Judge Randolph M. Hammock, Case 22STCV22375 2023-04-17 Tentative Ruling

This is an employment dispute. Plaintiff Luis Mendoza worked for Defendant as a Patcher’s Assistant. In late 2019, Plaintiff underwent heart surgery. This required a multiple-month medical leave. Thereafter, Plaintiff alleges Defendant fired him before he returned to work. Plaintiff brings causes of action for (1) Discrimination in Violation of Government Code section 12940 et seq.; (2) Retaliation in Violation of Government Code section 12940 et seq.; (3) Failure to Prevent Discrimination and Retaliation in Violation of Government Code section 12940, subdivision (k); (4) Failure to Provide Reasonable Accommodation in Violation of Government Code section 12940 et seq.; (5) Failure to Engage in a Good Faith Interactive Process in Violation of Government Code section 12940 et seq.; (6) Violation of California Family Rights Act, Government Code section 12945.2 et seq.; (7) Declaratory Judgement; and (8) Wrongful Termination in Violation of Public Policy.

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353). “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.” (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205).

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] 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.” (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284).

“If a court of competent jurisdiction, whether in this State or not, 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. . . .” (CCP § 1281.4.)

This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (CCP § 437c (q)) or a special motion to strike (CCP § 425.16 (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.

California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. “Even so, parties can only be compelled to arbitrate when they have agreed to do so.” (Avila v. S. California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835, 843.) “The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement.” (Id.)

An arbitration agreement is a contractual agreement. “General contract law principles include that ‘[t]he basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contracting. [Citations.] ... The words of a contract are to be understood in their ordinary and popular sense.” [Citations.] (Garcia v. Expert Staffing W., 73 Cal. App. 5th 408, 412–13.)

Defendant has the initial burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 165.) “[I]t is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215, 218.)

Defendant presents evidence in the form of testimony from Defendant’s Human Resources Assistant, Claudia Perez. Perez attests that she presented all new employees with onboarding documents at the time of their hire, one of which was an Arbitration Agreement. (Perez Decl. ¶¶ 5, 9.) Perez includes a Spanish-language version of the Arbitration Agreement signed by Plaintiff on September 6, 2018. (Id. ¶ 10, Exh. A.) She also includes an unsigned English-language version of the Agreement. (Id., Exh. B.) Perez states she is fluent in both English and Spanish and that “the terms of each version of the Arbitration Agreement[s] are the same.” (Id. ¶ 16.)

In reply, Defendant has also submitted a translated version of the signed Agreement. (See Translator Decl., 4/12/2023.) The translator, Gabriel Mitre, attests to be “a translator fluent in English and Spanish [and] certified by the New York State Unified Court System and the United States Courts.” (Id.) Mitre “declare[d] under penalty of perjury under the laws of the State of California” that the translation is true to the best of the translator’s abilities. (Id.)

Under California Rules of Court, Rule 3.1110(g), “[e]xhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” While the initial English version submitted by Perez may arguably be insufficient, the translated English copy submitted in Reply complies with Rule 31.1110(g). The Court will therefore consider that copy. Contrary to Plaintiff’s position in his supplemental objections, there is apparently no authority requiring that the “qualified interpreter” be qualified in the State of California.

Moreover, this court is aware that as a general rule, new evidence may not be submitted in reply. But “a trial court may properly consider new evidence submitted with a reply brief ‘so long as the party opposing…has notice and an opportunity to respond to the new material.’” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1183.) It appears the translated version submitted in Reply is substantively identical to the original English version submitted with the moving papers—at least where relevant to this motion. Therefore, Plaintiff cannot claim lack of notice of the Arbitration Agreement’s contents. Be that as it may, Plaintiff will be given the opportunity to address the “new evidence” at the hearing, if necessary.

I acknowledge that I have received and reviewed a copy of the Company's Mutual Arbitration Policy ("MAP") and have been provided an opportunity to request and review a Spanish translation as well, and I understand that the MAP is a condition of my employment. I agree that it is my obligation to make use of the MAP and to submit to final and binding arbitration any and all claims and disputes, whether they exist now or arise in the future, that are related in any way to my employment or the termination of my employment with the Company, except as otherwise permitted by the MAP. I understand that final and binding arbitration will be the sole and exclusive remedy for any such claim or dispute against Trencore Plastering, Inc. and Brix Masonry, Inc., or any affiliated companies or entities, and all of their owners, employees, officers, directors or agents (the "Company") and that, by agreeing to use arbitration to resolve my disputes, both the Company and I agree to forego any right we each may have had to a jury trial on issues covered by the MAP . . . .

The Agreement is broad and covers “any and all claims and disputes” related “in any way to my employment or the termination of my employment with the Company.” (Id.) As relevant here, it covers claims of “employment discrimination, harassment or retaliation under…the California Fair Employment and Housing Act.” (Id.)

