Judge Teresa A. Beaudet, Case Number: 23STCV04239, Date: 2024-03-06 Tentative Ruling

Plaintiff Christopher Gomez (“Plaintiff”) filed this action on February 27, 2023 against Defendants Ecolab Inc. (“Ecolab”), Scott Hoffner, and Jon Rodriguez (collectively, “Defendants”). The Complaint alleges causes of action for (1) discrimination, (2) harassment,

(3) retaliation in violation of Government Code section 12940, et seq., (4) retaliation in violation of Labor Code section 1102.5, (5) failure to prevent harassment, discrimination, and retaliation, (6) failure to provide reasonable accommodations, (7) failure to engage in a good faith interactive process, and (8) wrongful termination in violation of public policy.

Defendants now move for an order compelling arbitration of Plaintiff’s claims and staying all further judicial proceedings pending resolution of this matter through arbitration. Plaintiff opposes.

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. Securities Corp. (1996) 14 Cal.4th 394, 413-414.)

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. ((Code Civ. Proc., § 1281.2); ((see Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” ((Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” ((Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. section 2, et seq.; ((Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

In the Complaint, Plaintiff alleges that on or about December 1, 2021, Plaintiff began his employment at Ecolab as a Sales Development Manager. (Compl., ¶ 11.)

Defendants submit the declaration of Katie Wiederhoeft, the “Senior Manager TA Technology and Enablement” at Ecolab. (Wiederhoeft Decl., ¶ 2.) Ms. Wiederhoeft states that Ecolab uses “Workday” as its Human Resources Information System, and that “Workday provides a web-based recruiting and application tracking system built for recruiting and hiring...” (Wiederhoeft Decl., ¶ 8.) She states that “[i]n order to ensure the individual receiving and digitally signing the job offer and on-boarding documents in the Workday Applicant Portal is the intended new hire, the new hire must use his/her unique login credentials to access the required on-boarding documentation in the Ecolab Applicant Portal.” (Wiederhoeft Decl., ¶ 14.) “To digitally sign the job offers and on-boarding documents, the new hire must enter his or her unique password into Workday Applicant Portal. The new hire then must click on the links to open, review, and digitally acknowledge or sign each document as required.” (Wiederhoeft Decl., ¶ 16.)

Ms. Wiederhoeft indicates that “[p]rior to being hired, an email is sent from Workday to the applicant’s personal email address included in his or her application. The email includes a link to the Applicant Portal to sign in and access certain job offer and pre-hire documents, including the Arbitration Agreement.” (Wiederhoeft Decl., ¶ 18.) She states that “[u]pon clicking the link, and signing into their applicant/candidate account in the Applicant Portal, the applicant is taken directly to an electronic version of certain job offers and pre-hire documents, including the Arbitration Agreement. The applicant is instructed to provide his or her electronic signature at the end of the document. Workday automatically populates the date the applicant types his or her electronic signature onto the form and records the date on a separate log.” (Wiederhoeft Decl., ¶ 19.)

Ms. Wiederhoeft states that Plaintiff “electronically signed the Arbitration Agreement by typing his name (‘Christopher Gomez’) on November 15, 2021, as indicated by the date typed below the electronic signature (‘Christopher Gomez (Nov, 15, 2021 09:35 PST)’).” (Wiederhoeft Decl., ¶ 20.) Ms. Wiederhoeft attaches as Exhibit B to her declaration a copy of the subject “Ecolab Mediation and Arbitration Agreement” (herein, the “Arbitration Agreement”). (Wiederhoeft Decl., ¶ 20, Ex. B.) The Arbitration Agreement provides, inter alia, as follows:

“The Ecolab Mediation and Arbitration Agreement (‘Agreement’) is designed to provide an easy-to-use method for the cost-effective and prompt resolution of Disputes (as defined below) between the Company and the Company’s present and former Associates. Resolution of Disputes through the Agreement is typically less expensive and quicker than traditional litigation. The Agreement is intended to create a procedural mechanism for the final resolution of all Disputes falling within its terms. Neither the Company nor its present and former Associates may commence an action in court concerning a Dispute covered by the Agreement. The Agreement should be interpreted in accordance with these purposes.” (Wiederhoeft Decl., ¶ 20, Ex. B, ¶ 1.)

