s arguments are insufficient to challenge the enforceability of the TCA and DRP. Plaintiff’s inability to remember whether she accepted the TCA back in 2018 does not override Defendant’s evidence showing otherwise.

Additionally, Plaintiff’s use of Espejo fails to recognize that the court in that case looked at factors to find that the employee’s electronic signature was theirs and not at requirements to authenticate the signature. “In Espejo, the court found the defendants met their burden in showing the electronic signature was authentic as the defendant ‘detailed [defendant]'s security precautions regarding transmission and use of an applicant's unique user name and password, as well as the steps an applicant would have to take to place his or her name on the signature line of the employment agreement....’” (Lorenzo Smith v. Rent-A-Center, Inc. (2019) 1:18-CV-01351 LJO JLT (citing Espejo, supra, 246 Cal.App.4th at p. 1062.) As such, Defendant’s failure to provide evidence of anything more than the information purported on Elizabeth Weiss’ declaration regarding the process every employee undergoes to accept the TCA and DRP and Exhibits B and C, does not render the arbitration agreement inexistent. Defendant’s evidence meets the threshold found in Espejo.

Plaintiff’s five arguments that Defendant failed to authenticate Plaintiff’s acceptance of the TCA are similarly insufficient since Defendant is not required to show such specific information. It is sufficient for Defendant to present a copy of the arbitration agreement to the Court to meet their burden and show that an arbitration agreement exists. (See Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218, 105 Cal.Rptr.2d 597.)

Similarly, Plaintiff’s argument that there was no meeting of the minds due to Plaintiff’s unawareness that the TCA contained an arbitration agreement does not challenge the existence of the TCA and DRP. An agreement does not cease to exist solely due to a party’s lack of awareness as to what they are agreeing to. “Ordinarily when a person with capacity of reading and understanding an instrument signs it, he may not, in the absence of fraud, imposition or excusable neglect, avoid its terms on the ground he failed to read it before signing it.” (Ramirez v. Superior Court (1980) 103 Cal.App.3d 746, 754 [citation omitted].) “No law requires that parties dealing at arm’s length have a duty to explain to each other the terms of a written contract . . . Reliance on an alleged misrepresentation is not reasonable when plaintiff could have ascertained the truth through the exercise of reasonable diligence. [Citation.] Reasonable diligence requires the reading of a contract before signing it. A party cannot use his own lack of diligence to avoid an arbitration agreement. [Citation.]” (Rowland v. PaineWebber Inc. (1992) 4 Cal.App.4th 279, 286.)

Thus, the Court finds that an arbitration agreement between the parties exists.

D.              Enforceability – Unconscionability

“Agreements to arbitrate may be invalidated if they are found to be unconscionable.” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 713, citations omitted.)

“Unconscionability consists of both procedural and substantive elements. The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided. (Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC (2012) 55 Cal.4th 223, 246 [citations omitted].)

“‘The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.’ But they need not be present in the same degree. ‘Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.’ In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114, [cleaned up], italics in original, abrogated in part on other grounds by AT&T Mobility LLC v. Concepcion (2010) 565 U.S. 333.).)

“The party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle, supra, 55 Cal.4th at p. 247, citation omitted.)

“Moreover, courts are required to determine the unconscionability of the contract ‘at the time it was made.’” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 920, quoting Civ. Code, § 1670.5.)

“Unconscionability is ultimately a question of law.” (Patterson v. ITT Consumer Fin. Corp. (1993) 14 Cal.App.4th 1659, 1663, citation omitted.)

Plaintiff argues that the DRP is both procedurally and substantively unconscionable and, therefore, unenforceable. (Opp., 10:24-28, 11:1-17.) 

1.               Procedural Unconscionability

“[P]rocedural unconscionability requires oppression or surprise. Oppression occurs where a contract involves lack of negotiation and meaningful choice. Surprise where the allegedly unconscionable provision is hidden within a prolix printed form.” (Pinnacle, supra, 55 Cal.4th at p. 247 [cleaned up].)

Plaintiff argues that the DRP is “unquestionably adhesive” since there is a significant economic disparity between Defendant and Plaintiff that led to unequal bargaining power. (Opp., 12:5-11.) Plaintiff argues that she did not have any meaningful opportunity to negotiate or reject the terms of the DRP and it was presented in a mandatory click-through format as a prerequisite for accessing TriNet’s services for payroll and employee benefits. (Ibid.) Plaintiff argues that the TCA and DRP had a “take-it-or-leave-it” approach and refusing to accept the terms would have jeopardized her employment with Defendant. (Ibid.)

Additionally, Plaintiff argues that the DRP was procedurally unconscionable because of surprise since it was buried within an 8-page document. (Id., 12:12-23.) Plaintiff notes that the DRP was not made to stand out among the rest of the contents in the TCA. (Ibid.) Moreover, Plaintiff argues that the DRP failed to indicate that by accepting, Plaintiff would be obligated to arbitrate her claims even for matters unrelated to payroll or her employee benefits as she assumed. (Id., Trubitz Decl. ¶ 3.) Lastly, Plaintiff argues that the TCA acceptance confirmation email Plaintiff received did not mention the DRP adding to the lack of transparency which makes the DRP procedurally unconscionable. (Opp., 12:15-23.)