The Agreement expressly states that arbitration is to be governed by the FAA, and the court will therefore apply the FAA where necessary. (See Davis v. Shiekh Shoes, LLC (2022) 84 Cal. App. 5th 956, 963 [finding the FAA applies “if it is so stated in the agreement.”].)

This switches the burden to Plaintiff, who “bears the burden of producing evidence to challenge the authenticity of the agreement.” (Gamboa, supra, 72 Cal. App. 5th at 165.) Plaintiff can do this in “several ways,” including by “declar[ing] under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.)

In opposition, Plaintiff does not challenge the interpretation of the Agreement, and does not argue that the Agreement cannot cover the dispute here. Instead, he contends that he “do[es] not remember those documents” and “do[es] not remember having signed those documents.” (Mendoza Decl. ¶ 4.) Plaintiff also does not believe the signature on the Agreement is his because he purports to sign his last name “a little differently than that.” (Id.)

And while Plaintiff may not remember the details, he does recall that Defendant “gave [him] some paperwork.” (Mendoza Decl. ¶ 9.) He also recalls that Defendant “left [him] alone at an office to sign” the documents. (Id.) This is consistent with Claudia Perez’s testimony stating that she “provided new hires with the Onboarding Documents” while she “[sat] at [her] desk nearby while they completed and signed the Onboarding Documents.” (Perez Decl. ¶ 5; see Iyere v. Wise Auto Grp. (2023) 87 Cal. App. 5th 747, 756 [evidence insufficient to rebut agreement to arbitrate where employees did not recall reading or signing agreement but acknowledged signing a “stack of documents” at the onset of employment].)

In determining whether Plaintiff signed the agreement by a preponderance of the evidence, this court must necessarily sit as the trier of fact and resolve evidentiary conflicts. (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). Based on a preponderance of the evidence and the totality of the circumstances, this court finds that Defendant has met its burden to “establish with admissible evidence a valid arbitration agreement between the parties.” (Gamboa, supra, 72 Cal. App. 5th at 165.)

In opposition, Plaintiff argues the agreement should be disregarded based on principles of unconscionability. Unconscionability has “both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Sanchez v. Valencia Holding Company, LLC (2015) 61 Cal.4th 899, 910.) Under California law, an arbitration agreement must be in some measure both procedurally and substantively unconscionable in order for the agreement to be unenforceable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 982.) “But they need not be present in the same degree. . . . [T]he 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, supra, 24 Cal.4th at p. 114.)

Plaintiff first argues the agreement is procedurally unconscionable because it was a contract of adhesion. Plaintiff also contends the agreement is procedurally unconscionable because it does not attach the governing arbitration rules.

“The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” [Citation]. (Armendariz, supra, 24 Cal.4th. at 113).

It is undisputed here that Plaintiff was presented with the arbitration agreement as a condition of his employment. Thus, Plaintiff has met his burden to demonstrate that the “take it or leave it” nature of the agreement establishes “some degree of procedural unconscionability.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915). This means the substantive terms of the agreement must be scrutinized to ensure they are not manifestly unfair or one-sided. (Id.)

The failure to attach the rules is not, by itself, enough to invalidate the agreement. (Lane v. Francis Cap. Mgmt. LLC (2014) 224 Cal. App. 4th 676, 690). “The failure to attach a copy of arbitration rules could be a factor supporting a finding of procedural unconscionability where the failure would result in surprise to the party opposing arbitration. (Id.) (Emphasis added.) In Lane, the Court found there was not a “surprise” element when the AAA rules could be accessed on the internet. (Id.) The same is true here.

“The Company and you shall split the costs for bringing your case before the AAA and for the arbitrator’s fees and expenses, but your share of said fees and expenses may not exceed a sum equal to the legal fees charged by the civil court in your jurisdiction. Unless otherwise provided by law, you and the Company shall each be held liable for the fees and expenses of your own legal counsel, if any, and for any other costs and expenses, such as those associated with witnesses or for obtaining copies of hearing transcripts.”

Armendariz provides that the agreement to arbitrate must not “require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th at p. 102.)

While the Agreement here requires that Plaintiff and Defendant split the costs of arbitration, it also contains the qualification that Plaintiff’s share “may not exceed a sum equal to the legal fees charged by the civil court in [his] jurisdiction.” (Id. [emphasis added].) Plaintiff is therefore only required to cover his costs and expenses that he would also have to cover in a judicial forum. (Id.)

Moreover, the Agreement also provides that Plaintiff is liable for his own attorney’s fees, “[u]nless otherwise provided by law.” (Id.) Thus, the agreement complies with Armendariz, as it does not “require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.” (Id.)

Plaintiff also argues the Agreement violates Armendariz because it does not “provide for all types of relief that would otherwise be available in a non-arbitration forum.” (Opp. 12: 15-16.) In particular, Plaintiff notes that the agreement purports to contain a PAGA action waiver.

Putting aside whether this is permissible or not, the fact is immaterial to the instant case. Plaintiff has not brought claims under PAGA. The agreement therefore complies with Armendariz and Plaintiff has shown little, if any, substantive unconscionability.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.