The Arbitration Agreement provides that “Dispute” “means any and all claims or controversies alleging violations of federal, state, local or common law between an Associate and the Company (and vice versa) arising out of or in any way related to the application for employment, employment or cessation of employment with the Company, including all previously unasserted claims prior to the date of this Agreement.” (Wiederhoeft Decl., ¶ 20, Ex. B, ¶ 2(F).) The Arbitration Agreement further provides that “[t]he term ‘Dispute’ includes, without limitation, claims, demands or actions under Title VII of the Civil Rights Act of 1964, the Civil Rights Acts of 1866 and 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, the Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the Equal Pay Act of 1963 and all amendments thereto and any other federal, state or local statute, regulation or common law doctrine regarding employment, employment discrimination, the terms and conditions of employment, termination of employment, compensation, overtime, breach of contract, retaliation, whistleblowing, defamation or employment-related tort.” (Ibid.)[1] In addition, the Arbitration Agreement provides that “[a]ll Disputes shall be finally and conclusively resolved by final and binding arbitration before a neutral third party.” (Wiederhoeft Decl., ¶ 20, Ex. B, ¶ 3.)

Defendants assert that “Plaintiff’s claims in this lawsuit fall within the scope of the Agreement, which provides that any and all claims that arise out of or relate to employment with or termination from Ecolab, including claims that involve a current or former Ecolab employee, will be subject to binding arbitration.” (Mot. at p. 6:25-28.)

Plaintiff does not dispute that he signed the Arbitration Agreement or that it covers the claims alleged by Plaintiff in the Complaint. Therefore, the Court finds that the burden now shifts to Plaintiff to prove a ground for denial.

Plaintiff asserts that Defendants have waived any right to compel arbitration here.

“In determining waiver, a court can consider (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (internal quotations omitted).) “State law, like the FAA, reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims…Although a court may deny a petition to compel arbitration on the ground of waiver (§ 1281.2, subd. (a)), waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.” (Id. at p. 1195.)[2]

In his supporting declaration, Plaintiff’s counsel states that “[o]n May 16, 2023, Plaintiff’s counsel met and conferred with Defendants’ counsel in advance of the June 28, 2023 Case Management Conference. During that phone call, Defendants’ counsel verbally represented to me Defendants’ intent to participate in litigation by stating that Defendants were leaning against arbitration.” (Ramirez Decl., ¶ 2.)

Plaintiff notes that on June 13, 2023, Defendants filed a Case Management Statement in advance of a June 28, 2023 Case Management Conference. Plaintiff notes that Defendants’ Case Management Statement states that Defendants request a nonjury trial, and that Defendants estimate that the trial will take 5-7 days. (See Case Management Statement Items 5, 7(a).) Item 10(c) of the Case Management Statement provides, “The party or parties completing this form are willing to participate in the following ADR processes (check all that apply):…” As noted by Plaintiff, this Item of Defendants’ June 13, 2023 Case Management Statement is blank. Plaintiff also notes that Defendants checked Item 6(b) of the Case Management Statement, which provides, “[n]o trial date has been set. This case will be ready for trial within 12 months of the date of the filing of the complaint…” In addition, the Attachment to Defendants’ June 13, 2023 Case Management Statement lists “[d]ates on which parties or attorneys will not be available for trial…”

Plaintiff’s counsel states that “[o]n June 28, 2023, Defendants’ counsel and Plaintiff’s counsel appeared at the Case Management Conference slated for that morning. Defendants’ counsel and I confirmed our agreement with the Court to a Jury Trial to be set for May 29, 2024 at 09:30 a.m. and to submit our Trial Readiness/Exhibit Binder by May 10, 2024, among other things.” (Ramirez Decl., ¶ 4.)