“[A] compulsory pre-dispute 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.) However, the fact that an arbitration agreement is mandatory for employment may be a factor in determining that it is procedurally unconscionable. (See, e.g., Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 393; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114-115.) Where a contract of adhesion includes the unequal bargaining power of contracting parties, with the weaker party's inability to negotiate, this may indicate procedural unconscionability in the form of oppression. (See Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.)

Although, Defendant’s TCA and DRP cannot be held unenforceable merely because it is required as a condition of employment, the additional lack of transparency as argued by Plaintiff does render it procedurally unconscionable. Defendant did not take any additional steps to highlight to Plaintiff that she was signing an arbitration agreement in either the TCA itself, the onboarding process, or the confirmation email Plaintiff received.

As such, the court finds the TCA and DRP procedurally unconscionable.

2.               Substantive Unconscionability

“‘Substantive unconscionability’ focuses on the terms of the agreement and whether those terms are ‘so one-sided as to “shock the conscience.”’ (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330 (citations omitted).) A contractual provision that is substantively unconscionable may take various forms, but may generally be described as unfairly one-sided. (Id.) The paramount consideration in assessing [substantive] conscionability is mutuality. (Id.)

Plaintiff argues that the DRP is substantively unconscionable because it allows for arbitration “by TriNet, Tri-Net’s co-employers, TriNet’s employees, officers, directors, customers, and the employee’s employer of nearly any conceivable claim that may arise out of the employee’s employment.” (Opp., 13:3-10.) Plaintiff argues that these terms are unreasonably favorable for Defendant. (Ibid.)

Additionally, Plaintiff argues that the TCA and DRP lack mutuality in its application since TriNet and its third-party beneficiaries make no mutual promise to arbitrate all disputes which they may have against Plaintiff and the TCA is unsigned by either TriNet or Defendant. (Id., 13:21-25.)

Lastly, Plaintiff argues that since the DRP does not provide that Defendant would pay for the arbitrator and arbitration fees where someone else other than TriNet or a TriNet customer seeks to enforce the arbitration agreement. (Id., 13:26-28, 14:1-12.) The DRP states that “[i]n all cases where the law requires it, TriNet (and, if applicable, any TriNet customer or employee(s) of either TriNet or a TriNet customer interested in enforcing this DRP for its/their own benefit), will pay the arbitrator’s and arbitration fees.” (Weiss Decl., Exh. A pp. 7-8.) Plaintiff contends that although Defendant has now confirmed that it will pay the costs associated with arbitration in this case, it does not eliminate the substantive unconscionability found in the DRP as written. (Opp., 14:8-12.)

The court finds that the DRP is substantively unconscionable since its terms are clearly one sided in favor of Defendant and leaves Plaintiff responsible for arbitration costs even if she had decided to comply with the DRP in the first place. Although there is confirmation that Defendant would cover all arbitration expenses as noted in paragraph 3 and Exhibit 2 of Adam Grable’s declaration, the court is “…required to determine the unconscionability of the contract ‘at the time it was made.’” (Sanchez, supra, 61 Cal.4th at p. 920.) As such, the fee bearing terms of the DRP are substantively unconscionable.

Additionally, the DRP leaves Plaintiff vulnerable to arbitration if she were to raise any claim against Defendant, TriNet, or any of TriNet’s beneficiaries which is an unreasonably large scope of possible defendants that Plaintiff would be required to arbitrate with without requiring the same from them when claims against Plaintiff arise. As such, the lack of equal benefits and burdens among Defendant and Plaintiff found in the DRP renders it substantively unconscionable.

As such, the court finds the TCA and DRP substantively unconscionable.

Severability  

“Where an ‘arbitration agreement contains more than one unlawful provision,’ that factor weighs against severance.” (Penilla v. Westmont Corp. (2016) 3 Cal.App.5th 205, 222, quoting Armendariz, supra, 24 Cal.4th at pp. 124–125.) “[U]pholding this type of agreement with multiple unconscionable terms would create an incentive for an employer to draft a one-sided arbitration agreement in the hope employees would not challenge the unlawful provisions, but if they do, the court would simply modify the agreement to include the bilateral terms the employer should have included in the first place.” (Mills v. Facility Sols. Grp., Inc. (2022) 84 Cal.App.5th 1035, 1045.)

Due to the magnitude of substantively unconscionable terms found in the DRP, the court does not find that severing those terms would be appropriate. Further, choosing to sever multiple clauses would encourage the drafters of arbitration agreements to include as many unconscionable clauses as possible, knowing courts might catch some but not all of them.

The court does not sever any portions of the DRP.

The court finds that Plaintiff has met her burden to show that the purported arbitration agreement is unconscionable and thus unenforceable.

Conclusion

Defendant Serendipity Labs, Inc.’s Motion to Compel Arbitration is DENIED.