Judge: Stephen P. Pfahler, Case: 21CHCV00979, Date: 2023-04-28 Tentative Ruling

Case Number: 21CHCV00979    Hearing Date: April 28, 2023    Dept: F49

Dept. F-49

Date: 4-28-23

Case #21CHCV00979

Trial Date: 8-21-23 c/f 5-8-23

ARBITRATION

MOVING PARTY: Plaintiff, Marlon Ramirez

RESPONDING PARTY: Unopposed/Defendant, Thibian International, Inc.

RELIEF REQUESTED

Motion to Compel Arbitration

SUMMARY OF ACTION

Plaintiff Marlon Ramirez was employed by Defendant Thiblant International, Inc. from approximately September 2015 until his termination on April 21, 2021. Plaintiff was employed as a Production Helper/Maintenance. Plaintiff alleges prior complaints about insufficient safety equipment for his job duties. On an unspecified date in February 2021, oil “poured on Plaintiff’s left foot and caused burns all over his body.”

Plaintiff requested time off, but the request was denied. Plaintiff alleges he was threatened with termination if he failed to appear for work, as well as discriminatory treatment due to race and/or national origin. Plaintiff is a Spanish speaker with limited English speaking skills.

On November 25, 2020, Plaintiff filed a ten cause of action complaint for Wrongful Termination (Breach of Contract), Wrongful Termination (Public Policy Violations), Harassment in Violation of FEHA, Failure to Prevent Discrimination and Harassment, Breach of Implied Covenant of Good Faith and Fair Dealing, Race Discrimination, Retaliation, Medical Disability Discrimination, Failure to Provide Reasonable Accommodation in Violation of FEHA, and Intentional Infliction of Emotional Distress. On March 10, 2022, the court overruled the demurrer to the complaint. Defendant answered on March 15, 2022.

On December 29, 2022, the court granted the ex parte motion staying the action pending the hearing on the motion to compel arbitration.

RULING: Granted.

Plaintiff Marlon Martinez moves to compel arbitration of the action. Plaintiff brings the motion based on the terms of the employment agreement. Plaintiff maintains the delay in bringing the motion was the result of only receiving the employment file through discovery, whereby the arbitration clause within the employment agreement was first discovered. The court electronic filing system shows no opposition from defendant Thiblant International, Inc. at the time of the tentative ruling publication cutoff. Plaintiff filed a notice of non-opposition, which included a reiterated reply of the arguments compelling arbitration.

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 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 the revocation of the agreement.” (Code Civ. Proc., § 1281.2.)

The law creates a general presumption in favor of arbitration. In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.) Any challenges to the formation of the arbitration agreement should be considered before any order sending the parties to arbitration. The trier of fact weighs all evidence, including affidavits, declarations, documents, and, if applicable, oral testimony to determine whether the action goes to arbitration. (Hotels Nevada v. L.A. Pacific Ctr., Inc., supra, 144 Cal.App.4th at p. 758.)

The relevant sections of the arbitration clause are presented: “Any dispute arising between you and Thibiant will be resolved by arbitration in accordance with Thibiant's Arbitration Policy which is included in the Employee Handbook that you will receive. By accepting this offer, you agree to waive your right to a court or jury trial, and you acknowledge that all claims that may lawfully be resolved by arbitration will be decided by a neutral arbitrator whose decision will be final and may not be appealed.”

The court finds no dispute as to the existence of the arbitration agreement. [Declaration of Christian Oronsaye.] The language of the agreement clearly covers the subject matter of the action. As moving party, Plaintiff raises no defenses to arbitration.

The action is therefore ordered to arbitration in compliance with the terms of the agreement and employee handbook. In the absence of selection criteria, the court cites to the applicable code section:

If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

(Code Civ. Proc., § 1281.6.)

The participating parties are to select an arbitration organization and/or individual arbitrator. If the parties cannot agree on an organization, or arbitrator, the court orders the parties to submit a list of one to two organizations and/or arbitrators from each party, where the court will select the organization or individual. The parties have 30 days from the date of this order to begin the selection process, with any proposed list due the day after the lapse of the 30 day period. (Code Civ. Proc., § 1281.6.)

“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.” (Code Civ. Proc., § 1281.4.) The action is stayed.

The court will set an OSC re: Status of Arbitration and Stay at the time of the hearing.

Plaintiff to provide notice.