Plaintiff’s counsel also indicates that on October 2, 2023, Defendants’ counsel emailed Plaintiff’s counsel stating, inter alia, that Defendants’ counsel is “in receipt of the following discovery requests due 10/18/2023…In the interest of resolving this case expeditiously, are you agreeable to pausing the deadline to respond to the above discovery requests?” (Ramirez Decl., ¶ 6, Ex. C.) Plaintiff’s counsel indicates that on November 9, 2023, he sent a letter to Defendants’ counsel which asserts, inter alia, that “rather than provide code compliant responses to properly propounded discovery requests, Defendants have once again elected to employ improper delay tactics as part of their continued effort to obstruct Plaintiff’s right to prosecute his case. Defendants responses, which only assert objections to each request, are obviously deficient.” (Ramirez Decl., ¶ 10, Ex. G.) Plaintiff argues that Defendants’ objections to Plaintiff’s discovery “effectuate their desire to further delay Plaintiff’s prosecution of his case and stifle the litigation process.” (Opp’n at p. 4:19-20.)

Plaintiff asserts that “Defendants have at all times prior to filing their motion to compel on February 2, 2024, invoked the machinery of litigation…” (Opp’n at p. 6:21-22.) Plaintiff further asserts that “[i]nconsistent with any right to arbitrate, Defendants participated in meet and confer conferences with counsel for Plaintiff and represented their intent to participate in litigation, including making clear their preference to not pursue arbitration, meeting and conferring regarding timelines for discovery and depositions, requesting extensions to respond to discovery based solely on purported efforts to try to informally resolve the matter short of trial.” (Opp’n at p. 6:24-28.) Plaintiff asserts that “[a]dditionally inconsistent with the right to arbitrate, Defendants have made multiple, inconsistent representations to this Court, including but not limited to: its desire for ‘5-7’ day ‘nonjury trial,’ that ‘[t]his case will be ready for trial within 12 months of the date of the filing of the complaint,’ which dates they were not available for trial, etc.” (Opp’n at p. 6:28-7:4.)

In the reply, Defendants assert that “[a] mandatory case management statement and discovery objections, without more, do not constitute invoking the ‘litigation machinery’…” (Reply at p. 1:17-19.) Defendants cite to Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 993-994, where the Court of Appeal found that “the Bank’s conduct in the 10 months prior to filing the motion to compel was inconsistent with an intent to arbitrate. The Bank had the responsibility to timely seek relief either to compel arbitration or dispose of the lawsuit, before the parties and the court have wasted valuable resources on ordinary litigation. In the ten months between service of the complaint and the motion to compel, the Bank filed two demurrers, one cross-complaint, and one motion to transfer the case to the municipal court. The Bank also participated in five trial court hearings, including two status conferences, and extensive discovery. The Bank actively litigated the case and never objected to the court’s setting a trial date or to the discovery propounded by Sobremonte and Esperidion on grounds of arbitration.” (Internal quotations and citations omitted.)

Defendants assert that “[n]o such substantive participation occurred here. In fact, the only actions Defendants have participated in were to attend a mandatory Case Management Conference, a mandatory Status Conference, and an Ex Parte Hearing to advance Defendants’ Motion to Compel Arbitration hearing. After being served with Plaintiff’s voluminous sets of discovery, Defendants provided objections only, and represented that Defendants did not intend on waiving their right to arbitration. Nor did Defendants propound any discovery of their own, notice any depositions, attend any other hearings, or file any other motions or counterclaims.” (Reply at p. 4:17-23.)[3] As set forth above, two of the factors articulated by the St. Agnes Court are “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings,” and “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place…” (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1196 (internal quotations omitted).)

