Judge: Stephen I. Goorvitch, Case: 22STCV18728, Date: 2022-10-19 Tentative Ruling

Case Number: 22STCV18728    Hearing Date: October 19, 2022    Dept: 39

Alex Herrera v. Gardaworld, et al.

Case No. 22STCV18728

Motion to Compel Arbitration

            Plaintiff Alex Herrera (“Plaintiff”) filed this wrongful termination action against Gardaworld and Whelan Security of California, Inc. (collectively, “Defendants”), as well as William Cole.  Now, Defendants move to compel arbitration. 

The moving party on a petition to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.”  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal quotations and citations omitted.) 

            In or about December 2019, Whelan Security of California, Inc. d/b/a GardaWorld Security Services purchased 100% of the outstanding shares of Pacific Protective Services, Inc.  (Declaration of Sarah Becker, ¶ 6.)  Plaintiff then became an employee of Defendants and completed employment paperwork, which included an arbitration agreement.  (Id., ¶¶ 6, 10.)  Plaintiff signed the arbitration agreement on January 10, 2020, at 3:51 p.m.  (Id., ¶¶ 17, 18.)  The arbitration agreement contained an opt out provision stating that an employee “has the right to opt out of this Arbitration Agreement.”  (Id., ¶ 19 & Exh. E.)  The employee “must notify the Company in writing by sending an email to the Company’s corporate office at youmatter@garda.com within ten (10) days from the date Employee executes this Agreement.”  (Id., ¶ 19 & Exh. E.)  Plaintiff admits that he signed the arbitration agreement.  (Declaration of Alex Herrera, ¶¶ 5-10.)  Plaintiff states that “there was not [an] option to ‘opt out’ of the arbitration contract . . . .”  (Id., ¶ 7.)  However, the “Right to Opt Out” is clearly labeled—in bold and underline—on the page before his signature.  (Declaration of Sarah Becker, Exh. E, ¶ 14.)  Therefore, the Court finds that there was a valid arbitration agreement in this case.

            The arbitration agreement covers the instant dispute.  (Id., Exh. E, ¶ 2.)  The arbitration agreement states (in a separate box and written in all capital letters and bold type): “THIS AGREEMENT IS COVERED BY AND MADE PURSUANT TO THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ).”  (Id., Exh. E, p. 3.)  Plaintiff argues that the Federal Arbitration Act (the “FAA”) does not apply to this case because “neither Plaintiff’s employer nor the alleged arbitration agreement involved interstate commerce . . . .”  (Plaintiff’s Opposition, p. 6:18-19.)  However, a choice of law provision in an arbitration agreement is enforceable.  (See Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538.) 

Because the FAA applies, the Court cannot invalidate the arbitration agreement at issue based on rules that apply specifically to arbitration agreements.  (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)  The Court has considered Plaintiff’s arguments and finds that the arbitration agreement is not unconscionable.

Based upon the foregoing, the Court orders as follows:

1.         The Court grants Defendants’ motion to compel arbitration.

2.         The Court stays the case with respect to Defendant William Cole. 

3.         The Court orders the parties to meet-and-confer whether Defendants’ counsel will represent Mr. Cole and whether the parties will stipulate to proceed by way of arbitration with respect to Mr. Cole based upon this order.

4.         The Court takes the case management conference off-calendar.  The Court sets an Order to Show Cause why this case should not be dismissed with prejudice following arbitration.  The OSC hearing shall be held on March 20, 2023, at 8:30 a.m.  The Court provides notice that if Plaintiff’s counsel does not appear, absent good cause, the Court will assume the case has been resolved by way of settlement or arbitration and shall dismiss the case with prejudice.

5.         Defendants’ counsel shall provide notice and file proof of such with the Court.