Judge Robert P. Dahlquist, Case 37-2023-00014059-CU-WT-NC 2023-09-01 Tentative Ruling

Judge: Robert P. Dahlquist, Case: 37-2023-00014059-CU-WT-NC, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - September 01, 2023

09/01/2023 01:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited Wrongful Termination Motion Hearing (Civil) 37-2023-00014059-CU-WT-NC VELAZQUEZ VS. PLUG CONNECTION, LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/08/2023

Defendant Plug Connection, LLC's motion to compel arbitration (ROA # 27) is granted.

Defendant's request for judicial notice dated August 8, 2023 (ROA # 31) is granted.

On April 4, 2023, plaintiff filed a complaint asserting causes of action for disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, harassment based on physical disability, failure to prevent harassment and discrimination, negligent hiring, retention, and supervision, wrongful termination in violation of public policy, IIED, and violation of Labor Code §§ 201, 203, 208.

ROA # 1.

Plaintiff alleges that she was a seasonal employee for defendant from December 2021 until June 2022 and then again in December 2022 until her employment was terminated later that month. Plaintiff alleges that she began to experience physical problems (loss of voice, throat pain, difficulty breathing, itchy throat) while being exposed to a chemical called 'Dip 'N Grow' without proper ventilation or safety equipment. According to plaintiff, after she reported the issues to the human resources director, she was fired.

Defendant moves to compel arbitration pursuant to a mandatory arbitration provision contained in the Arbitration Agreement for New Hires. Campos Decl. (ROA # 29), Exhibit B. Plaintiff opposes the motion.

The court has carefully considered the arguments, authorities and evidence submitted by the parties.

The court finds that defendant has met its burden of demonstrating the existence of an agreement to arbitrate. Campos Decl. (ROA # 29), Exhibit B, Arbitration Agreement for New Hires. The court further finds that the causes of action asserted in the complaint are subject to the arbitration provision.

Turning to the issues of whether grounds exist for not enforcing the agreement, plaintiff argues that the agreement is both procedurally and substantively unconscionable.

'[T]here are degrees of procedural unconscionability. At one end of the spectrum are contracts that have been freely negotiated by roughly equal parties, in which there is no procedural unconscionability....

Contracts of adhesion that involve surprise or other sharp practices lie on the other end of the spectrum.

[Citation.] Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced [citation], contain a degree of procedural unconscionability even without any notable surprises, and 'bear within them the clear danger of oppression and overreaching.' [Citation.]' [Citation.] Calendar No.: Event ID: TENTATIVE RULINGS

2990091 CASE NUMBER: CASE TITLE: VELAZQUEZ VS. PLUG CONNECTION, LLC [IMAGED] 37-2023-00014059-CU-WT-NC We have instructed that courts must be 'particularly attuned' to this danger in the employment setting, where 'economic pressure exerted by employers on all but the most sought-after employees may be particularly acute.' Nguyen v. Applied Med. Res. Corp. (2016) 4 Cal. App. 5th 232, 246.

'Given the lack of choice and the potential disadvantages that even a fair arbitration system can harbor for employees, we must be particularly attuned to claims that employers with superior bargaining power have imposed one-sided, substantively unconscionable terms as part of an arbitration agreement.' Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 115. 'Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided. [Citations.] A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be 'so one-sided as to 'shock the conscience.''' Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246.

Both procedural and substantive unconscionability must be present for the court to refuse to enforce a contract under the doctrine of unconscionability although 'they need not be present in the same degree.' Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243. Essentially, the court applies a sliding scale to the determination: '[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.' Pinnacle, supra, 55 Cal.4th at 247.

In this case, the court finds that there is some degree of procedural unconscionability in this case. The agreement was presented as part of the employment on-boarding process, with little or no opportunity for the employee to negotiate new terms.

However, the court finds that the agreement is not substantially unconscionable.

On balance, the court is not persuaded that the agreement is unenforceable due to unconscionable.

For these reasons, the court grants the defendant's motion to compel arbitration.

This case is stayed pending further court order.

This is the tentative ruling for an appearance (in person or remote) hearing at 1:30 p.m. on Friday, September 1, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 1, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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2990091