In light of the foregoing, the Court agrees with Defendants that Plaintiff has not shown that “the litigation machinery has been substantially invoked” here. (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1196.)

Defendants also contend that they have “taken every opportunity to assert their arbitration right…” (Reply at p. 4:2.) In his declaration in support of the opposition, Plaintiff’s counsel acknowledges that on July 17, 2023, Defendants’ counsel emailed Plaintiff’s counsel stating “I am meeting with my client this Wednesday to discuss potential mediation and/or arbitration…” (Ramirez Decl., ¶ 5, Ex. B.) Plaintiff’s counsel also acknowledges that on October 10, 2023, Defendants’ counsel emailed Plaintiff’s counsel stating, inter alia, that “[a]s you are aware, Christopher Gomez signed a binding arbitration agreement on 11/15/2021. (See attached Mediation and Arbitration Agreement). We are requesting that the parties stipulate to arbitration to avoid the unnecessary expense and cost of litigating this matter.” (Ramirez Decl., ¶ 8, Ex. E.) Defendants also note that their answer to the Complaint alleges an affirmative defense concerning the Arbitration Agreement, specifically, that “[t]his Court lacks jurisdiction to the extent there is a valid, enforceable, and mandatory arbitration agreement that governs the adjudication of Plaintiff’s claims.” (See Defendants’ May 25, 2023 Answer to Complaint, ¶ 2.) Based on the foregoing, the Court does not find that Plaintiff has shown that “the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate.” (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1196.)

In the opposition, Plaintiff also notes that the instant motion was filed on February 2, 2024, a little less than a year after this action was filed on February 27, 2023. Plaintiff contends that “any and all benefits of a speedy resolution Plaintiff could have obtained through arbitration have been lost.” (Opp’n at p. 7:25-27.) Defendants counter that “[a]ny delay was related to Defendants’ hope to obtain a stipulation and negotiate a resolution…” (Reply at p. 1:8-9.)

Plaintiff further contends that “defendants’ bad faith in delaying arbitration further supports that they waived any right to arbitration because the only reason they now file the motion to compel at issue is to improperly derail the scheduled trial for which they have failed to adequately prepare.” (Opp’n at p. 7:16-18.) The Court does not find that Plaintiff has presented evidence supporting this assertion.

Based on the foregoing, the Court does not find that Plaintiff has demonstrated that Defendants waived their right to compel arbitration. As discussed, “[a]lthough a court may deny a petition to compel arbitration on the ground of waiver (§ 1281.2, subd. (a)), waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.”

Procedural unconscionability concerns the manner in which the contract was negotiated and the parties’ circumstances at that time. It focuses on the factors of oppression or surprise. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.) “Oppression generally takes the form of a contract of adhesion, 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. In the case of arbitration agreements in the employment context, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 (internal quotations and citations omitted).) “Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486 (internal quotations omitted).)

Plaintiff argues that here, “[t]he element of procedural unconscionability is easily satisfied as the arbitration agreement is a contract of adhesion between parties with unequal bargaining power.” (Opp’n at p. 9:11-12.) In addition, in his supporting declaration, Plaintiff states that “[a]t no time did Ecolab Inc.’s representatives explain to me what arbitration is, what the arbitration process entails, what were the consequences of accepting the arbitration agreement, or advise me to consult with an attorney about this for advice.” (Gomez Decl., ¶ 2.) Plaintiff further states that “[n]o one at Ecolab Inc. told me that I would have to arbitrate any claims against Ecolab Inc. or about what arbitration was all about or how arbitration was different from filing my case in court.” (Gomez Decl., ¶ 3.)

The Court notes that while it is true that “¿the existence of contract of adhesion supports a finding of procedural conscionability,¿” a court must still weigh the level of procedural unconscionability against any substantive unconscionability to determine whether the agreement can be enforced. (¿¿Baxter v. Genworth North America Corp. (2017) 16 Cal.App.5th 713, 723¿¿.) “When…there is no other indication of oppression or surprise, ‘the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’¿” (¿¿Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704¿¿.)

