Judge Randolph M. Hammock, Case Number: 24STCV03564, Date: 2024-06-21 Tentative Ruling

Judge: Randolph M. Hammock, Case: 24STCV03564, Date: 2024-06-21 Tentative Ruling

Plaintiff Elham Rad worked for Defendant Sinai Temple as a Judaic studies teacher. Plaintiff is a Persian woman who suffers from hearing loss. Plaintiff alleges Defendants terminated her employment based on her disability and national origin. She asserts causes of action for (1) wrongful termination, (2) whistle-blower retaliation, (3) defamation, (4) compelled self-defamation, (5) IIED, and (6) violation of right to privacy.

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.)

“[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.)

Defendants have 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.)

Defendants have provided a declaration from Geoff Fischer, the Director of Human Resources at Sinai Temple. (Fischer Decl. ¶ 1.) Fischer attests that Plaintiff electronically signed yearly agreements to arbitrate, including for the recent 2022-2023 and 2023-2024 academic years. (Id. ¶¶ 2, 27; Exhs. I, L.)

The 2023-2024 arbitration agreement provides: “To the fullest extent permitted by law, all disputes between Employee (including Employee's attorneys, successors, and assigns) and Employer (including Employer's current and former affiliates, shareholders, directors, officers, supervisors, managers, employees, agents, successors, attorneys, and assigns) relating in any manner whatsoever to the employment or termination of Employee, including, without limitation, all disputes arising under this Agreement and/or the Employment Agreement, ("Arbitrable Claims") shall be resolved by binding arbitration under the FAA before a single neutral arbitrator.” (Fischer Decl., Exh. L, “Arbitration Agreement,” ¶ 3.)

Based on this evidence, Defendants have demonstrated the existence of an agreement to arbitrate that applies to the dispute here. (See California Corr. Peace Officers Assn. v. State of California (2006) 142 Cal. App. 4th 198, 205 [“Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration”].)

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.)

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.)

First, Plaintiff argues the agreement is procedurally unconscionable because it was a contract of adhesion—it was offered as a condition of employment and she had no ability to negotiate its terms. “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]. (Id. at 113).

Relatedly, Plaintiff argues there existed “an inequality of bargaining power.” In her declaration, Plaintiff attests she is “not a native English speaker” and is “not familiar with English legal terminology.” (Rad Decl. ¶ 3.) Plaintiff attests that she “truly believed that [she] was required by law to sign [her] annual employment agreement, including all of its subparts, in order to keep [her] job through the following school year.” (Id. ¶ 5.) She also attests that she did not have the opportunity to skip the arbitration agreement when signing her yearly employment documents. (Id. ¶ 6.)

The court agrees with Plaintiff that the dynamic here represents a classic contract of adhesion—though little more than is seen in the typical employer-employee context. Therefore, the “take it or leave it” nature of the agreement is sufficient to establish “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.)

Plaintiff first argues the agreement is substantively unconscionable because it is of indefinite duration. The Agreement here provides that “[t]his Agreement shall continue in full force and effect for the duration of Employee's employment by Employer and survives after the termination of the Employee's employment.” (Fischer Decl., Exh. L, “Arbitration Agreement, Exh. A.)

In support, Plaintiff relies on only Cook v. Univ. of S. California, 321 Cal. Rptr. 3d 336, 347 (Ct. App. 2024). There, the Court of Appeal affirmed the trial court’s finding that an arbitration agreement was substantively unconscionable because it purported to survive indefinitely following the employee’s termination, and expressly stated the agreement could only be revoked or modified in writing.

However, the case is distinguishable from the one here. In Cook, the agreement to arbitrate applied only to employment disputes, but also to those unrelated to her employment. (Id. at 346 [“It is difficult to see how it is justified to expect Cook—as a condition of her employment at the university—to give up the right to ever sue a USC employee in court for defamatory statements or other claims that are completely unrelated to Cook's employment.”].) It was in this broad context that the Court held the unending duration of the agreement was substantively unconscionable.

The arbitration agreement here, on the other hand, is significantly narrowed, as it applies only to claims “relating in any manner whatsoever to the employment or termination of Employee.” (Fischer Decl., Exh. L, “Arbitration Agreement, Exh. A, ¶ 3.) This court therefore finds the duration here is not substantively unconscionable, as the agreement is limited to only the employment context.

Plaintiff next argues the agreement is substantively unconscionable because it “lacks true mutuality.” Plaintiff asserts that “the agreement does not appear to permit Plaintiff to require third parties to arbitrate their claims against Plaintiff.” (Opp. 10: 25-26.)

Plaintiff again relies on Cook, in which “[t]he agreement require[d] Cook to arbitrate any and all claims she may have against USC ‘or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise”, but did not require USC’s “related entities” to arbitrate their claims against Cook. The Court held this language meant “nonsignatories may enforce an arbitration agreement against a party to the agreement simply by showing they are intended third-party beneficiaries of the arbitration agreement.” (Id. at 349.) But, for Cook “to enforce the arbitration agreement against USC's agents or employees as third-party beneficiaries, she would have to show they actually accepted a benefit under the agreement”—a difficult task. (Id. at 349.)

Here, however, the language of the agreement is entirely mutual. It states that “all disputes between Employee (including Employee's attorneys, successors, and assigns) and Employer (including Employer's current and former affiliates, shareholders, directors, officers, supervisors, managers, employees, agents, successors, attorneys, and assigns) relating in any manner whatsoever to the employment or termination of Employee…shall be resolved by binding arbitration…” (Fischer Decl., Exh. L, “Arbitration Agreement, Exh. A, ¶ 3.) Importantly, the agreement then goes on to state that “[a]ll persons and entities specified in the preceding sentence—i.e. Defendant’s “affiliates, shareholders, directors, officers, supervisors, managers, employees, agents, successors, attorneys, and assigns”—shall be “considered third-party beneficiaries of the rights and obligations created by this Agreement and shall be included in the definitions of ‘Employer’ and ‘Employee’ as applicable.” (Id.)

In other words, Plaintiff can compel any third-party beneficiary of the agreement to arbitrate the dispute, because under the plain language of the agreement, said beneficiaries essentially sit in the shoes of the employer. Therefore, the agreement is mutual and not substantively unconscionable.

Finally, Plaintiff argues the motion should be denied in order to avoid inconsistent rulings. Plaintiff asserts that the individual Defendant, Irit Eliyahu, “cannot compel arbitration between herself and Plaintiff.” (Opp. 11: 23-24.)

However, Defendant Eliyahu is one of Defendant Sinai Temple’s “current and former affiliates, shareholders, directors, officers, supervisors, managers, employees, agents, successors, attorneys, [or] assigns.” (Fischer Decl., Exh. L, “Arbitration Agreement, Exh. A, ¶ 3.) This makes Defendant Eliyahu a third-party beneficiary of the agreement who can compel or be compelled to arbitrate disputes with Plaintiff. Thus, because Defendant Eliyahu is also subject to arbitration, there is no risk of inconsistent rulings.

Based on the above, Plaintiff has established little to no substantive conscionability. Therefore, under the sliding-scale approach, the Agreement is not unconscionable.

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.