Judge: Stephen P. Pfahler, Case: 24STCV03812, Date: 2024-10-02 Tentative Ruling

Case Number: 24STCV03812    Hearing Date: October 2, 2024    Dept: 68

Dept. 68

Date: 10-2-24

Case #24STCV03812

Trial Date: Not Set

ARBITRATION

MOVING PARTY: Defendants, HEXPOL Holding, Inc. and Kirkhill Rubber Company, Inc.

RESPONDING PARTY: Plaintiff, Johny Callejas

RELIEF REQUESTED

Motion to Compel Arbitration

SUMMARY OF ACTION

Plaintiff Johnny Callejas was a 22 year employee with Defendants HEXPOL Holding, Inc. and Kirkhill Rubber Company, Inc., when injuries to Plaintiff’s shoulders and knees from work related activities required physician imposed restrictions. Plaintiff maintains Defendants failed to sufficiently accommodate Plaintiff, thereby leading to termination.

On February 14, 2024, Plaintiff filed a complaint against Defendants for 1. Disability Discrimination in Violation of Gov. Code § 12940 et seq.; 2. Failure to Accommodate Disability in Violation of Gov. Code § 12940(m); 3. Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n); 4. Retaliation in Violation of Gov. Code § 12940(h); 5. Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k); 6. Wrongful Termination in Violation of Public Policy.

RULING: Continued for Evidentiary Hearing.

Evidentiary Objections to the Declaration of Todd Mowery: Overruled on Foundation and Personal Knowledge/Sustained on Hearsay regarding purported statements to Murua regarding request to review the document, or lack of questions to Murua or anyone else at employer office.

Defendants HEXPOL Holding, Inc. and Kirkhill Rubber Company, Inc. move to compel arbitration on the complaint of plaintiff Johny Callejas. Defendants move to compel arbitration based on the arbitration provision in the “Arbitration Agreement.” Defendants maintain all claims in the operative complaint are subject to arbitration under the terms of the agreement. Plaintiff in opposition denies the existence of a valid executed agreement, and enforcement presents unconscionable terms. Defendants in reply reiterate the execution of the agreement and coverage of the dispute by said agreement, and denies any unconscionability. Defendants in reply maintain the existence of executed agreement, and no basis for denial of enforcement. Defendant submits a supplemental declarations in support. Defendant requests an evidentiary hearing on the signatures.

“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. “‘Under “both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.”’” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 861.) “Private arbitration is a matter of agreement between the parties and is governed by contract law. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313.) 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; Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164–165; 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.)

Defendants present both a copy of the “Mutual Agreement to Arbitrate.” [Declarations of Todd Mowery and Shiva Razipour, Ex. A.] The January 24, 2023, dated agreement shows two signatures—one with the printed name of Jony Callejas De Paz, and a second less legible signature from “HR Mgr.” According to Mowery, this is the signature of “Mr. Murua.”

Plaintiff categorically denies ever signing said agreement. The challenge is presented in three sentences: “7. Hector Murua did not provide me with the purported arbitration agreement. I did not receive an arbitration agreement from Defendants. I do not recognize the purported arbitration agreement. 8. Hector Murua did not ask me to sign the purported arbitration agreement. Nor did I sign the purported arbitration agreement. 9. The signature on the arbitration agreement is not mine. In addition, my name is spelled incorrectly on the printed name portion of the arbitration agreement.” [Mowery Decl., Ex. A.]

Mowery maintains the company obtained signatures of all current employees as part of an “update” in 2023. Employees were given the option or rejecting the agreement. [Mowery Decl., 9.] The court finds no basis to dispute the policy or presentation of agreements to employees. While continued employment by Plaintiff can constitutes a basis for a finding of acceptance of the arbitration agreement, the option of allowing an employee to remain employed even if rejecte renders any finding of de facto acceptance inapplicable. (See Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1508 accord Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420-421.)

The denial of execution of the agreement finds support in that Plaintiff’s name is spelled incorrectly and the represented signature on the form appears different than representation provided in the declaration of Plaintiff. Defendants concede to the differences in reply.

The court finds the hearsay objection to the Mowery declaration regarding the purported communications with Mr. Murua, and the discrepancy in spelling and signature sufficient to render the execution of the agreement in question. The declaration of Hector Murua and supplemental declaration of Todd Mowery in reply seek to shore up the shortcomings in the motion, but considering such a late submitted item unfairly deprives Plaintiff of an opportunity to challenge the made representations.

Normally, the court would deny the motion given the failure of the moving party to establish a valid agreement, but because of the factual discrepancy and specific request for an evidentiary hearing, the court is compelled to conduct further review. The court therefore sets an evidentiary hearing for January 16, 2025. Court calendars are significantly impacted, and the court lacks any earlier spots given the attention required for the subject item.

The parties may submit supplemental declarations only from the witnesses to the transaction, and any declaration of a handwriting expert. The court will not consider any new points and authorities or additional exhibits except in support of the limited and narrow consideration of the purported executed signature on the represented date in question.

Upon the determination of the authenticity of the signature, the court will either deny the motion on the basis of the lack of a valid agreement, or continue with the Plaintiff’s burden in establishing the unconscionability defenses to enforcement. The court reserves a date of February 18, 2025, for the follow-up hearing on the motion to compel arbitration following the evidentiary hearing.

The court will concurrently conduct the case management conference.

Moving Defendants to give notice.