Plaintiff also notes that the Arbitration Agreement provides that “[t]he Arbitration will be conducted in accordance with the AAA Employment Arbitration Rules, available at www.adr.org.” (Wiederhoeft Decl., ¶ 20, Ex. B.) Plaintiff asserts that the Arbitration Agreement is procedurally unconscionable because it only refers Plaintiff to a website containing the rules.

Plaintiff cites to Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 721, where the Court of Appeal found that “NCR’s ACT policy similarly incorporates arbitration rules that were not attached and requires the other party to go to another source in order to learn the full ramifications of the arbitration agreement. The policy poses the potential for preliminary legal battles, as well, by failing to address whether modified AAA rules or only those AAA rules in effect at the time the policy was implemented apply to employment disputes.”

In the reply, Defendants assert that “Plaintiff’s argument that the Arbitration Agreement is unconscionable because it does not attach a copy of the ADR rules fails because the rules are readily available in their entirety online.” (Reply at pp. 6:27-7:1.) Defendants cite to Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 691-692, where the Court of Appeal noted as follows:

“[I]n Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702 [13 Cal. Rptr. 3d 88] (Fitz), the arbitration provision in the employment agreement allowed a different and separate written policy to limit the discovery permitted under AAA rules, yet the employer did not disclose that policy to its employees. (Id. at pp. 721–723.) In addition, the appellate court found not only that the arbitration agreement was a contract of adhesion, but that there was a ‘high degree of oppressiveness.’ (Id. at p. 722.) As Fitz and the preceding cases show, the failure to attach the arbitration rules was of ‘minor significance to [the courts’] analys[e]s’ of procedural unconscionability. (Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737 [153 Cal. Rptr. 3d 78] [finding no procedural unconscionability despite failure to provide a copy of AAA rules].)

Here, we conclude the failure to attach a copy of the AAA rules did not render the agreement procedurally unconscionable. There could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties—the AAA rules are available on the Internet. (See Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 505, fn. 6 [30 Cal. Rptr. 3d 787, 115 P.3d 68] [full, up-to-date text of AAA rules is available on AAA's Internet site]). In addition, Lane—a formerly well-paid professional analyst—does not appear to lack the means or capacity to locate and retrieve a copy of the referenced rules. Finally, the arbitration agreement at issue clearly specified a particular set of AAA rules, and it did not modify those rules in any manner. In the absence of oppression or surprise, we decline to find the failure to attach a copy of the AAA rules rendered the agreement procedurally unconscionable.”

In the opposition, Plaintiff also notes that the Arbitration Agreement provides that “[t]o the extent there is any conflict between the AAA rules and this Agreement, the terms of this Agreement shall control.” (Wiederhoeft Decl., ¶ 20, Ex. B.) Plaintiff asserts that “Defendants further required Plaintiff to cross-reference the rules on the AAA rules with the procedures in the Agreement to determine which procedures are applicable to arbitration proceedings.” (Opp’n at p. 10:12-13.) But Plaintiff does not appear to cite to legal authority demonstrating that this renders the Arbitration Agreement procedurally unconscionable.

Based on the foregoing, the Court finds that Plaintiff has demonstrated that the Arbitration Agreement has a low level of procedural unconscionability.

Plaintiff also asserts that the Agreement is substantively unconscionable. “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided. 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.” (Carmona v. Lincoln Millennium Car Wash, Inc., supra, 226 Cal.App.4th at p. 85 [internal quotation and citation omitted].)

Plaintiff notes that the Arbitration Agreement here provides that “[t]he award shall be in writing, shall explain the legal and factual basis of the award, and shall be signed by the arbitrator.” (Wiederhoeft Decl., ¶ 20, Ex. B.) Plaintiff argues “[t]hat the arbitration agreement says nothing about the right of appeal or judicial review clearly runs afoul to Armendariz’s mandate that an arbitration provision provide for an adequate judicial review process.” (Opp’n at p. 11:14-16.) In Armendariz, the California Supreme Court noted that “[a]lthough judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute at issue.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 106 [internal quotations omitted].) However, Plaintiff does not appear to cite to any portion of the Armendariz opinion providing that an arbitration agreement must contain a provision providing “for an adequate judicial review process.” (Opp’n at p. 11:15-16.)

The Arbitration Agreement also provides that “[t]o initiate arbitration, either the Associate or the Company must file a written Demand for arbitration with the American Arbitration Association at any office of the AAA in accordance with the AAA Employment Arbitration Rules.” (Wiederhoeft Decl., ¶ 20, Ex. B.) Plaintiff contends that “it is likely that Defendants are a repeat player and therefore, the AAA might not be a disinterested company.” (Opp’n at p. 11:19-20.) The Court notes that Plaintiff does not provide evidence to support this assertion.

Based on the foregoing, the Court does not find that Plaintiff has demonstrated that the Arbitration Agreement is substantively unconscionable. “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114 [internal emphasis omitted].)

In light of the foregoing, the Court does not find that Plaintiff has met his burden of demonstrating that the Arbitration Agreement is unenforceable due to unconscionability.

For the foregoing reasons, Defendants’ motion to compel arbitration is granted.

The entire action is stayed pending completion of arbitration of Plaintiff’s arbitrable claims against Defendants.

The Court sets an arbitration completion status conference on March 6, 2025, at 10:00 a.m. in Dept. 50. The parties are ordered to file a joint report regarding the status of the arbitration five court days prior to the status conference, with a courtesy copy delivered directly to Department 50.¿¿

[1]As to Defendants Scott Hoffner and Jon Rodriguez, the Court notes that the Arbitration Agreement provides that “Company” “means Ecolab and its subsidiaries, divisions and business units; any entity or person alleged to have joint and several liability concerning any Dispute; all of their directors, officers, employees and agents; every plan of benefits established or maintained by any such entity; the fiduciaries, agents and employees of all such plans; and the successors and assigns of all such entities, plans and persons.” The Complaint in this action alleges that “Plaintiff is informed and believes…that at all times relevant hereto, Defendants, and each of them, were the agents, employees, managing agents, supervisors, coconspirators, parent corporation, joint employers, alter egos, successors, and/or joint ventures of the other Defendants, and each of them, and in doing the things alleged herein, were acting at least in part within the course and scope of said agency, employment, conspiracy, joint employer, alter ego status, successor status and/or joint venture and with the permission and consent of each of the other Defendants.” (Compl., ¶ 7.)

[2]Plaintiff also cites to Morgan v. Sundance, Inc. (2022) 596 U.S. 411, where the United States Supreme Court noted that “[u]sually, a federal court deciding whether a litigant has waived a right does not ask if its actions caused harm. But when the right concerns arbitration, courts have held, a finding of harm is essential: A party can waive its arbitration right by litigating only when its conduct has prejudiced the other side. That special rule, the courts say, derives from the FAA’s ‘policy favoring arbitration.’” The Morgan Court “granted certiorari to decide whether the FAA authorizes federal courts to create such an arbitration-specific procedural rule,” and held that “it does not.” (Ibid.) The Court found that “the Eighth Circuit was wrong to condition a waiver of the right to arbitrate on a showing of prejudice.” (Id. at pp. 1712-1713.)

[3]The Court notes that Plaintiff does not assert in the opposition that Defendants propounded any discovery or noticed any depositions. Defendants filed an ex parte application on February 7, 2024 for an order shortening time to hear Defendants’ motion to compel arbitration. The docket for this action does not appear to show that Defendants filed any other motions (other than the instant motion), any demurrer, or any counterclaims.

Superior Court of California

County of Los Angeles

Department 50